Transition Services Agreement between Nortel Networks NA Inc. and NETGEAR, Inc.

Contract Categories: Business Operations › Services Agreements
Summary

This agreement is between Nortel Networks NA Inc. and NETGEAR, Inc. It sets out the terms under which Nortel Networks will continue to provide management, consulting, and financial services to NETGEAR after NETGEAR is no longer a subsidiary. The agreement details the types of services, how they may be amended, and the process for NETGEAR to become independent of Nortel Networks. Either party can terminate services with notice, and both must work together to transition NETGEAR to self-sufficiency within a set period.

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EX-10.14 24 f65217orex10-14.txt EXHIBIT 10.14 1 EXHIBIT 10.14 TRANSITION SERVICES AGREEMENT THIS TRANSITION SERVICES AGREEMENT ("Agreement") entered into with effect as of the ______ day of March, 2000 (the "Effective Date"). BY AND BETWEEN: NORTEL NETWORKS NA INC., a Delaware corporation and a wholly-owned subsidiary of Nortel Networks Inc. ("NNI"), with offices located at 4401 Great America Parkway, Santa Clara, CA 95052 on behalf of itself and its Affiliates (hereinafter referred to as "NNNAI"), 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"). RECITALS: WHEREAS, prior to the Effective Date, NETGEAR was a wholly-owned subsidiary of NNNAI; and WHEREAS, until the Effective Date, NNNAI, together with its parent companies NNC and NNI (collectively, "Nortel Networks"), have provided administrative, financial, management and other services to NETGEAR; and WHEREAS, from and after the Effective Date, NETGEAR desires Nortel Networks to continue to provide management, consulting and financial services to NETGEAR and Nortel Networks is willing to provide such services to NETGEAR on the terms and subject to the conditions set forth herein; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: SECTION 1 TRANSITION SERVICES 1.1 DEFINITIONS Unless otherwise defined herein, capitalized terms used herein have the meanings ascribed to such terms in the Purchase Agreement. "Affiliate" means any person or entity directly or indirectly controlling, controlled by or under direct or indirect common control with, another person or entity. 1 2 "Services" means (i) the services described on Schedule 1.1 attached hereto, (ii) such other services as may be agreed to in writing from time to time by NETGEAR and Nortel Networks, as evidenced by an amendment to Schedule 1.1 attached hereto pursuant to Section 8.11 (Amendment) hereof; and (iii) the Services, with such modifications as are required to reflect changes in Nortel Networks' procedures, policies and services as described in Section 1.6(c) (Policies and Procedures) hereof, whether or not evidenced by an amendment. NETGEAR may unilaterally elect to terminate some or all of the Services, by delivering written notice to Nortel Networks of its desire to terminate, not less than thirty (30) days prior to the effective date of such termination. 1.2 PARTIES For the convenience of the parties hereto, and/or for more favorable tax treatment or any other reason, the parties agree that the delivery and acceptance, respectively, of Services under this Agreement may be made directly by the parties hereto, and/or indirectly through an Affiliate of such party. In any instance where a particular Service hereunder is to be either delivered or accepted by an Affiliate instead of a party hereto, a blanket work order with respect to such Service substantially in the form of Exhibit A hereto (an "Order"), shall be executed by NETGEAR (or Affiliate of NETGEAR, as applicable) and accepted by Nortel Networks (or an Affiliate of Nortel Networks, as applicable). The entities that issue and accept any such Order shall, upon such issuance and acceptance, become parties to this Agreement as of such date, as fully and completely as if they had executed this Agreement on the date hereof. Such Order shall create contractual rights and obligations under this Agreement solely between the entity that issues such Order and the entity that accepts it. Additionally, in the case of Nortel Networks, certain Services may be provided by a third-party provider with whom Nortel Networks or a Nortel Networks Affiliate has contracted for such Service. In such instances, Nortel Networks or the Nortel Networks Affiliate who has contracted with such third-party provider shall be the party to this Agreement that is deemed to be providing such Service through its third-party subcontractor. 1.3 AGREEMENT TO PROVIDE SERVICES Subject to the terms and conditions hereof, during the Term (as hereinafter defined), NETGEAR hereby engages Nortel Networks, and Nortel Networks hereby accepts such engagement, to provide Services to NETGEAR, either directly or through an Affiliate as provided in Section 1.2 (Parties). NETGEAR acknowledges and agrees that access to and use of the Services is provided solely for the use of NETGEAR (or its Subsidiaries or Affiliates pursuant to an Order) during the Term of the Agreement. NETGEAR shall not allow access to or use of Services by any third party without the prior written consent of Nortel Networks, which consent may be granted or withheld in Nortel Networks' sole discretion. NETGEAR shall use its best efforts to become independent of Nortel Networks with respect to each of the Services as soon as commercially practicable. 2 3 1.4 TERMINATION TEAM Nortel Networks and NETGEAR shall each appoint an employee to be responsible for planning the process through which NETGEAR will become independent of Nortel Networks with respect to each of the Services by no later than the end of the Term (or such earlier date as may be specified on Schedule 1.1), through NETGEAR providing the service for itself or directly engaging third parties to provide such services. These individuals (the "Termination Team") shall meet no less frequently than monthly. 1.5 PERIODIC REVIEW NETGEAR and Nortel Networks agree to jointly review the status of the Termination Team's efforts, the Services and fees listed on Schedule 1.1 on a regular basis, but in no event less frequently than quarterly. If such review indicates that amendments are necessary, as a result of changes in scope, volume, frequency or nature of the Services requested or otherwise, and such proposed amendments are agreeable to both parties, such amendments shall be implemented pursuant to Section 9.11 (Amendments) hereof. 1.6 LIMITATIONS Nortel Networks and/or NETGEAR agree as follows, as applicable, and NETGEAR hereby acknowledges the following limitations with respect to Nortel Networks' provision of the Services: 1.6.1 MANNER OF PERFORMANCE Nortel Networks agrees that it will endeavor to perform the Services hereunder with the same degree of care, skill and diligence with which it performs similar services for itself, consistent with past practices, including, without limitation, with respect to the type, quality and timeliness of such services, subject to variation in the provision of such Services that may be inherent in the plan of Services requested by NETGEAR hereunder (including without limitation, where a service related to any Service to be provided hereunder is provided by NETGEAR for itself or by a third party, or differences in quality and timeliness, if any, that may be caused by a Firewall (as defined herein.) Other than the foregoing, Nortel Networks makes no representations or warranties hereunder with respect to any Service, including without limitation any warranty of noninfringement. 1.6.2 AVAILABILITY OF SERVICES If Nortel Networks shall cease to provide a particular Service for itself, Nortel Networks may cease to provide such similar Service(s) to NETGEAR, effective as of the later of (i) the time that Nortel Networks ceases to provide such Service for itself, or (ii) following thirty (30) days' notice to NETGEAR. NETGEAR acknowledges that the demand for Services may exceed Nortel Networks' available capacity to provide such Services, making it necessary for Nortel 3 4 Networks to prioritize requests for Services or take other steps to manage efficiently the provision of such Services. The management of the Services shall be left to the reasonable judgment of Nortel Networks, provided, however, that, in prioritizing requests for services, Nortel Networks shall, in the ordinary course, consider the needs of NETGEAR to be no less important than its own needs or the needs of its Affiliates. 