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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.
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"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).
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"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.
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"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
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(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);
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(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:
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(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
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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.
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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;
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(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
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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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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.
<TABLE>
<CAPTION>
DATE OF
COMPANY AGREEMENT CAPTURE PERIOD OR CAPTURED PATENTS DURATION OF LICENSE
<S> <C> <C> <C>
1. Alcatel 1-Jan-96 5 yrs from Date of Agreement Term of patent
2. AT&T 1-Jul-83 5 yrs from Date of Agreement Term of patent
3. Ericsson 1-Dec-93 5 yrs from Date of Agreement Term of patent
4. HP 1-Jan-94 5 yrs from Date of Agreement Term of patent
5. Hitachi 1-Apr-95 5 yrs from Date of Agreement Term of patent
6. IBM 1-Jul-90 6 yrs from Date of Agreement Term of patent
7. Lucent 1-Oct-98 all patents issued on filings prior to 1-Jan-98 31-Dec-07
8. MatraCom 2-Jul-92 Perpetual Term of patent
9. Matsushita 27-Jun-94 5 yrs from Date of Agreement Term of patent
10. Mitsubishi 26-Dec-94 5 yrs from Date of Agreement Term of patent
11. Oki 16-Mar-94 5 yrs from Date of Agreement Term of patent
12. Philips 1-Apr-95 10 yrs from Date of Agreement Term of patent
13. Sanyo 13-Feb-93 5 yrs from Date of Agreement Term of patent
14. Sharp 16-Mar-94 5 yrs from Date of Agreement Term of patent
15. Siemens 21-Dec-93 5 yrs from Date of Agreement Term of patent
16. Sony 29-Aug-94 5 yrs from Date of Agreement Term of patent
17. Texas Instruments 1-Jan-82 5 yrs from Date of Agreement Term of patent
18. Toshiba 23-Mar-94 5 yrs from Date of Agreement Term of patent
19. Tellabs Operations 20-Dec-99 all patents issued on filings prior to 1-Jan-00 31-Dec-03
</TABLE>
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.
<TABLE>
<CAPTION>
DATE OF
COMPANY AGREEMENT CAPTURE PERIOD OR CAPTURED PATENTS DURATION OF LICENSE
<S> <C> <C> <C>
1. Cidco 1-Jan-97 5 yrs from Date of Agreement Term of patent
</TABLE>
20
<PAGE> 21
EXHIBIT B
THIRD-PARTY LICENSES
Third Party Licenses are used in the NETGEAR business associated with the
following products:
<TABLE>
<CAPTION>
XM128 - ISDN DIGITAL MODEM PRODUCT
----------------------------------------------------------------------------------------------------------------------------------
Vendor Product Notes
<S> <C> <C>
Adobe Acrobat Reader 3.0 Distribution Version
Adtran Algorithm Algorithm to determine SPID and Switch types in North America. Includes license
for Adtran Expert ISDN logo.
Microsoft Internet Explorer 3.0 Part of IEDK (Internet Explorer Developers Kit)
ZyXEL Windows 95/98/NT drivers
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
PA301 - 10M PCI PHONE LINE ADAPTER PRODUCT
----------------------------------------------------------------------------------------------------------------------------------
Vendor Product Notes
<S> <C> <C>
Broadcom Windows 95/98/NT drivers Includes license for Broadcom logo.
Ragula Systems Internet Sharing software Based on Fatpipe software. Includes license for Fatpipe logo.
Ragula Systems Network Services auto Modifications to Microsoft MSDN
installer
Microsoft MSDN CD Redistributable freeware from MSDN CD
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
PA101 - 10M USB PHONE LINE ADAPTER PRODUCT
----------------------------------------------------------------------------------------------------------------------------------
Vendor Product Notes
<S> <C> <C>
Broadcom Windows 95/98/NT Includes license for Broadcom logo.
Embedded drivers (ported
from Windows PCI drivers)
Ragula Systems Internet Sharing software Based on Fatpipe software. Includes license for Fatpipe logo.
Ragula Systems Network Services auto Modifications to Microsoft MSDN
installer
Microsoft MSDN CD Redistributable freeware from MSDN CD
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
PE102 - PHONE LINE ETHERNET BRIDGE PRODUCT
----------------------------------------------------------------------------------------------------------------------------------
Vendor Product Notes
<S> <C> <C>
Broadcom Windows 95/98/NT Includes license for Broadcom logo.
drivers (same as PA101)
KSLI/AOX KSLI Embedded drivers Ethernet drivers for KSLI microchip.
