exv10w1




Exhibit
10.1
EXECUTION COPY




AMENDMENT NO. 1




TO




AMENDED AND RESTATED

ORIGINAL EQUIPMENT MANUFACTURING AGREEMENT




     This Amendment No. 1 (this “Amendment”) to Amended and Restated Original Equipment
Manufacturing Agreement is entered into as of the 20th day of May, 2011 by and between Netronome
Systems Inc., a Delaware corporation with its principal place of business at 144 Emeryville Drive,
Suite 230, Cranberry Township, PA 16066 (“Netronome”) and Sourcefire, Inc., a Delaware
corporation with its principal place of business at 9770 Patuxent Woods Drive, Columbia, MD 21046
(“OEM”).



Recitals




     A. Netronome and OEM are parties to the Amended and Restated Original Equipment Manufacturing
Agreement entered into as of May 10, 2010 (the “Agreement”).



     B. Under the terms of the Agreement OEM purchased Support Services on a per-product basis for
the Equipment and Licensed Materials purchased or licensed under the OEM Agreement.



     C. The Parties now desire to amend the Agreement so that OEM purchases Support Services on a
fixed-fee, enterprise-wide basis for certain products.



     NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:



     1. Capitalized terms used in this Amendment and not otherwise defined herein shall have the
meanings set forth in the Agreement and the exhibits thereto.



     2. Netronome will provide Support Services to OEM in accordance with the terms and conditions
set forth in the Agreement as modified by the following:




	 	(a)	 	Netronome will provide OEM with Support Services for
all Covered Products for a period of five (5) years commencing on
January 1, 2011 and ending on December 31, 2015 (the “New Support
Term”). OEM shall have the option in its sole discretion by
providing Netronome prior written notice by no later than August 15,
2015 to extend the Support Services for all Covered Products for an
additional five (5) year term (the “Renewal Term”), which term
would commence on January 1, 2016 and end on December 31, 2020.






	 	(b)	 	“Annual Support Value” shall mean the
Maintenance Fee deemed to be owed for all Covered Products for a
particular calendar year as determined by the formula set forth in the
Growth Model used to




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	 	 	 	calculate adjustments for growth in excess of 35% on an annual basis as
outlined in Section 2(i) below.






	 	(c)	 	“Covered Products” shall mean all Equipment and
Licensed Materials purchased or licensed at anytime before or after
January 1, 2011 (i) directly by OEM pursuant to the Agreement or
pursuant to any separate software license agreement associated directly
with the Covered Products between the Parties, and (ii) by Integrators
(defined below) for the benefit of OEM. Except as otherwise set forth
below in Section 2(g), Covered Products will not include any SSL
appliances (the “SSLIA Products”).






	 	(d)	 	“Extended Coverage Right” shall mean the right
of OEM, if it does not exercise its right to extend Support Services
for the Renewal Term, to require Netronome to provide Support Services
to OEM during the twelve (12) month period commencing on January 1,
2016 and ending on December 31, 2016 (the “Extended Coverage
Period”) for all Covered Products purchased or licensed prior to
December 31, 2015. OEM, in its sole option and discretion, may
exercise this right if it does not exercise its right to extend Support
Services for the Renewal Term by providing written notice to Netronome
by no later than August 15, 2015.






	 	(e)	 	“Growth Model” shall mean the summary model
agreed upon by the Parties that includes the applicable assumptions,
forecasts, formulas and support fee rates that will be used to
determine the Annual Support Value.






	 	(f)	 	“Integrator” shall mean any third party that
manufactures, integrates or assembles OEM’s products or that is
otherwise part of OEM’s supply chain.






	 	(g)	 	In consideration for the provision of Support Services
for all Covered Products during the New Support Term, OEM will pay
Netronome a one-time Maintenance Fee of Eleven Million Dollars
($11,000,000)(USD) (the “New Support Term Maintenance Fee”).
The New Support Term Maintenance Fee does not include the maintenance
charges for Support Services for SSLIA Products purchased by OEM or its
Integrators. OEM will pay the current rate set forth in the Agreement
for Support Services for SSLIA Products, provided, however, promptly
following December 31, 2011 the Parties agree to negotiate in good
faith to either (i) agree upon a one-time fixed fee for Support
Services for SSLIA Products in which event the SSLIA Products will
become “Covered Products” under this Amendment for the remainder of the
New Support Term upon payment of such fixed fee, or (ii) agree upon a
revised per unit rate for Support Services for SSLIA Products.




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	 	(h)	 	To the extent OEM has (i) received an invoice for
Support Services for Covered Products for 2011, and (ii) paid such
invoice then Netronome will credit OEM for the full value of the amount
actually paid.