1.6.3 POLICIES OR PROCEDURES The Services will be provided by Nortel Networks in accordance with Nortel Networks' policies and procedures. NETGEAR agrees to abide by such policies and procedures, which may change from time to time. Nortel Networks reserves the right to make corresponding changes to the Services provided hereunder. Any such change shall be evidenced as soon as practicable by an amendment to Schedule 1.1 pursuant to Section 9.11 (Amendments) hereof, to the extent an amendment is deemed necessary by Nortel Networks or NETGEAR. When changes permitted under this Section 1.6.3 are made to the Services, such Services, as changed, shall immediately be subject to the provisions of this Agreement and deemed to be "Services" for all purposes hereunder, whether or not such changes are ever evidenced by an amendment to this Agreement and/or its Schedules. 1.6.4 NEW AGREEMENTS; AMENDMENTS TO EXISTING AGREEMENTS NORTEL Networks' obligation to provide Services under this Agreement shall not be deemed to require Nortel Networks to enter into any new agreements or amendments to existing agreements (including without limitation supply, leasing or licensing agreements), or make any additional purchases, solely to provide Services to NETGEAR. However, if Nortel Networks or a Nortel Networks Affiliate elects to enter into any such new agreement or an amendment to an existing agreement specifically to provide Services to NETGEAR, the costs of such agreement or amendment that are allocable to the provision of Services to NETGEAR will be charged to NETGEAR. 1.6.5 TECHNOLOGY AND IMPROVEMENTS (i) Nortel Networks Technology. Except as may be provided in the Intellectual Property License Agreement between Nortel Networks and NETGEAR dated as of March _, 2000, any Nortel Networks processes, techniques, hardware, software, copyrights, patents, practices or other technical or proprietary matter related to, arising from, or used in connection with, the performance of the Services ("Technology"), and any improvement, modification or new development in the Technology ("Improvement"), shall be the sole and exclusive property of Nortel 4 5 Networks. To the extent necessary to give effect to the foregoing, upon Nortel Networks' request, NETGEAR shall promptly, and cause its employees, agents and contractors to promptly: (a) disclose all information and provide copies of all documents relating to such Improvement to Nortel Networks; (b) assign all right, title and interest in any such Improvement to Nortel Networks; and (c) execute such documents and do such other acts as Nortel Networks may reasonably request. (ii) Third Party Technology. NETGEAR acknowledges that the provision of Services may require that NETGEAR have access to software licensed by Nortel Networks or a Nortel Networks Affiliate from a third party. Accordingly, Nortel Networks, to the extent of its legal right so to do, if any, hereby grants to NETGEAR a sublicense under rights Nortel Networks or a Nortel Networks Affiliate may have, if any, in such third party software, but only to the extent necessary to effect the provision of Services hereunder. Nothing herein shall require Nortel Networks or a Nortel Networks Affiliate to acquire additional rights to sublicense such rights from any third party. NETGEAR shall indemnify and hold harmless Nortel Networks and its Affiliates from any and all claims and liabilities (including legal fees and expenses) arising out of NETGEAR'S use of such third party software. 1.7 INSURANCE Services related to insurance shall be provided for the types of insurance specified on Schedule 1.7, but only so long as Nortel Networks continues to own in excess of fifty percent (50%) of the equity of NETGEAR on a fully-diluted basis. After such time, NETGEAR shall be responsible for obtaining its own insurance. This Section 1.7 constitutes notice to NETGEAR from Nortel Networks with respect to these matters, and NETGEAR shall mark its records accordingly and be responsible for obtaining replacement insurance policies at the proper time. SECTION 2 TERM OF AGREEMENT; DEFAULT; TERMINATION 2.1 TERM AND TERMINATION The term ("Term") of this Agreement shall commence on the date hereof and continue until termination. The Agreement shall terminate upon the earliest to occur of the following: (a) mutual agreement of the parties; (b) six months from the Effective Date; (c) the occurrence and continuation of a Default by one party, and the delivery by the non-defaulting party to the defaulting party of a written demand for termination; (d) Nortel Networks' termination of this Agreement pursuant to Section 2.2 hereof; (e) NETGEAR'S written notification of its desire for 5 6 termination of all of the Services, pursuant to the provisions of Section 1.1 hereof; or (f) the cancellation or termination of all of the Services as provided in Section 5.2 (Remedies); 2.2 TERMINATION BY NORTEL NETWORKS In addition to the grounds for termination set forth in Section 2.1 (Term and Termination) hereof, this Agreement may be terminated by Nortel Networks in its sole discretion in the event of (i) the sale of all or substantially all of the assets or capital stock of NETGEAR to any of the entities set forth on Schedule 2.2, (ii) a merger with any of the entities set forth on Schedule 2.2 in which NETGEAR is not the surviving corporation, or (iii) an assignment by NETGEAR, without the prior written consent of Nortel Networks, of NETGEAR'S rights under this Agreement to an affiliate or subsidiary in which any of the entities set forth on Schedule 2.2 is, directly or indirectly, a 5% or greater shareholder. NETGEAR shall promptly notify Nortel Networks of any such sale, merger or intended assignment, and if Nortel Networks elects to terminate this Agreement, it shall so notify NETGEAR and such termination shall be effective upon NETGEAR'S receipt of such notice. 2.3 EFFECT OF TERMINATION Upon termination of this Agreement by either Party: (a) NETGEAR shall pay all undisputed amounts or charges owed to Nortel Networks as provided in this Agreement, provided that NETGEAR shall have the right to set-off any amounts or charges owed to Nortel Networks against any amounts owing to NETGEAR by Nortel Networks pursuant to this Agreement. In the event that the aggregate amount owing by Nortel Networks to NETGEAR is less than the aggregate amount owing by NETGEAR to Nortel Networks, NETGEAR shall pay the net amount in full within forty-five (45) days of termination. (b) Nortel Networks shall complete all partially completed Services and shall then cease to provide Services hereunder. Provided NETGEAR has made all payments required pursuant to paragraph (a) above, Nortel Networks shall deliver to the locations designated by NETGEAR within three (3) weeks of the date of termination, all deliverables, if any, with respect to such Services, in exchange for payment by NETGEAR of all amounts due with respect to such Services. (c) NETGEAR shall return all Nortel Networks Confidential Information (as defined in Section 7.1 (Confidential Information), and property furnished by Nortel Networks to NETGEAR hereunder to the locations designated by Nortel Networks, and under Nortel Networks' supervision, destroy or erase all copies of such Nortel Networks Confidential Information in the possession of NETGEAR or any Affiliate thereof or any of their respective employees, consultants, agents, representatives, contractors or subcontractors, including copies on paper or other hard copy and copies on computer or other storage media. 6 7 2.4 DEFAULT (a) Either party shall be deemed to be in default (such defaults, together with the defaults described in Section 2.4(b), each a "Default") hereunder upon the occurrence of any one or more of the following events with respect to it: (i) Failure to perform or fulfill any obligation or condition of this Agreement to be performed or fulfilled by such party, if such failure continues for thirty (30) days (or such longer period of time as is agreed by the parties to be reasonably necessary to allow such party to so perform or observe such obligation) after written notice thereof is given by the other party; or (ii) The making of any general assignment or arrangement for the benefit of creditors, the filing of a voluntary or involuntary petition in bankruptcy by or against such party under any bankruptcy or insolvency law or similar proceeding, the appointment of a trustee or receiver or the commencement of a similar proceeding to take possession of, or the attachment or other judicial seizure of, substantially all of such party's assets, or the taking by such party of any action in furtherance of the foregoing. (b) NETGEAR shall be deemed to be in default hereunder if it fails to make any payment when due hereunder, if such failure continues for thirty (30) days after such payment was due, unless such payment is being actively contested in good faith by NETGEAR. 