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
21
<PAGE> 22
PR356-56K ANALOG PHONE LINE ROUTER PRODUCT
<TABLE>
<CAPTION>
Vendor Product Notes
--------------------------------------------------------------------------------
<S> <C> <C>
Broadcom Windows 95/98/NT Includes license for Broadcom logo.
drivers (same as PA101)
KSLI/AOX KSLI Embedded drivers Ethernet drivers for KSLI microchip.
Ramp Networks Ramp Router Firmware Modification of their existing 200I
firmware.
--------------------------------------------------------------------------------
</TABLE>
RT210/211-ISDN ROUTER PRODUCT
<TABLE>
<CAPTION>
Vendor Product Notes
--------------------------------------------------------------------------------
<S> <C> <C>
Xylogics Hardware and Routing Product discontinued, but software
software on NETGEAR website for support
reasons
--------------------------------------------------------------------------------
</TABLE>
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
<TABLE>
<CAPTION>
Vendor Product Notes
--------------------------------------------------------------------------------
<S> <C> <C>
ZyXEL Hardware and Routing
software
ZyXEL GUI for the RT338 and
RT311 products
--------------------------------------------------------------------------------
</TABLE>
ND508/520 NETWORK DISK DRIVE PRODUCTS
<TABLE>
<CAPTION>
Vendor Product Notes
--------------------------------------------------------------------------------
<S> <C> <C>
Realm Hardware and Routing
Information software
Technologies
Apache ApacheWeb
Microsoft 1. 40comupd.exe-
upgrades, comct132.dll
2. W95ws2setup.exe-
upgrade to winsock
DLLs
--------------------------------------------------------------------------------
</TABLE>
PS110/104/105 PRINT SERVER PRODUCTS
<TABLE>
<CAPTION>
Vendor Product Notes
--------------------------------------------------------------------------------
<S> <C> <C>
Sercomm Hardware and print
serving software
InstallShield Installation Program Public software, one time fee paid
by Sercomm
--------------------------------------------------------------------------------
</TABLE>
FA310-10/100MBPS PCI ETHERNET ADAPTER PRODUCT
<TABLE>
<CAPTION>
Vendor Product Notes
--------------------------------------------------------------------------------
<S> <C> <C>
Lite-On Windows 95/98/NT/Novell Windows 2000 is just now being
Communications 3.x, 4.x, 5.x, submitted to Microsoft for inclusion
SCO Unix, NDIS 2 on CD
and packet drivers
--------------------------------------------------------------------------------
</TABLE>
FA311/312-10/100MBPS PCI ETHERNET ADAPTER PRODUCTS
<TABLE>
<CAPTION>
Vendor Product Notes
--------------------------------------------------------------------------------
<S> <C> <C>
National Windows Not on Microsoft CD
Semiconductor 95/98/2000/NT/Novell
--------------------------------------------------------------------------------
</TABLE>
22
<PAGE> 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
<PAGE> 24
PRODUCTS UNDER DEVELOPMENT
-------------------------------------------------------------------------------
GA620T - GIGABIT ETHERNET 1000BASE-T TWISTED PAIR PCI ADAPTER PRODUCT
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Vendor Product Notes
------ ------- -----
<S> <C> <C>
Alteon Windows 98/NT drivers Product under development
Websystems
</TABLE>
-------------------------------------------------------------------------------
WAXXX - PCI TO WIRELESS 11MB ADAPTER PRODUCT
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Vendor Product Notes
------ ------- -----
<S> <C> <C>
Sharewave Windows 95/98/NT drivers Product under development.
</TABLE>
-------------------------------------------------------------------------------
WBXXX - WIRELESS 11MB TO ETHERNET BRIDGE PRODUCT
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Vendor Product Notes
------ ------- -----
<S> <C> <C>
Sharewave Windows 95/98/NT drivers Product under development.
</TABLE>
-------------------------------------------------------------------------------
WAXXX - PCMCIA TO WIRELESS 11MB ADAPTER PRODUCT
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Vendor Product Notes
------ ------- -----
<S> <C> <C>
Sharewave Windows 95/98/NT drivers Product under development.
