Netgear 2012 Annual Report Download - page 195

(k) Except as set forth in Section 5.12(k)
of the Sellers Disclosure Schedule, neither Sellers nor any of their
Subsidiaries, nor any other Person acting on their behalf have disclosed, delivered or licensed to any escrow agent or other Person,
agreed to disclose, deliver or license to any escrow agent or other Person, or permitted the disclosure, delivery or licensing to any
escrow agent or other Person of, any Source Code for any AirCard Product or Business Software, that is, as of the date hereof,
distributed or offered for distribution, except for disclosures to Employees and contractors and the provision of software development
kits (SDKs) to existing customers for development purposes, in each case under binding written agreements that prohibit the disclosure
thereof and prohibit the use thereof except, with respect to Employees and contractors, in the performances of services to Sellers or any
of their Subsidiaries and, with respect to customers, for the purposes specified in the applicable SDK license agreement. Neither Sellers
nor any of their Subsidiaries has any duty or obligation (whether present, contingent or otherwise) to deliver, license or make available
the Source Code for any AirCard Product for Business Software that is, as of the date hereof, under development, sold or distributed, or
offered for sale or distribution, to any escrow agent or other Person, including as a result of the consummation of this Agreement.
(l)
To the Knowledge of Sellers, all AirCard Products and Transferred Technology and Licensed Technology are
free of any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus”
or other software routines or hardware
components that permit unauthorized access or the unauthorized disablement, data corruption or erasure.
(m) Except as set forth in Section 5.12(m)
of the Sellers Disclosure Schedule, no government funding, facilities or
resources of a Governmental Authority, university, college, or other educational institution or research center was used in the
development of any AirCard Product or Business Software within eight (8) years prior to the date of this Agreement and no
Governmental Authority, university, college, or other educational institution or research center has any claim or right in or to any
Transferred Technology. To the Knowledge of Sellers, no Person (including any current or former Employee of Sellers or any of their
Subsidiaries), who was involved in, or who contributed to, the creation or development of any AirCard Product offered for sale as of the
date hereof and Transferred Technology, has performed services for a Governmental Authority, university, college, or other educational
institution or research center during a period of time during which such Person was also performing services for Sellers or any of their
Subsidiaries.
(n)
Neither the execution, delivery or performance of this Agreement nor the consummation of the Transaction
Agreements, nor the assignment of the Transferred Contracts (assuming that all consents listed on Section 5.3
of the Sellers Disclosure
Schedule are obtained), will, with or without notice or lapse of time, result in: (i) a loss of any Transferred IP or Licensed IP that would
adversely affect Buyers’
rights to use the Transferred IP or Licensed IP; (ii) any encumbrance on any Transferred IP, or with respect to
the Licensed IP, any encumbrance which would conflict with the licenses granted to Buyers under the Cross-
License Agreement; (iii)
except as set forth in Section 5.12(n)(iii)
of the Sellers Disclosure Schedule, a payment or increased royalty or an obligation to offer any
discount or be bound by any “most favored royalty” or “most favored pricing”
terms under any Transferred Contract; or (iv) pursuant to
any Contract, other than a Transferred Contract, to which any Seller or any of its Subsidiaries is a party, the grant, assignment or
transfer to any other Person of any license or other right or interest in, under, or with respect to, any Transferred IP; provided
, that,
with respect to Licensed IP, the foregoing representation and warranty excludes the Sagemcom and Wavecom Patents. Following the
Closing, all Transferred IP will be fully transferable, alienable or licensable by Buyers without restriction and without payment of any
kind to any third party.
(o)
Sellers and their Subsidiaries have used commercially reasonable efforts to maintain, protect and preserve the
confidentiality of all confidential information and trade secrets included
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