2.5 SURVIVAL Notwithstanding any termination of this Agreement, (i) the terms of Sections 1.6.5 (Technology & Improvements), Section 4 (Fees, Expenses and Invoices), Section 5 (Exculpation and Indemnity), Section 9.2 (Governing Law) and Section 7.4 (Irreparable Harm; Remedies) and this Section 2.5 shall survive any such termination; and (ii) any outstanding payment obligations of NETGEAR to Nortel Networks, and all provisions of this Agreement relating to payment of amounts due, shall survive any such termination, until all such sums are paid in full. SECTION 3 RECORDS Nortel Networks shall keep and maintain books and records related directly to the performance of the Services, at a summary level, consistent with its customary accounting and business practices. Upon NETGEAR'S written request and at NETGEAR'S expense, Nortel Networks shall keep and maintain books and records at a greater level of detail. At NETGEAR'S request, Nortel Networks shall provide NETGEAR with access to such records for the purpose of copying and/or auditing them, during normal business hours at Nortel Networks' offices. Upon termination of this Agreement and payment of all amounts due hereunder, Nortel 7 8 Networks shall, at NETGEAR'S request, transfer to NETGEAR historical data of NETGEAR relating to the Services, so long as NETGEAR has paid all amounts due hereunder. SECTION 4 FEES, EXPENSES AND INVOICES 4.1 FEES In consideration for its performance of the Services, NETGEAR shall pay to Nortel Networks (or, if applicable and so requested by Nortel Networks, the Nortel Networks Affiliate or third party that performed the Service), the fees set forth in Schedule 1.1. 4.2 EXPENSES Except for those expenses which are otherwise covered by the fees set forth in Schedule 1.1, NETGEAR shall reimburse Nortel Networks (or, if applicable and so requested by Nortel Networks, the Nortel Networks Affiliate or third party that paid such expense) for (i) reasonable out-of-pocket expenses incurred by and paid by such Service provider, including but not limited to travel and lodging expenses incurred pursuant to NETGEAR'S request, (ii) amounts expended with respect to claims and litigation pertaining to the Services (including settlement costs and reasonable expenses associated therewith, such as attorneys' fees and expenses and court costs), (iii) the expenses attributable to constructing, on behalf of Nortel Networks and/or NETGEAR, a Firewall pursuant to Section 7.3 hereof, and (iv) any other fees or expenses that NETGEAR has agreed to pay pursuant to this Agreement. 4.3 INVOICES Nortel Networks shall submit or cause to be submitted to NETGEAR invoices for the fees and expenses due pursuant to this Agreement approximately thirty (30) days after such fees and expenses have been incurred. Each invoice shall: (i) identify the applicable Services to which the invoice relates, (ii) provide summary details of the fees payable for each such Service and (iii) specify the total amount payable, to whom such amounts are payable, and certain taxes as specified in Section 4.5. All invoices for amounts payable hereunder shall be due and payable thirty (30) days from the date of the applicable invoice. 4.4 DISPUTED INVOICES In the event that NETGEAR disputes the amount of any invoice or portion thereof, NETGEAR shall pay the undisputed portion of such invoice and shall send to Nortel Networks along with such payment a written notice of such dispute. Within ten (10) business days of Nortel Networks' receipt of such notice, and for a period of ten (10) business days (or such longer period as shall be agreeable to the parties), Norte] Networks shall make available to NETGEAR or its designee, during normal business hours at a location designated by Nortel Networks, all documentation in the possession of Nortel Networks or a Nortel Networks Affiliate reasonably necessary to enable NETGEAR to review the invoice, the data on which it was based and the methods by which amounts due were computed or determined. If, upon completion of such review, Nortel Networks and NETGEAR are not in agreement as to the amount of the 8 9 invoice, the dispute shall be referred to a nationally-recognized firm of certified public accountants agreed to by the parties, for a final binding decision as to the correct amount. Such amount shall be paid by NETGEAR to Norte] Networks within five (5) business days of notification to NETGEAR of such amount. 4.5 TAXES The fees for the Services set forth in Schedule 1.1 hereof are exclusive of taxes. NETGEAR shall withhold the amount of any tax required to be withheld from payments made to any provider of Services pursuant to this Agreement. To assist in obtaining any tax credits for the amounts withheld from payments made by NETGEAR hereunder, NETGEAR shall promptly furnish to such service provider such evidence as may be required by the applicable taxing authorities to establish that any such tax has been paid. NETGEAR shall pay to any provider of Services hereunder the amount of any applicable sales, use or service tax, value-added taxes, goods and services taxes or any other similar taxes that such service provider may be required to collect because of its performance under or in connection with this Agreement (except for any franchise tax, withholding tax (as described above or any tax imposed on such service provider's net income). Nortel Networks shall identify any such tax as a separate line item on each invoice (unless taxes are required under the law of the relevant jurisdiction to be included in the price). SECTION 5 EXCULPATION; INDEMNIFICATION; REMEDIES 5.1 Except as set forth in Section 1.6.1 (Manner of Performance), NETGEAR acknowledges that Nortel Networks has made, and makes, no representations or warranties of any nature, directly or indirectly, express or implied, regarding the Services. Without limiting the generality of the foregoing, there are no warranties of merchantability or fitness for a particular purpose, express or implied, given by Nortel Networks, and no warranties with respect to software owned or licensed by Nortel Networks. NETGEAR specifically waives all rights to make any claim against Nortel Networks for breach of any other warranty of any kind whatsoever in connection with the Services. NETGEAR AGREES THAT NORTEL NETWORKS SHALL NOT BE LIABLE TO NETGEAR FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF REVENUE, LOSS OF CUSTOMERS OR CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS, DAMAGE TO OR LOSS OF USE OF ANY PROPERTY, ANY INTERRUPTION OR LOSS OF SERVICE, OR ANY LOSS OF BUSINESS, HOWSOEVER CAUSED, OR ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER. 9 10 5.2 NETGEAR'S Remedies Regardless of the nature of any claim or the form of any action that may be brought against Nortel Networks by NETGEAR as a result of or arising out of actions, errors or omissions of Nortel Networks in failing to provide the Services in the manner described in Section 1.6.1 (Manner of Performance) ("Defective Service"), NETGEAR'S sole remedy in such instance shall be (i) to demand that Nortel Networks provide the Service in the manner described in Section 1.6.1, whereupon Nortel Networks shall in good faith attempt to provide the Services in such manner, or, (ii) if such Service cannot, for any reason except force majeure as described in Section 9.10 hereof, be provided in such manner, Nortel Networks' reimbursement to NETGEAR for any payment made by NETGEAR for Defective Service, or, if such Defective Service has not yet been paid for by NETGEAR, the cancellation of any obligation of NETGEAR to pay the fees for such Defective Service and any expenses related thereto (at which time, the obligation of Nortel Networks to provide such Service shall be cancelled). If any Service is unsatisfactory to NETGEAR, though provided by Norte] Networks in the manner described in Section 1.6.1, NETGEAR'S sole remedy shall be termination of such Service after payment of all amounts due hereunder. Except as set forth in this Section 5.2, Nortel Networks shall have no other liability whatsoever with respect to the performance of the Services hereunder or otherwise in connection with this Agreement. 