</TABLE>
-------------------------------------------------------------------------------
RD381 - ADSL (G.LITE) INTEGRATED DSL ROUTER AND FULL RATE ADSL ROUTER.
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Vendor Product Notes
------ ------- -----
<S> <C> <C>
ZyXEL Hardware and Routing software Product under development.
ZyXEL GUI for the products.
</TABLE>
--------------------------------------------------------------------------------
RT3XX - FIREWALL ROUTER PRODUCT
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Vendor Product Notes
------ ------- -----
<S> <C> <C>
ZyXEL Hardware and Routing software Product under development.
ZyXEL GUI for the products.
</TABLE>
--------------------------------------------------------------------------------
NDXXX - AUDIO/VIDEO JUKEBOX PRODUCT
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Vendor Product Notes
------ ------- -----
<S> <C> <C>
TBD Video and audio serving software Product under development.
</TABLE>
-------------------------------------------------------------------------------
PS1XX 3 PORT AND 1 PORT PRINT SERVER PRODUCT
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Vendor Product Notes
------ ------- -----
<S> <C> <C>
Sercomm Hardware and Routing software Product under development
</TABLE>
-------------------------------------------------------------------------------
24
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 30
EXHIBIT D
FURNITURE, FIXTURES, INVENTORY AND EQUIPMENT
<TABLE>
<CAPTION>
Asset NT Asset
Dept # # Description 1 Serial # Description 2 Lease/Purch Cap/Exp
<S> <C> <C> <C> <C> <C> <C> <C>
Smart Bit 2000 8373 Test Equipment Purchased
Smart Bit 2000 9364 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 FA 510 Test
Station
Pentium PC FA 510 Test
Station
Pentium PC PS Series Test
Station
Pentium PC EA101 Test
Station
Pentium PC EA101 Test
Station
Pentium PC FA101 Test
Station
181 HP LaserJet 551 MX - USJK209705 Printer Purchased
C3167A
181 HP LaserJet 551 MX - USJK210598 Printer Purchased
C3167A
181 HP LaserJet 551 MX - Printer Purchased
C3167A
507 1039178 NEC 6230 7Z001220 Laptop registrar
507 1036924 BOXLIGHT 4000 ULTRA LIGHT 2J7520288 Projector Purchased registrar
DLP
507 1037029 NEC 6230MX 81072112 Laptop Purchased registrar
507 1036449 WINBOOK XL P233 RBL256R5427S Laptop Purchased registrar
42
507 1030735 MAC POWERBOOK 3400C/200 Laptop Purchased registrar
507 1037180 WINBOOK XL P233 RBL256R3507L Laptop Purchased registrar
07
507 1042318 WinBook XL P266 RCN456W11385 Laptop Purchased registrar
07
507 1045570 IBM THINKPAD 600E 78-BXY04 Laptop Purchased registrar
507 1036220 WINBOOK XL P233 LAPTOP SBI256R14571 Laptop Purchased registrar
507 Dell Latitude Cpi336 H9949476 Laptop Leased
507 Dell 19" Monitor 2221DA67VE89 Monitor Leased
507 expensed HP 600 Office Jet Printer Purchased exp
507 1038329 WinBook XL RCM256 Laptop Purchased registrar
R4068Z40
507 Dell Latitude Cpi336 H9950697 Laptop Leased
507 Dell 19" Monitor Monitor Leased
507 expensed HP 600 Office Jet Printer Purchased expensed
507 1041487 Toshiba 320CT 5801442 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
</TABLE>
31
<PAGE> 31
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
507 WINBOOK XL 266 RBL256 LAPTOP PURCHASED
R3517L18
507 expensed HP 590 OFFICE JET PRINTER PURCHASED expensed
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 93120359 LAPTOP PURCHASED registar
+ mon + 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 233MHZ PC TOWER PURCHASED registar
181 1041013 SUN ULTRA 10 PURCHASED registar
181 1047085 DELL LATITUDE 300 + doc WCD7C LAPTOP PURCHASED registar
+ 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 PURCHASED registar
SX SMA
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 1S264551U78G LAPTOP PURCHASED registar
Y232