	 	(i)	 	If during the New Support Term the Annual Support Value
increases by more than thirty-five percent (35%) as compared to the
Annual Support Value for the immediately preceding year, then OEM will
pay Netronome an Additional Support Fee (defined below) in
consideration for the Support Services. The “Additional Support
Fee” shall be an amount equal to the percentage increase in excess
of 35% multiplied by $2,200,000. Additional Support Fees, if any, will
be payable on February 15th following the end of the previous year.
For purposes of example only, if the Annual Support Value for 2013 was
40% greater than the Annual Support Value for 2012, then the Additional
Support Fee would equal $110,000, or 5% x $2,200,000, which amount
would be payable on February 15, 2014. For the avoidance of doubt, the
periods that will be compared will be calendar years: 2012 and 2011;
2013 and 2012; 2014 and 2013; and 2015 and 2014. For comparing 2012 to
2011 the Parties agree that the 2011 figure will be computed as if all
OEM products shipped include Covered Products.






	 	(j)	 	If OEM exercises its right to extend Support Services
during the Renewal Term, the one-time Maintenance Fee owed by OEM for
the Renewal Term will be the product of (i) the Annual Support Value
forecasted for 2016 divided by the actual Annual Support Value for
2012, and (ii) the New Support Term Maintenance Fee. The Parties agree
to negotiate in good faith to determine the Maintenance Fee for the
Renewal Term and the 2016 Annual Support Value forecast. For purposes
of example only, if the agreed upon forecast for the 2016 Annual
Support Value is $25,000,000 and the amount of actual Annual Support
Value for 2012 is $12,500,000, then the amount of the Maintenance Fee
for the Renewal Term would be $22,000,000 (i.e.
[$25,000,000/$12,500,000] x $11,000,000).






	 	(k)	 	If OEM exercises its Extended Coverage Right, then it
shall be required to pay Netronome an additional fee of Two Million
Dollars ($2,000,000)(USD) and Netronome shall be obligated to provide
Support Services during the Extended Coverage Period.






	 	(l)	 	If OEM exercises its Extended Coverage Right it may,
without having the obligation to do so, purchase Support Services for
those Covered Products purchased or licensed after December 31,
2015 by OEM or an Integrator for the benefit of OEM in consideration
for the following support fees as measured from the shipping date of
the Covered Product to OEM’s customer:




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	 	a.	 	10% for the first 12 month period






	 	b.	 	8% for the second 12 month period






	 	c.	 	6% for the third 12 month period






	 	(m)	 	As part of the Support Services to be provided under
the Agreement and this Amendment, Netronome shall, at no additional
cost to OEM, (i) make available to OEM and Integrators for the benefit
of OEM all Maintenance Releases, Upgrades and all Enhancements to
Software that Netronome generally releases or generally makes available
to any of Netronome’s customers, and (ii) either repair or replace, at
Netronome’s option, any defective Hardware in a Covered Product.






	 	(n)	 	All warranties for Covered Products extended to OEM in
the Agreement are also extended to OEM’s Integrators that purchase or
license the Covered Products from Netronome for the benefit of OEM.






	 	(o)	 	Netronome will employ three (3) full-time engineers who
will serve as support engineers exclusively for OEM and who will be
dedicated, on a full-time basis, to OEM’s account.






	 	(p)	 	If the Agreement for any reason is terminated or
expires prior to the end of the New Support Term, the Extended Coverage
Period, the Renewal Term or the period covered by Section 2(l) of this
Amendment, Netronome shall be obligated to continue to provide Support
Services to OEM in accordance with the terms of the Agreement and this
Amendment for the remainder of the New Support Term, the Extended
Coverage Period, the Renewal Term and the period covered by Section
2(l) of this Amendment, as applicable.





     3. In the event of a conflict between the terms of the Agreement and this Amendment, the terms
of this Amendment will control solely with respect to the conflict.



     4. Except as specified herein, the Parties hereby ratify and affirm each of the other
provisions of the Agreement including without limitation, the terms and conditions of the Support
Plan.



[Signature Page Follows]




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     IN WITNESS WHEREOF, OEM and Netronome have duly executed this Amendment No. 1 to Amended and
Restated Original Equipment Manufacturing Agreement as of the day and year first above written.



	 	 	 
	Netronome Systems, Inc.	 	Sourcefire, Inc.
	 
	By: /s/ Perry J. Grace

	 	By: /s/ Todd P. Headley
	 

	 	 
	Name:
Perry J. Grace

Title: VP & CFO

	 	Name: Todd P. Headley

Title: Chief Financial Officer







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