5.3 THIRD PARTY INDEMNITY This Agreement is for the sole and exclusive benefit of the parties, and it shall not be deemed to be for the direct or indirect benefit of any other person or entity, including without limitation either party's customers, suppliers or employees. NETGEAR shall indemnify and hold harmless Nortel Networks, and its Affiliates and each of their respective officers, directors, employees, managers, partners and agents, against and from any liability, loss, damage, cost and expense (including attorneys' fees and costs of litigation) (collectively, "Losses") arising out of or in connection with any claim or action that any person or entity (other than NETGEAR) may make or file against Nortel Networks or its officers, directors, employees, managers, partners or agents in connection with this Agreement or the Services, regardless of the standard of negligence or culpability alleged, SECTION 6 INDEPENDENT CONTRACTOR In performing the Services hereunder, Nortel Networks shall operate as and have the status of an independent contractor, subject only to the general direction of NETGEAR regarding the Services to be rendered, as opposed to the method of performance of such Services. No party's employees shall be considered employees or agents of the other party, nor shall the employees of any party be eligible or entitled to any benefits, perquisites or privileges given or extended to any of the other party's employees. Nothing contained in this Agreement shall be deemed or construed to create a joint venture or partnership between the parties. No party shall have any power to control the activities and/or operations of the other party. No party shall have any power or authority to bind or commit any other party. NETGEAR shall indemnify and hold Nortel Networks or any Nortel Networks Affiliate free and harmless from all losses, damages, 10 11 liabilities and costs (including, without limitation, legal fees and disbursements) and amounts agreed upon in settlement or awarded in connection with any claim, suit or proceeding relating to the foregoing. SECTION 7 CONFIDENTIALITY AND ACCESS 7.1 CONFIDENTIAL INFORMATION NETGEAR acknowledges that the procedures, operations, processes, computer programs and facilities used by Nortel Networks or its Affiliates in performing the Services are proprietary to Nortel Networks (and/or its Affiliates and/or third party suppliers), have been established and maintained at great expense, are protected as confidential information and trade secrets, are of great value to Nortel Networks and provide Nortel Networks with a substantial competitive advantage in its business. Any information of either party to this Agreement provided to or accessible by the other party in connection herewith, regardless of form, including, but not limited to all data, processes, technical drawings, designs and concepts; software programs, routines, formulae and concepts, production plans, designs, layouts and schedules; marketing analyses, plans, customer data and surveys; all matters relating to either party's finances and personnel and any other information ("Confidential Information") shall be received and held in strict confidence, used only for purposes related to this Agreement and shall not otherwise be disclosed by the other party, its agents, employees, contractors or subcontractors, without the prior written consent of the other party. "Confidential Information" as defined herein does not include any information (i) lawfully received from another source free of restriction and without breach of this Agreement, (ii) that becomes generally available to the public without breach of this Agreement, (iii) known to the receiving party at the time of disclosure free from any confidentiality obligations, or (iv) independently developed by the receiving party without resort to such confidential or proprietary information. All Confidential Information in tangible form shall be returned to the disclosing party upon its request. Upon either party's written request, the other party shall cause each of its agents, employees, contractors or subcontractors who will have access to the Confidential Information to sign a written agreement setting forth his or her individual confidentiality obligations, substantially in the form of Exhibit B, which Exhibit B is attached hereto and incorporated herein by reference. All Confidential Information shall be owned and remain the sole and exclusive property of the disclosing party, and all rights to Confidential Information shall be held in trust by the other party. Each party shall take reasonable precautions to prevent the unauthorized disclosure to outside parties of such information, except as may be necessary by reason of legal or regulatory requirements beyond the reasonable control of the recipient party. 7.2 ACCESS NETGEAR agrees that it shall, without charge, provide Nortel Networks (or any Nortel Networks Affiliate or third party service provider) with such access to NETGEAR'S premises and/or personnel, and such assistance as may reasonably be required for Nortel Networks to perform its obligations under this Agreement. If NETGEAR has access (either on-site or remotely) to any of Nortel Networks' computer systems in relation to the Services, NETGEAR 11 12 shall limit such access solely to the use of such systems for purposes of the Services and shall not access or attempt to access any of Nortel Networks' computer systems, files, software or services other than those required for the Services, or those that are publicly available (e.g. public websites). NETGEAR shall limit such access to those of its employees, agents or contractors with a bona fide need to have such access in connection with the Services, and shall follow all of Nortel Networks' security rules and procedures for restricting access to its computer systems. All user identification numbers and passwords disclosed to NETGEAR and any information obtained by NETGEAR as a result of NETGEAR'S access to and use of Nortel Networks' computer systems shall be deemed to be, and treated as, Nortel Networks' confidential information hereunder. Nortel Networks and NETGEAR shall cooperate in the investigation of any apparent unauthorized access to any Nortel Networks computer system. These provisions concerning computer access shall apply equally to any access and use by NETGEAR of Nortel Networks' electronic mail system, Nortel Networks' electronic switched network, either directly or via a direct inward service access (DISA) feature, or any other property, equipment or service of Nortel Networks, and any third party software not proprietary to Nortel Networks but that may be accessible by NETGEAR in connection with this Agreement. 7.3 FIREWALL PROTECTION Notwithstanding anything to the contrary in Section 7.2 (Access) hereof, prior to Nortel Networks' performance of certain Services, action must be taken to insulate one party's and/or its Affiliates' operations, assets, proprietary information, software or data from that of the other party and/or its Affiliates (such insulation being referred to hereinafter as a "Firewall"). Nortel Networks shall give notice to NETGEAR indicating what aspects of each party's business need to be isolated, the nature of the activities necessary to accomplish such isolation and the expected time and cost involved. Unless NETGEAR advises Nortel Networks in writing, within seven (7) business days from its receipt of Nortel Networks' notice, that NETGEAR no longer desires the Service that gave rise to the need for a Firewall, Nortel Networks shall have the right to undertake the work involved to construct a Firewall, at NETGEAR'S expense. 7.4 IRREPARABLE HARM: REMEDIES Each party acknowledges and agrees that any violation or threatened violation by such party of any of the terms set forth in Section 1.6.5(i) (Nortel Networks Technology) and Section 7 hereof would cause irreparable injury to the other party, that the remedies at law for any violation or threatened violation thereof would be inadequate, and that such other party will, in addition to and not in limitation of any rights or remedies available at law or in equity, be entitled to temporary and permanent injunctive relief and specific performance without the necessity of proving actual damages. 12 13 SECTION 8 REAL ESTATE LICENSE 8.1 GRANT OF LICENSE Nortel Networks, as the owner or lessor of real property at various locations more specifically described in Schedule 8.1 attached hereto (collectively referred to as "Premises" and individually as "Premises" with a corresponding identification number as set forth in Schedule 8.1), hereby grants to the NETGEAR a license (the "Real Property License(s)") to use certain portions of each Premises (each, a "Licensed Area") for the purpose of conducting NETGEAR'S business pursuant to this Agreement, for the Term and the facility fees set forth on Schedule 1.1. During the Term, NETGEAR'S employees, contractors and agents shall have twenty-four hour access to each respective Licensed Area (through the Premises and such other access ways as are made available to Nortel Networks) and such other parts of the Premises as the parties may agree in writing. NETGEAR shall use and occupy the Licensed Areas pursuant to the reasonable rules and regulations established by Nortel Networks for each related Premises, and, if Nortel Networks is a lessee of such Premises, only as permitted under the related lease. Nortel Networks retains the right to relocate NETGEAR, at Norte] Networks' expense, to any space in a given Premises at any time, so long as such space contains at least the same number of square feet as the original Licensed Area. NETGEAR may not assign any Real Property License or further license all or any part of any Licensed Area. 8.2 FACILITY-RELATED SERVICES So long as the NETGEAR is occupying any Licensed Area pursuant to this Section 8, NETGEAR shall receive or be entitled to use certain facility-related services that are available at the related Premises to Nortel Networks' other contractors or venders occupying such Premises, but excluding any health or exercise-related facilities. Nortel Networks shall have no obligation to provide any services not provided to its other contractors or vendors occupying the Premises. 