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 1S264551U78H LAPTOP PURCHASED registar
C753
341 1042601 NETCOM ETHERNET PURCHASED registar
SMARTCARDS
341 1042137 IBM THINKPAD 600 1S264551U78A LAPTOP PURCHASED registar
V521
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
341 1021581 INTEL PENTIUM P90 PURCHASED registar
</TABLE>
32
<PAGE> 32
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
341 1033296 SUPERCOM NETBOX PURCHASED registar
341 00054 1036999 NEC 6230MX 81072120 LAPTOP PURCHASED registar
341 00045 1049043 GATEWAY INTEL400MHZ E1200 14909816 DESKTOP PURCHASED registar
341 1049071 NETCOM SX SMARTCARD PURCHASED registar
341 1026673 COMPAQ ARMADA 41201 LAPTOP PURCHASED registar
341 1025117 ISDN NETWORK SIMULATOR PURCHASED registar
181 1007745 RICOH FAX 3100L PURCHASED registar
181 1009327 TEKTRONIX 2467B OSCILLOSCOPE B053956 PURCHASED registar
341 1048993 TEKTRONIX TDS 3054 OSCILLOSCOP PURCHASED registar
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 SMARTCAR PURCHASED registar
341 1029393 LAN CABLE TESTER AND CABLE PURCHASED registar
341 1049526 TEKTRONIX PROBE P6246 PURCHASED registar
341 1029774 HP DIGITIZING OSCILLOSCOPE 3327A00467&49 PURCHASED registar
5
181 00001 SONY NOTEBOOK PII LAPTOP PURCHASED registar
341 00002 ML-7710 10/100 BASE TX MULTILY SMARTCARD SMARTCARD PURCHASED registar
341 00003 ML-7710 10/100 BASE TX MULTILY SMARTCARD SMARTCARD PURCHASED registar
341 00004 ML-7710 10/100 BASE TX MULTILY SMARTCARD SMARTCARD PURCHASED registar
341 00005 ML-7710 10/100 BASE TX MULTILY SMARTCARD PURCHASED registar
SMARTCARD
341 00006 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00007 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00008 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00009 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00010 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00011 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00012 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00013 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00014 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00015 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00016 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00017 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00018 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00019 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00020 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00021 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00022 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00023 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00024 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
341 00025 SX-7410B 10/100 BASE TX SMARTCARD PURCHASED registar
ETHERNET SMARTCARD
</TABLE>
33
<PAGE> 33
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
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 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 DR130-12 Purchased registar
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 600 MHZ PIII System w/CD PC Tower Purchased registar
507 00038 600 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 Y8014324 Laptop Purchased registar
AU507 Toshiba Tecra 730XCDT 5712835 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 338210 Compaq Armada 3500 Laptop Purchased registar
GE507 old Toshiba Portege 660CDT 2716083 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- Laptop Purchased registar
4
GE507 New Dell 17" Monitor Monitor Purchased registar
GE507 Dell Doc Docking Station Purchased registar
JP507 IBM ThinkPad560E 97-AT1BK Laptop
JP507 Sony VAIO 5055X 28987600- Laptop Purchased registar
1110937
JP507 Nanao FlexScan 54T B2175115- Monitor Purchased registar
JAPAN
JP507 Sony VAIO 5055X 28987600- Laptop Purchased registar
1117992
JP507 Dell XP5R350 T03JS PC Purchased
