NetScout Amendment #7
Exhibit 10
AMENDMENT NO. 7 TO
PRIVATE LABEL AGREEMENT
AND
PROJECT DEVELOPMENT AND LICENSE AGREEMENT
BETWEEN
CISCO SYSTEMS, INC.
AND
NETSCOUT SYSTEMS, INC.
This Amendment No. 7 ("Amendment #7"), having an Effective Date of
August 1, 2002, is made by and between Cisco Systems, Inc., a California
corporation having its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, U.S.A. ("Cisco"), and NetScout Systems, Inc., (Formerly
known as Frontier Software Development, Inc.) a Delaware corporation having its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("NetScout").
WHEREAS, Cisco and NetScout entered into the Project Development and
License Agreement on July 13, 1994 ("Software Agreement"), a Private Label
Agreement on October 17, 1995 ("Hardware Agreement") and five amendments dated
January 4, 1995 ("Amendment #1"), May 15, 1996 ("Amendment #2"), October 29,
1996 ("Amendment #3"), and Feb 23, 1998 ("Amendment #4"), and December 26, 1999
("Amendment #5"), and April 19, 2001 ("Amendment #6") collectively the
"Agreement"; and
WHEREAS, Cisco and NetScout desire to change and add certain terms to
the Agreement as specified below.
NOW THEREFORE, in consideration of the covenants and conditions
contained herein, the parties agree as follows:
1.0 DEFINITIONS.
All defined terms shall have the meaning as defined in the Agreement
except that terms defined herein shall have the meaning as defined in this
Amendment #7.
"Applications" shall mean, collectively, all NetScout RMON and other
management and monitoring application programs shipped to Cisco as Products
(see Section 1 of Amendment #2) under the Agreement, including but not
limited to, nGenius Real-Time Monitor (RTM) and TrafficDirector (TD).
SwitchProbes, RMON Agents, and Embedded Agents are not considered
Applications. For the purposes of clarification, notwithstanding anything
contrary in the Agreement, Applications shall not mean nGenius Performance
Manager(TM) software and other full version software products made generally
available by NetScout subsequent to the Effective Date of this Amendment #7.
"SwitchProbe Agent" shall mean the firmware embedded in the Standalone
SwitchProbes.
"Effective Date" as used herein shall mean the Effective Date of this Amendment
#7.
2.0 All terms in this Amendment #7 shall supercede any previous terms that
may be in conflict.
Cisco Systems Confidential Information
NetScout Amendment #7
[*]INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
3.0 RIGHT TO DISCONTINUE REAL TIME MONITOR (RTM)
Cisco has the right to discontinue reselling RTM in the Cisco bundles
at any time. Should Cisco discontinue RTM in the LMS bundle, Cisco shall provide
45 days' prior notification to NetScout before discontinuing RTM in the LMS
bundle; provided, however, if Cisco needs to remove, temporarily or otherwise,
RTM from the LMS bundle due to quality issues or due to NetScout's material
failure to meet the mutually agreed upon RTM release schedules, then Cisco may
remove the RTM without notice to NetScout.
4.0 ROYALTIES FEES, TRIGGER EVENTS, AND SCHEDULES
Notwithstanding anything to the contrary in the Agreement, the royalty for each
unit of RTM shipped for revenue by Cisco to new LMS bundle customers shall be as
follows:
(1) For units shipped from [*].
(2) For units shipped from [*].
Royalties shall be paid by Cisco within 45 days after the completion of each
calendar quarter. From time to time, Cisco may [*] for the LMS bundle, and these
[*] to the royalties paid to NetScout for RTM.