8.3 TERMINATION OF REAL PROPERTY LICENSE Notwithstanding anything in Section 2.1, or in any Schedule and Exhibit attached hereto or elsewhere in this Agreement, Nortel Networks may terminate any or all Real Property Licenses at any time (a) if Nortel Networks is a lessee of such Premises and the related lease expires or is otherwise terminated, or (b) if Nortel Networks has provided the NETGEAR with written notice that NETGEAR has violated the rules and regulations established by Nortel Networks or any third party lessor for any Premises or if the NETGEAR is otherwise in violation of a related lease, and such breach or violation is not cured within ten (10) Business Days of NETGEAR'S receipt of such notice; or (c) upon thirty (30) days written notice by Nortel Networks to the NETGEAR. 8.4 CONDITION OF LICENSED AREAS; ALTERATIONS AND IMPROVEMENTS The NETGEAR hereby accepts each Premises and Licensed Area in an "as is" condition. Nortel Networks shall have no obligation to make any alteration or improvement to any Licensed 13 14 Area for NETGEAR'S use or occupancy thereof. The NETGEAR shall not make any alterations or additions to any Premises or Licensed Area without the written consent of Nortel Networks. 8.5 FIXTURES AND EQUIPMENT The NETGEAR shall have the right to furnish each Licensed Area with such furniture, equipment and other assets ("Furnishings") as it sees fit, except that NETGEAR shall not install any trade fixtures without Nortel Networks' prior written consent, and Nortel Networks shall have no obligation to install any trade fixtures for or on behalf of NETGEAR. All Furnishings to be brought onto the Licensed Areas by NETGEAR are set forth on Schedule 8.5 hereto. All Furnishings shall remain at all times the property of NETGEAR, except that any Furnishings remaining in any Licensed Area after the surrender thereof by NETGEAR, shall be deemed abandoned and shall become the property of Nortel Networks without payment therefor. 8.6 HOLDING OVER NETGEAR shall have no right to occupy any Licensed Area after the end of the respective License Term. If NETGEAR remains in possession of any Licensed Area after any License Term, NETGEAR shall be responsible for all damages and costs incurred by Nortel Networks as a result of such unauthorized occupancy. In addition, NETGEAR shall pay to Nortel Networks a holdover fee in an amount equal to 150% of the License Fee during the period of its unauthorized occupancy. Nothing in the preceding sentence shall be construed to grant NETGEAR any right to occupy any Licensed Area after its respective License Term. SECTION 9 MISCELLANEOUS 9.1 NOTICE Notices and all other communication provided for herein shall be in writing and shall be deemed to have been given to a party at the earlier of (i) when personally delivered or (ii) 72 hours after having been deposited into the custody of the local postal service, sent by first class certified mail, postage prepaid, or (iii) one day after deposit with a national overnight courier service, or (iv) upon receipt of a confirmation of facsimile transmission; in each case addressed as follows: If to NETGEAR: NETGEAR, Inc. 4401 Great America Parkway MS: SCI-06 Santa Clara, CA 95052 Attention: Patrick Lo If to Nortel Networks: Nortel Networks NA Inc. 4401 Great America Parkway MS: SC2-05 Attention: Law Department 14 15 or to such other address as any party hereto may have furnished to the other party hereto in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. 9.2 GOVERNING LAW This Agreement shall be subject to and governed by the laws of the State of California, without regard to its conflicts of law principles. 9.3 BINDING EFFECT This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, subject to the limitations on assignment in Section 9.9 (Assignability) hereof. 9.4 COUNTERPARTS This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. 9.5 ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties and contains all of the agreements between the parties with respect to the subject matter hereof. All Schedules attached hereto are incorporated herein by reference. This Agreement supersedes any and all other agreements, either oral or written, between the parties hereto with respect to the subject matter hereof. No amendment or modification of this Agreement shall be valid unless the same shall be in writing and signed by the parties hereto. 9.6 WAIVERS No waiver of any provision of this Agreement shall be implied, and no waiver shall be valid unless it is in writing and signed by the person or party to be charged. No waiver of any breach of any of the terms, provisions or conditions of this Agreement shall be construed as or held to be a waiver of any other breach, or a waiver of, acquiescence in, or consent to, any further or succeeding breach hereof. 9.7 SEVERABILITY If any portion or portions of this Agreement shall be, for any reason, invalid or unenforceable, the remaining portion or portions shall nevertheless be valid, enforceable and carried into effect, unless to do so would clearly violate the present legal and valid intention of the parties hereto. 15 16 9.8 HEADINGS The headings in this Agreement are inserted for convenience only and are not to be considered in the interpretation or construction of the provisions hereof. 9.9 ASSIGNABILITY This Agreement may not be transferred by NETGEAR, by assignment, merger or otherwise, without the prior written consent of Nortel Networks, and any such purported transfer shall be void. Notwithstanding the foregoing, either party may, upon written notice to the other party, transfer its rights under this Agreement to any Affiliate, in which case such party shall remain jointly or severally liable with any such Affiliate for the fulfillment of all the terms and conditions hereof. Neither party shall transfer its rights or obligations under this Agreement to any Affiliate unless and until any and all required government approvals respecting such transfer have been received by Nortel Networks and NETGEAR. 9.10 FORCE MAJEURE Nortel Networks shall be excused for failure to provide any Service to the extent that such failure is directly or indirectly caused by acts of God, national emergency, labor dispute, software, equipment or electrical malfunction, transportation delays, telecommunication failures, or any other event or circumstance beyond the reasonable control of Nortel Networks, but only until the cessation of such event or circumstance. In the event that Nortel Networks' performance hereunder is affected by such an event or circumstance, Nortel Networks shall promptly notify NETGEAR of same, giving reasonably full particulars thereof and, insofar as known, the probable extent to which it will be unable to perform, or will be delayed in performing, its obligations hereunder, and Nortel Networks shall use reasonable efforts to remove such force majeure. 9.11 AMENDMENT No modification or amendment of this Agreement will be binding upon either Party unless in a writing expressly referencing this Agreement and duly executed by each Party. 16 17 IN WITNESS WHEREOF, the parties have executed this Transition Services Agreement as of the date first above written. NETGEAR, INC. By: /s/ PATRICK LO ------------------------------------- Name: PATRICK LO Title: CEO NORTEL NETWORKS NA INC. By. /s/ RICK TALLMAN ------------------------------------- Name: RICK TALLMAN Title: Assistant Secretary 17 18 SCHEDULE 1.1 SERVICES TO BE PROVIDED AND FEES DESCRIPTION OF SERVICES PART I -- Services Subject to Customary Billing. The billing methodology shall be based on Nortel Networks' internal apportionment formulas. - - Finance services customarily provided to like business units of Nortel Networks. - - Accounting services customarily provided to like business units of Nortel Networks (e.g., accounts receivable, accounts payable, general ledger, fixed assets and related services). - - Information system services - - Global telecommunications and network services PART II -- Services Subject to Pass Through Billing. The billing methodology shall be based on the actual cost of Nortel Networks' occupancy of a given facility including lease charges, utilities charges, real and personal property taxes relating to the premises as described and detailed in Schedule 8.1. 19 SCHEDULE 1.7 INSURANCE 20 SCHEDULE 2.2 - Cisco Systems, Inc. - Lucent Technologies, Inc. - 3Com. - Siemens. - Newbridge. - Cabletron. - Ericsson. - Nokia. - Motorola. 21 SCHEDULE 8.1 REAL ESTATE [This schedule should include places with few employees, to be licensed for a term of less than 6 months.]