JP507 Nanao FlexScan 54T 55399097_JAW Monitor Purchased
JP507 Dell GXA6233L/EM 19648625 PC Leased
</TABLE>
34
<PAGE> 34
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
JP50 ViewSonic VPA150 EK91010861 Monitor Leased
7
K050 Dell Latitude Xpi S42XL PC Purchased registrar
7
SE50 IBM ThinkPad 600 55206WP Laptop Purchased registrar
7
SE50 Philips 107MB HD0098470010 Monitor Purchased registrar
7 23
GB50 325789/00 Compaq Notebook PC 8749BB730191 Laptop Purchased registrar
7 731
GB50 A039750 Compaq Docking Station 6747BCL10710 Docking Station Purchased registrar
7
GB50 00732 Philips 107B Color Monitor TY1097370203 Monitor Purchased registrar
7 62
GB50 Nokia 2110 Mobile Phone 490138 Mobile Phone Purchased registrar
7
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 HIQ 233MHZ 9803025 PC Tower Purchased exp
341 00051 HIQ 150MHZ 9709233 PC Tower Purchased exp
341 00052 GLI 90MHZ 88112912 PC Tower Purchased exp
341 00055 HIQ 150MHZ 9705014 PC Tower Purchased exp
341 Tester #9 N/A PC Tower Built exp
341 00056 HIQ 150MHZ 9705013 PC Tower Purchased exp
341 00057 HIQ 90MHZ 9409387 PC Tower Purchased exp
341 00058 HIQ 150MHZ 9705016 PC Tower Purchased exp
341 00059 HIQ 150MHZ 9709230 PC Tower Purchased exp
341 00060 HIQ 150MHZ 9709038 PC Tower Purchased exp
341 00061 T/Link 90MHZ MLP PC Tower - Purchased exp
069703740 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 HIQ 150MHZ 9709231 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 266 5002-3651 PC Tower Purchased exp
341 Tester #18 350MHZ N/A PC Tower Built exp
341 00072 GLI 88101540 PC Tower Purchased exp
341 00073 GLI 88222231 PC Tower Purchased exp
341 00074 HIQ 150MHZ PIII 9709037 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 9804016 PC Tower Purchased exp
341 00078 HIQ DUAL PENTIUM 9803179 PC Tower Purchased exp
341 00081 SMARTBITS 2000 9252 Purchased exp
341 00087 TOSHIBA - Satellite 69812276A Laptop Purchased exp
2065CDS
341 00088 Dell Dimension F134F PC Tower Purchased exp
</TABLE>
35
<PAGE> 35
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
341 AMD 300 N/A PC TOWER BUILT exp
341 00090 SCANNER SG8AF231QS SCANNER PURCHASED exp
341 00091 T/LINK 60MHZ 069703749 PC TOWER PURCHASED exp
341 MISCELLANEOUS LAB BENCHES
W/LIGHTS
341 LAB STOOLS
341
341
</TABLE>
36
<PAGE> 36
EXHIBIT E
CERTAIN NNNA EMPLOYEES
<TABLE>
<CAPTION>
<S> <C> <C>
EMP# LAST NAME FIRST NAME
------- --------- ----------
4715074 Abba Annabelle
4715621 Ajinga Leilani
4715699 Berkowitz Phil
4715750 Blum John
4715206 Chatburn Michele
4714972 Cunningham Robert A.
4715353 Ding Josh
4713752 Dix Stephen
4713717 Fabiano Rick
4715916 Gregory Heath
4737130 Gross Don
4716071 Hill Mark
4716073 Huang Lillian
4715156 Kerr Duncan
4714885 Kim Kathy
4714938 Lee Raymond
4712802 Lo Patrick
4715103 Malloy John
4710048 Merrill Mark
4725493 Otero Eric
4714130 Pramanik Debashis
4715267 Reed Rob
4713988 Romero Kelly
4511220 Runkle Lisa
4711765 Shields Mike
4714400 Smith Chip (Authur)
4710628 Su Jimmy
4715018 Viahos Gus
4715501 Werdann Michael
4724176 Yi Bobi
4716019 Zompetti Tracey
4740579 Bielli Jean-Michel
4740729 Erlandsson Magnus
4740823 Jell Thomas
4750049 Kim Jin Gyeom
4750103 McLean Ian
4740886 Montanhas Eugenia
4713766 Nakagawa Hirohito
4750303 Owada Yumi
4740613 Peters Marco
4750351 Ponder Sue
4740500 Soares David
4750494 Takeuchi Hiroshi
</TABLE>
37
<PAGE> 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
<PAGE> 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:
<TABLE>
<CAPTION>
XM128 - ISDN DIGITAL MODEM PRODUCT
--------------------------------------------------------------------------------
<S> <C> <C>
Vendor Product Notes
--------------------------------------------------------------------------------
NETGEAR First Gear Configuration
Engineering Software
Slimware AutoSwitch/Auto SPID Program implementation to determine
SPID and Switch types in North
America.