LAN MANAGEMENT SOLUTION (LMS) FOR WINDOWS NT/2000 AND SOLARIS SYSTEMS
--------------------------------------------------------- --------------------
TERMS ROYALTY PER UNIT
--------------------------------------------------------- --------------------
Royalty for RTM (bundled inside) from [*] [*]
--------------------------------------------------------- --------------------
Royalty for RTM (bundled inside) from [*] [*]
--------------------------------------------------------- --------------------
5.0 DEMONSTRATIONS, NOT-FOR-RESALE EVALUATIONS
NetScout nGenius Real-Time Monitor (RTM) and TrafficDirector shipped by
Cisco for internal use in the support of sales or marketing opportunities for
those applications or devices making use of those applications, including
without limitation, Not for Resale kits, evaluations, and demonstrations will be
[*] and require [*] to be made to NetScout and [*].
6.0 MAINTENANCE DELIVERABLE AND FEES
From the Effective Date of this Amendment #7, Cisco shall pay NetScout
maintenance fees in the amounts described below for the deliverables indicated
in the following table. These maintenance fees will be paid by Cisco within 45
days after the completion of each calendar quarter, as further described in the
schedule below. Notwithstanding anything contrary in the Agreement, the
maintenance fees shall be effective until [*] after the End of Sale date of the
last Application or Product resold by Cisco under this Agreement.
Maintenance Deliverables
----------------------- --------------------- -------------------- --------------------- --------------------
PRODUCT ▇▇▇▇▇ ▇ TAC SUPPORT BUG FIXES UPDATES (DEVICE UPGRADES
SUPPORT)
----------------------- --------------------- -------------------- --------------------- --------------------
SwitchProbe [*] [*] [*] [*]
----------------------- --------------------- -------------------- --------------------- --------------------
TrafficDirector [*] [*] [*] [*]
----------------------- --------------------- -------------------- --------------------- --------------------
RTM [*] [*] [*] [*]
----------------------- --------------------- -------------------- --------------------- --------------------
Cisco Systems Confidential Information Page 2
NetScout Amendment #7
[*]INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
Maintenance Fees
[*]
The maintenance fees payments per calendar quarter shall be made as follows:
[*]
If required, any additional quarterly payments shall be made at an amount of [*]
per quarter.
Cisco shall [*] maintenance fees or royalties for units of Applications in the
LMS bundle shipped by Cisco as updates or upgrades and of the SwitchProbe Agent
shipped by Cisco as updates or upgrades, including but not limited to SAS
Software Application Support, SASU, Software Application Support with Upgrades,
and SMARTnet. It is the intent of the parties that the maintenance fees per this
Section will [*] maintenance fees payable by Cisco to NetScout for Applications
and for the SwitchProbe Agent.
7.0 Section 2.0 of Amendment #5 is deleted in its entirety and replaced
with the following:
The term of the Agreement is hereby extended to November 1, 2003.
Thereafter, this Agreement shall be automatically renewed for additional
successive eighteen (18) month periods, unless written notice of non-renewal is
received by the other party no later than one hundred twenty (120) days prior to
the expiration of the then current term.
Section [*] this Amendment #7 will survive termination or expiration of
this Agreement. In the event of any termination or expiration of this Agreement,
NetScout will continue to provide to Cisco [*] at the [*] set forth in Section
[*] of this Amendment #7 above, and [*]. Notwithstanding the above sentence, in
the event of Cisco's material breach of [*], which shall include without
limitation material breach of Section [*] of this Amendment #7, the [*] shall
remain in effect except for those [*] directly affected by Cisco's breach of
those [*]. If Cisco renews the [*] of the Agreement for [*] after the [*], then
NetScout will be obligated to provide such [*].
8.0 Section 5.0 of Amendment #4, TrafficDirector Licensing, is amended to
include RTM as software that is governed by Section 5.0 of Amendment #4 in
addition to the TrafficDirector software.
9.0 All other terms and conditions of the Agreement remain in full force and in
effect except as modified herein by Amendment #7.
Cisco Systems Confidential Information Page 3
NetScout Amendment #7
[*]INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their duly authorized representatives effective as of the last date given below.
CISCO SYSTEMS, INC. NETSCOUT SYSTEMS, INC.
/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Signature Signature
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name Name
Director, Engineering, EMBU Chief Financial Officer
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Title Title
9/8/02 8/29/02
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Date Date
Cisco Systems Confidential Information Page 4