- ------------------------------------------------------------------------------------------------------------------------------------ LICENSED AREA APPX NO. OF NORTEL ENTITY NETGEAR ENTITY DESCRIPTION LEASED OR OWNED NN BUSINESS LICENSE LICENSE PREMISES NAME NAME (APPROX. S/F) BY NORTEL? EE'S THERE TERM FEE - ------------------------------------------------------------------------------------------------------------------------------------ 1. CALIFORNIA Nortel Networks SANTA CLARA NA Inc. 10,992 Leased 22 3 Months $108,491.00 4401 Great American Pky. - ------------------------------------------------------------------------------------------------------------------------------------ 2. AUSTRALIA Nortel Networks SIDNEY Australia Tech- 362 ? 2 3 Months $6,690.00 Level 5, 118 Walker Street nology Limited - ------------------------------------------------------------------------------------------------------------------------------------ 3. FRANCE Nortel Networks LES ULIS CEDEX France S.A. 300 Leased 1 3 Months $3,332.00 21 Ave. Due Quebec - ------------------------------------------------------------------------------------------------------------------------------------ 4. GERMANY Nortel Networks MUNICH Deutschland GmbH 396.8 Leased 2 3 Months $3,207.00 Wamslerstrasse 9 - ------------------------------------------------------------------------------------------------------------------------------------ 5. JAPAN Nortel Networks TOKYO Japan 654.6 Leased 3 3 Months $25,066.00 Gate City Ohsaki, East Tower, 9th Floor 1-11-2 Ohsaki, Shinagawa-ku, Tokyo 141-8411 Japan - ------------------------------------------------------------------------------------------------------------------------------------ 6. KOREA Nortel Networks SEOUL Korea Technology 403 Leased 1 3 Months $4,139.00 16F, Haesung Bldg 2 Limited 942-10, Daechi-3-dong - ------------------------------------------------------------------------------------------------------------------------------------ 7. SWEDEN Nortel Networks STOCKHOLM Nordic AB 430.6 Leased 1 3 Months $3,387.00 Eriksgatan 115A P.O. Box 6701 - ------------------------------------------------------------------------------------------------------------------------------------ 8. UNITED KINGDOM Nortel Networks MAIDENHEAD Properties Limited 300 ? 1 3 Months $4,625.00 9300 Trans Canada Hwy - ------------------------------------------------------------------------------------------------------------------------------------
22 SCHEDULE 8.5 NETGEAR FURNISHINGS
DEPT ASSET # NT ASSET # DESCRIPTION 1 SERIAL # DESCRIPTION 2 LEASE/PURCH CAP/EXP - ---- ------- ---------- ------------- -------- ------------- ----------- ------- Smart Bit 2000 8373 Test Equipment Purchased Smart Bit 2000 8364 Test Equipment Purchased Smart Bit 1000 3239 Test Equipment Purchased Pentium PC ND508/520 Test Station 486PC ZyXel Test Station Pentium 100MHz PC FA410 Test Station Pentium PC FA510 Test Station Pentium PC FA510 Test Station Pentium PC PS Series Test Station Pentium PC EA101 Test Station Pentium PC EA101 Test Station Pentium PC FA310 Test Station 181 HP LaserJet 5Si MX - C3167A USJK209705 Printer Purchased 181 HP LaserJet 5Si MX - C3167A USJK210598 Printer Purchased HP LaserJet 5Si MX - C3167A Printer Purchased 507 1039178 NEC 6230 7Z001220 Laptop registar 507 1036924 BOXLIGHT 4000 ULTRA LIGHT DLP ###-###-#### Projector Purchased registar 507 1037029 NEC 6230MX 81072112 Laptop Purchased registar 507 1036449 WINBOOK XL P233 RBL256R54227S42 Laptop Purchased registar 507 1030735 MAC POWERBOOK 3400C/200 Laptop Purchased registar 507 1037180 WINBOOK XL P233 RBL256R3507L07 Laptop Purchased registar 507 1042318 WinBook XL P266 RCN456W1138507 Laptop Purchased registar 507 1045570 IBM THINKPAD 600E 78-BXY04 Laptop Purchased registar 507 1036220 WINBOOK XL P233 LAPTOP SB1256R1457107 Laptop Purchased registar 507 Dell Latitude Cpi336 ###-###-#### Laptop 507 Dell 19" Monitor 2221DA67VE89 Monitor 507 expensed HP 600 Office Jet Printer Purchased exp 507 1038329 WinBook XL RCM256R4068Z40 Laptop Purchased registar 507 Dell Latitude Cpi336 ###-###-#### Laptop 507 Dell 19" Monitor Monitor 507 expensed HP 600 Office Jet Printer Purchased expensed 507 1041487 Toshiba 320CT ###-###-#### Laptop Purchased 507 expensed HP 600 Office Jet Printer Purchased expensed 507 1046181 Toshiba Portege 7010CT 19361415A Laptop Purchased 507 HP 570 Office Jet Printer Purchased expensed 507 WinBook XL 266 RBL256R3517L18 Laptop Purchased 507 expensed HP 590 Office Jet Printer Purchased expensed
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DEPT ASSET# NT ASSET # DESCRIPTION 1 SERIAL # DESCRIPTION 2 LEASE/PURCH CAP/EXP - ---- ------ ---------- ------------- -------- ------------- ----------- ------- 52M 1049320 SONY PGC 505TR Laptop Purchased registar 52M 1048391 IBM THINKPAD 600E 78WKL07 Laptop Purchased registar 507 00089 1048321 DELL LATITUDE 366 WP8Q8 Laptop Purchased registar 181 1031784 TOSHIBA 800CT Laptop Purchased registar 181 00084 1032037 NEC 6050 77001286 Laptop Purchased registar 181 1046902 NEC VERSA SX + doc + mon + 93120359 Laptop Purchased registar key + ms 181 00085 1047732 DELL LATITUDE 300 WF18Q Laptop Purchased registar 181 00082 1039505 TOSHIBA 750CDM 48653258A Laptop Purchased registar 181 1040578 HIQ PENTIUM II 233 MHZ PC Tower Purchased registar 181 1041013 SUN ULTRA 10 Purchased registar 181 1047085 DELL LATITUDE WCD7C Laptop Purchased registar 300 + doc + mon + key + ms 181 1046530 IBM THINKPAD 560 Laptop Purchased registar 181 1037116 SUN ULTRA 2 809FC40D Purchased registar 181 1046075 NEC VERSA SX + doc + mon + 8Z120468 Laptop Purchased registar key + ms 181 00083 1049311 CANON LC9000 FAX UYG41256 FAX Purchased registar 181 NEC 6200 Laptop 341 expensed SONY NOTEBOOK PII Laptop Purchased expensed 341 1038319 MERGE 2000 AF FLASH Purchased registar 341 1048757 NETCOM GIGABIT ETHERNET SX SMA Purchased registar 341 00079 1047702 NETCOM SMARTBITS 2000 9844A Test Equipt Purchased registar 341 1038849 NETCOM SMARTBITS 2000 8364 Test Equipt Purchased registar 341 1044008 IBM THINKPAD 600 1S264551U78GY232 Laptop Purchased registar 341 1043874 NETCOM GIGABIT SMARTCARD Purchased registar 341 1046345 NETCOM SMARTCARDS Purchased registar 341 00046 1045290 ISO/LINK PENTIUM II SYSTEM 17582 Purchased registar 341 1044516 IBM THINKPAD 600 1S264551U78HC753 Laptop Purchased registar 341 1042601 NETCOM ETHERNET SMARTCARDS Purchased registar 341 1042137 IBM THINKPAD 600 1S264551U78AV521 Laptop Purchased registar 341 1041775 NETCOM SMARTBITS 2000 8373 Test Equipt Purchased registar 341 00086 1039409 NEC 5080 83042671 Laptop Purchased registar 341 00047 1042320 SHARP MEBIUS 80004865 Laptop Purchased registar 341 00048 1042319 SHARP MEBIUS 80001835 Laptop Purchased registar 341 00080 1022213 NETCOM SMARTBITS 10 5116 Purchased registar 341 1022211 NETCOM ET-1000 1577 Purchased registar 341 1021587 INTEL PENTIUM P90 PC Tower Purchased registar 341 1026574 ISDN NETWORK SIMULATOR Purchased registar 341 1024387 INTEL PENTIUM P166 Purchased registar 341 00049 1023461 TOSHIBA T2130CT 12530403 Laptop Purchased registar 341 1021579 INTEL PENTIUM P90 Purchased registar 341 1021577 INTEL PENTIUM P90 Purchased registar 341 1019767 COMPAQ PRESARIO CDS 9548 Purchased registar 341 1021585 INTEL PENTIUM P90 Purchased registar 341 1021583 INTEL PENTIUM P90 Purchased registar