--------------------------------------------------------------------------------
PA301 - 10M PCI PHONE LINE ADAPTER PRODUCT
--------------------------------------------------------------------------------
Vendor Product Notes
--------------------------------------------------------------------------------
NETGEAR First Gear Configuration
Engineering/ Software
Ragula Systems
--------------------------------------------------------------------------------
PA101 - 10M USB PHONE LINE ADAPTER PRODUCT
--------------------------------------------------------------------------------
Vendor Product Notes
--------------------------------------------------------------------------------
NETGEAR First Gear Configuration
Engineering/ Software
Ragula Systems
PE102 - PHONE LINE ETHERNET BRIDGE PRODUCT
--------------------------------------------------------------------------------
Vendor Product Notes
--------------------------------------------------------------------------------
Slimware Firmware code combining
Broadcom and KLSI
drivers
PR356 - 56K ANALOG PHONE LINE ROUTER PRODUCT
--------------------------------------------------------------------------------
Vendor Product Notes
--------------------------------------------------------------------------------
Slimware Firmware code combining
Broadcom and KLSI
drivers
RT210/211 - ISDN ROUTER PRODUCT
--------------------------------------------------------------------------------
Vendor Product Notes
--------------------------------------------------------------------------------
CICAT Graphical User Interface Product discontinued, but software
Program on NETGEAR website for support
reasons
--------------------------------------------------------------------------------
</TABLE>
42
<PAGE> 39
<TABLE>
<CAPTION>
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
--------------------------------------------------------------------------------
<S> <C> <C>
Vendor Product Notes
--------------------------------------------------------------------------------
Pellichoud GUI for the RT328/348
and RM356 products
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ND508/520 Production software, Production
testing software, Client Utility
software
--------------------------------------------------------------------------------
</TABLE>
43
<PAGE> 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
<TABLE>
<CAPTION>
COUNT OF
MODELS VERSION
------------------------------------------------------------------------------------------
PRODUCT DESCRIPTION AU FR GE GR JP KO NA UK WW
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
DB104 DUAL SPEED STARTER KIT 1 1 1 1 1 2 1
DS104 4 PORT DUAL SPEED 10/100 HUB 1 1 1 1 1 1 1
DS106 6 PORT SLIM DUAL SPEED HUB 1 1 1 1 1 1 1
DS108 8 PT SLIM 10/100 HUB 1 1 1 1 1 1 1
DS116 16 PORT SLIM DUAL SPEED HUB 1 1 1 1 1 1 1
DS309 9PT DUAL SPEED HUB W/UPLINK 1 1 1 1 1 1 1
DS508 8 PT D-SPD STACK HUB 1 1 1 1 1
DS516 16 PT D-SPD STACK HUB 1 1 1 1 1
DS524 24 PT D-SPD STACK HUB 1 1 1 1 1
EA101 USB ETHERNET ADAPTER 1 1 1
EA201 10 MBPS ISA CARD 1 1 3
EB104 NETWORK STARTER KIT ISA 1 1 1 1 1
EN104 4 PT 10BASE-T HUB 1 1 1 1 1
EN104TP 4 PT 10BASE-T HUB 1 1 1 1 1 1
EN106TP 6 PT 10BASE-T HUB 1 1 1 1 1
EN108 8 PT 10BASE-T HUB 1 1 1 1 1
EN108TP 8 PT 10BASE-T HUB 1 1 1 1 1
EN116 16 PT 10BASE-T HUB 1 1 1 1 1
EN308 8 PT 10BASE-T HUB 1 1 1 1 1
EN308TC 8 PT 10BASE-T HUB 1 1 1 1 1 1 1
EN516 16 PT 10BASE-T HUB 1 1 1 1 1
EN524 24 PT 10BASE-T HUB 1 1 1 1 1
FA310-10 10-PK 10/100 PCI ADAPTER 1
FA310-50 50-PK 10/100 PCI ADAPTER 1
FA310TX 10/100 PCI ADAPTER 1 1 1
FA310TXC 10/100 PCI ADAPTER&CBL 1 1 1
FA311 10/100 PCI ADAPTER NS 1
FA312 10/100 PCI ADAPTER WOL 1
FA410C 10/100 PCMIA ADAPTER 1
FA510 10/100 CARDBUS ADAPTER 1
</TABLE>
1
<PAGE> 41
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
FB104 4 PORT FE-NET STARTER KIT 1 1 1 1 1 1
FB108 8 PORT FE-NET STARTER KIT 1 1 1 1
FE104 4 PT FAST E-NET HUB 1 1 1 1 1
FE108 8 PT FAST E-NET HUB 1 1 1 1 1
FE116 16 PT 100BASE-TX FE HUB 1 1 1 1 1
FE508 8 PT FE STACK HUB 1 1 1 1 1
FE516 16 PT FE STACK HUB 1 1 1 1 1
FS102 2 PT FAST E0NET SW 1 1 1 1 1
FS104 4 PT FAST E-NET SW 1 1 1 1 1
FS105 5 PT FAST E-NET SWITCH 1 1 1 1 1
FS108 8 PORT 10/100 SWITCH,EXT PWR 1 1 1 1 1
FS308 8 PORT 10/100 SWITCH,INT PWR 1 1 1 1 1
FS508 8 PT FAST E-NET SW 1 1 1 1 1
FS509 9 PORT SWITCH W/GBIT UPLINK 1 1 1 1 1
FS516 16 PT FAST E-NET SW 1 1 1 1 1
FS518 18 PT FAST E-NET SW 1 1 1 1 1
FS524 24 PT FAST E-NET SW 1 1 1 1 1
FS562 8 PORT FIBER SWITCH 1 1 1 1 1
FS566 12 PORT FIBER SWITCH 1 1 1 1 1
GA620 IGBPS PCT FIBER CARD 1 1
GS504 GIGABIT FIBERSWT 4PATENT 1 1 1 1 1
LCP100 CABLE MODEM 1
MISC ACCESSORIES: POWER, PKG, ETC. Mult
ND508 NETWORK DISK DRIVE 8GB 1 1 1 1
ND520 NETWORK DISK DRIVE 20GB 1 1 1 1
PA101 10M USB PHONELINE ADAPTER 1
PA301 10M PCI PHONELINE ADAPTER 1
PE102 PHONELINE ETHERNET BRIDGE 1
PR356 56K ANALOG PHONELINE ROUTER 1
PS104 PRINT SERVER WITH 4 PATENT HUB 1 1 1 1 1
PS105 PRINT SERVER WITH 5 PATENT HUB 1 1 1 1 1 1 1
PS110 10/100 MBPS PRINT SERVER 1 1 1 1 1 1 1
RH340 ROUTER HUB 1
RH348 ROUTER HUB 1 1 1 1
RM356 56K MODEM/ROUTER W/4PT HUB 1 1 1 1 1
RT210 ISDN ROUTER 1 1 1 1
RT311 ETHERNET ROUTER 1
RT328 ISDN ROUTER 1 1 1 1 1
RT338 ISDN 10/100 ROUTER 1
SB104 NT WRK STARTER KIT 1 1 1 1 1 1
SW108 8PT 10B-T E-NET SW 1 1 1 1 1
SW502 2PT 10/1000 E-NET SW 1 1 1 1 1
SW507 7PT 10/100 E-NET SW 1 1 1 1 1
SW510 10PT 10/100 E-NET SW 1 1 1 1 1
SW518 18PT 10/100 E-NET SW 1 1 1 1 1
XM128 ISDN DIGITAL MODEM 1 1 1 1 1 1 1
TOTAL 55 15 57 15 52 2 65 56 15
</TABLE>
2
<PAGE> 42
3
<PAGE> 43
EXHIBIT J
TRANSFERRED TRADE MARKS
<TABLE>
<CAPTION>
APPLICATION REGISTRATION DATE OF
TRADE MARK COUNTY NUMBER FILING DATE NUMBER REGISTRATION
---------- ------ ----------- ----------- ------------ ------------
<S> <C> <C> <C> <C> <C>
NETGEAR Argentina 1634345 30 May 1997 1634345 30 May 1997
NETGEAR Australia 781510 5 Aug 1996 781510 5 Aug 1996
NETGEAR Brazil 819235202 22 May 1996 819235202 29 Dec 1998
NETGEAR Canada 834,529 24 Jan 1997 503,133 30 May 1997
NETGEAR European 000238576 23 April 1996 000238576 11 Sept 1998
Community
Trademarks
(CTM)
NETGEAR India 753803 28 Jan 1997
NETGEAR Japan 9-6723 24 Jan 1997
NETGEAR New Zealand 265381 5 Aug 1996 265381 5 Aug 1996
NETGEAR United States 75/026,272 30 Nov 1995 2,124,219 23 Dec 1997
</TABLE>
OTHER MARKS
NETGEAR Logo
The Gearguy in Gearland
FirstGEAR
netgear.com
netgearinc.com
5
<PAGE> 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
<PAGE> 45
EXHIBIT L
TRANSFERABLE SOFTWARE LICENSES
None
7