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DEPT ASSET # NT ASSET # DESCRIPTION 1 SERIAL # DESCRIPTION 2 LEASE/PURCH CAP/EXP - ---- ------- ---------- ------------- -------- ------------- ----------- ------- 341 1021581 INTEL PENTIUM P90 Purchased registar 341 1033296 SUPERCOM NETBOX Purchased registar 341 00054 1036999 NEC 6230MX 81072120 Laptop Purchased registar 341 00045 1049043 GATEWAY INTEL 400MHZ E1200 14909816 Desktop Purchased registar 341 1049071 NETCOM SX SMARTCARD Purchased registar 341 1026673 COMPAQ ARMADA 4120T Laptop Purchased registar 341 1025117 ISDN NETWORK SIMULATOR Purchased registar 181 1007745 RICOH FAX 3100L Purchased registar 181 1009327 TEKTRONIX 2467B B053956 Purchased registar OSCILLOSCOPE 341 1048993 TEKTRONIX TDS 3054 Purchased registar OSCILLOSCOPE 341 1034282 NETCOM SMARTBITS 20 3236 Test Equipt Purchased registar 341 1032496 NETCOM SMARTBITS 20 3239 Test Equipt Purchased registar 341 1036192 ISDN 2000AFP FLASH Purchased registar 341 1029207 NETCOM 100BASE-X FAST Purchased registar SMARTCARD 341 1029393 LAN CABLE TESTER AND CABLE Purchased registar 341 1049526 TEKTRONIX PROBE P6246 Purchased registar 341 1029774 HP DIGITIZING OSCILLOSCOPE 3327A00467&495 Purchased registar 181 00001 SONY NOTEBOOK PII Laptop Purchased registar 341 00002 ML-7710 10/100 Base TX Multily Smartcard Purchased registar Smartcard 341 00003 ML-7710 10/100 Base TX Multily Smartcard Purchased registar Smartcard 341 00004 ML-7710 10/100 Base TX Multily Smartcard Purchased registar Smartcard 341 00005 ML-7710 10/100 Base TX Multily Smartcard Purchased registar Smartcard 341 00006 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00007 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00008 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00009 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00010 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00011 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00012 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00013 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00014 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00015 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00016 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00017 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00018 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00019 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00020 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar
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DEPT ASSET # NT ASSET # DESCRIPTION 1 SERIAL # DESCRIPTION 2 LEASE/PURCH CAP/EXP - ---- ------- ---------- ------------- -------- ------------- ----------- ------- Smartcard 341 00021 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00022 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00023 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00024 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00025 SX-7410B 10/100 Base TX Ethernet Smartcard Purchased registar Smartcard 341 00026 GX-1420A Gigabit Ethernet Copper Smartcard Purchased registar Smartcard 341 00027 GX-1420A Gigabit Ethernet Copper Smartcard Purchased registar Smartcard 341 00028 GX-1420A Gigabit Ethernet Copper Smartcard Purchased registar Smartcard 341 00029 GX-1420A Gigabit Ethernet Copper Smartcard Purchased registar Smartcard 507 00030 Compucare SYS Missouri IX PC Tower Purchased registar 507 00031 Compucare SYS Missouri IX PC Tower Purchased registar 507 00032 Compucare SYS Missouri IX PC Tower Purchased registar 341 00033 20 Chl Hybrid Recorder DR130- Purchased registar 12-22-1D/C2 507 00034 600 MHZ PIII System w/CD PC Tower Purchased registar 507 00035 600 MHZ PIII System w/DVD PC Tower Purchased registar 507 00036 600 MHZ PIII System w/DVD PC Tower Purchased registar 507 00037 500 MHZ PIII System w/CD PC Tower Purchased registar 507 00038 500 MHZ PIII System w/CD PC Tower Purchased registar 507 00039 400 MHZ Laptop Purchased registar 341 00040 Meridian Snap Server 32G w/Raid Purchased registar 52M 00041 Netis Technology Purchased registar 181 00042 Computer Market Research Software Purchased registar 52M 00043 Precision Consulting Software Purchased registar 52M 00044 TCN Software Purchased registar AU507 Toshiba Tecra 8000 ###-###-#### Laptop Purchased registar AU507 Toshiba Tecra 730XCDT ###-###-#### Laptop Purchased registar AU507 Nokia 6110 Mobile Phone Purchased exp AU507 Nokia 6110 Mobile Phone Purchased exp FF507 Model GH688 GSM Phone Purchased exp FF507 338310 Compaq Armada 3500 Laptop Purchased registar GE507 old Toshiba Portege 660CDT ###-###-#### Laptop Purchased GE507 old Toshiba DeskStation V+ 4717462 Docking Station Purchased GE507 old NET Monitor 17 7501490TA Monitor Purchased GE507 New Toshiba Tecra 8000CDT 998D024846 Laptop Purchased registar GE507 New Dell Latitude Xpi WK7HZ F0333-4 Laptop Purchased registar GE507 New Dell 17" Monitor Monitor Purchased registar
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- ------------------------------------------------------------------------------------------------------------------------------- DEPT ASSET # NT ASSET # DESCRIPTION 1 SERIAL # DESCRIPTION 2 LEASE/PURCH CAP/EXP - ------------------------------------------------------------------------------------------------------------------------------- GE507 Dell Doc Docking Station Purchased registar - ------------------------------------------------------------------------------------------------------------------------------- JP507 IBM ThinkPad560E 97-ATIBK Laptop - ------------------------------------------------------------------------------------------------------------------------------- JP507 Sony VAIO 505SX 28987600- Laptop Purchased registar 1110937 - ------------------------------------------------------------------------------------------------------------------------------- JP507 Nanao FlexScan 54T ###-###-####- Monitor Purchased registar JAPAN - ------------------------------------------------------------------------------------------------------------------------------- JP507 Sony VAIO 505SX 28987600- Laptop Purchased registar 1117992 - ------------------------------------------------------------------------------------------------------------------------------- JP507 Dell XPSR350 T03JS PC Purchased - ------------------------------------------------------------------------------------------------------------------------------- JP507 Nanao FlexScan 54T 55399097_JAW Monitor Purchased - ------------------------------------------------------------------------------------------------------------------------------- JP507 Dell GXA6233L/EM 19648625 PC - ------------------------------------------------------------------------------------------------------------------------------- JP507 ViewSonic VPA150 EK91010861 Monitor - ------------------------------------------------------------------------------------------------------------------------------- KO507 Dell Latitude Xpi S42XL PC Purchased registar - ------------------------------------------------------------------------------------------------------------------------------- SE507 IBM ThinkPad600 55206WP Laptop Purchased registar - ------------------------------------------------------------------------------------------------------------------------------- SE507 Philips 107MB HD009847001023 Monitor Purchased registar - ------------------------------------------------------------------------------------------------------------------------------- GB507 325789/00731 Compaq Notebook PC 8749BB730191 Laptop Purchased registar - ------------------------------------------------------------------------------------------------------------------------------- GB507 A039750 Compaq Docking Station 6747BCL10710 Docking Station Purchased registar - ------------------------------------------------------------------------------------------------------------------------------- GB507 00732 Philips 107B Color Monitor ###-###-#### Monitor Purchased registar - ------------------------------------------------------------------------------------------------------------------------------- GB507 Nokia 2110 Mobile Phone 490138 Mobile Phone Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 Tester #13 N/A PC Tower Built exp - ------------------------------------------------------------------------------------------------------------------------------- 341 Dual 400 server N/A PC Tower Built exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00053 Dell Dimension XPSH266 9KOSV PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00050 H1Q 233MHZ ###-###-#### PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00051 H1Q 150MHZ ###-###-#### PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00052 GLI 90MHZ 88112912 PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00055 H1Q 150MHZ ###-###-#### PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 Tester #9 N/A PC Tower Built exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00056 H1Q 150 MHZ ###-###-#### PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00057 H1Q 90MHZ ###-###-#### PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00058 H1Q 150MHZ ###-###-#### PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00059 H1Q 150MHZ ###-###-#### PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00060 H1Q 150MHZ ###-###-#### PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00061 T/Link 90MHZ MLP ###-###-#### PC Tower- mini Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00062 Power Spec PIII 7.2201E+12 PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00063 Pentium III P96A8400249 PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00064 GLI 90MHZ 88112910 PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00065 GLI 90MHZ 88112909 PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00066 GLI 60MHZ 88222232 PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00067 GLI 88104075 PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 Tester "Rob" N/A PC Tower Built exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00068 H1Q 150MHZ ###-###-#### PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00069 GLI 90MHZ 88222228 PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00070 HP VECTRA 510 US63554336 Desk Top Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 00071 HP Pavilion Pentium ###-###-####-3651 PC Tower Purchased exp - ------------------------------------------------------------------------------------------------------------------------------- 341 Tester #18 350MHZ N/A PC Tower Built exp - -------------------------------------------------------------------------------------------------------------------------------
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DEPT ASSET # NT ASSET # DESCRIPTION 1 SERIAL # DESCRIPTION 2 LEASE/PURCH CAP/EXP - ---- ------- ---------- ------------- -------- ------------- ----------- ------- 341 00072 GLI 88101540 PC Tower Purchased exp 341 00073 GLI 88222231 PC Tower Purchased exp 341 00074 HIQ 150MHZ PIII ###-###-#### PC Tower Purchased exp 341 00075 GLI 88112911 PC Tower Purchased exp 341 00076 ISO/LINK CELERION 17826 PC Tower Purchased exp 341 00077 HIQ PENTIUM ###-###-#### PC Tower Purchased exp 341 00078 HIQ DUAL PENTIUM ###-###-#### PC Tower Purchased exp 341 00081 SMARTBITS 2000 9252 Purchased exp 341 00087 TOSHIBA - Satellite 2065CDS 69812276A Laptop Purchased exp 341 00088 DELL Dimension F134F PC Tower Purchased exp 341 AMD 300 N/A PC Tower Built exp 341 00090 Scanner SG8AF231QS Scanner Purchased exp 341 00091 T/Link 60MHZ ###-###-#### PC Tower Purchased exp
6 28 EXHIBIT A WORK ORDER 29 EXHIBIT B CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT I, the undersigned, acknowledge that NETGEAR, Inc. ("NETGEAR"), has a contractual relationship with Nortel Networks Corporation or an affiliate of Nortel Networks Corporation (each, a "Nortel Networks Company") related to the performance of certain "Services", as a result of which in the course of my work as an employee, agent, contractor or subcontractor of NETGEAR, or as an employee of such agent, contractor or subcontractor of NETGEAR, I may be given access to information of a Nortel Networks Company. In consideration of (i) a Nortel Networks Company permitting NETGEAR to disclose to me, (ii) a Nortel Networks Company's direct disclosure to me, and/or (iii) access by me to information of a Nortel Networks Company in the course of performing Services, and in consideration of the compensation paid to me by NETGEAR or by an agent, contractor or subcontractor of NETGEAR for performance of Services, I agree as follows: 1. I shall receive and maintain all information disclosed to or accessed by me (whether orally or in written or other tangible form or otherwise) relating to a Nortel Networks Company and all work product produced by me in strictest confidence. 2. I shall not provide copies of any written or other tangible materials disclosed to, produced by or accessed by me to any parties to other than authorized employees of NETGEAR or the Nortel Networks Company. 3. I shall return to the Nortel Networks Company any materials provided by the Nortel Networks Company upon request therefor. 4. Any materials produced by me in connection with Services ("Work Product") shall be the sole property of the Nortel Networks Company, and I hereby assign whatever right, title and interest I may have or claim to such Work Product property and all rights therein, including, but not limited to, any patent, copyright, right to create derivative works, trademarks, trade secret, mask works, or other intellectual property rights, to the Nortel Networks Company, and hereby authorize any Nortel Networks Company and/or any person or entity obtaining rights directly or indirectly from such Nortel Networks Company (to the extent of such rights) to make any desired changes to the Work Product or any part thereof, to combine or use the Work Product with any other goods, products, materials, services or software in any manner desired, and to withhold my identity as an author in connection with any distribution or use of the Work Product in any manner thereof, either alone or in combination with other goods, products, materials, services or software. 5. I shall not make use of any information disclosed to, produced by or accessed by me for any purpose other than to perform Services. 30 6. The obligations hereunder are personal to me and shall continue in effect after the completion of Services, regardless of whether or not I remain associated in any manner, either directly or indirectly with NETGEAR, its agents, contractors and/or subcontractors. 7. I acknowledge that damages may not be an adequate remedy for a breach of this agreement by me and, consequently, that an injunction and/or other appropriate equitable relief may be obtained to remedy a breach or threatened breach hereof. Signature: ------------------------------ Name: ----------------------------------- Title: ---------------------------------- Date: -----------------------------------