exv10w3






Exhibit 10.3




INTELLECTUAL PROPERTY LICENSE AGREEMENT




     THIS AGREEMENT made and entered into as of the 19th day of March, 2010, by and
among Nortel Networks Limited, a corporation incorporated under the laws of Canada, having its
executive offices at 5945 Airport Road, Suite 360, Mississauga, Ontario, L4V 1R9, Canada
(hereinafter “Nortel”), on its behalf and on behalf of its Affiliates, Ciena Luxembourg S.a.r.l., a
Societée à responsabilité limitée organized under the laws of the Grand Duchy of Luxembourg
(hereinafter “Licensee”), on behalf of itself and its Affiliates, and, only with respect to the
sections of the Agreement in which it is expressly named, Ciena Corporation, a corporation
incorporated under the laws of the State of Delaware having its executive offices at 1201 Winterson
Road, Linthicum, Maryland 21090 (“Ciena Corporation”).



     WHEREAS, on January 14, 2009 (the “Petition Date”), Nortel and certain of its Affiliates
(defined below) filed an application for protection under the Companies’ Creditors Arrangement Act
(the “CCAA”) and an order was issued on such date under the CCAA by the Superior Court of Justice
of the Province of Ontario Canada (the proceeding commenced by such application, the “Canadian
Case” and the Court in which such proceeding was commenced hereinafter the “CCAA Court”);



     WHEREAS, on the Petition Date, Nortel Networks Inc. (“NNI”), an Affiliate of Nortel, and
certain of its Affiliates (collectively the “U.S. Debtors”) filed voluntary petitions pursuant to
title 11 of the United States Code (the “U.S. Bankruptcy Code” and the cases commenced by such
petitions, the “Chapter 11 Cases”) in the United States Bankruptcy Court for the District of
Delaware (the “U.S. Bankruptcy Court”);



     WHEREAS, on January 15, 2009, Nortel Networks UK Limited (“NNUK”) and certain other entities
obtained orders from the English High Court of Justice for the appointment of administrators
pursuant to the Insolvency Act of 1986;



     WHEREAS Nortel and certain of its Affiliates, on the one hand, and Ciena Corporation, on the
other hand, have entered into an amended and restated asset sale agreement dated as of November 24,
2009 as amended from time to time (hereinafter the “Asset Sale Agreement”) for the sale by Nortel
to Ciena Corporation, or a purchaser designated by Ciena Corporation, of certain assets and an
assumption of certain liabilities of Nortel relating to the optical networking solutions and
carrier ethernet switching segments of Nortel’s Metro Ethernet Networks business (the “MEN
Business”) as conducted as of the Closing Date by Nortel and its Affiliates, and concurrently
therewith, the Parties have entered into certain ancillary agreements (“Transaction Documents”)
including the agreement between the EMEA Sellers and Ciena Corporation, as amended (the “EMEA Asset
Sale Agreement”);



     WHEREAS, Ciena Corporation has designated Licensee to acquire, Nortel intends to assign to
Licensee, and Licensee intends to acquire, certain intellectual property assets, in each case
pursuant to the Asset Sale Agreement and the EMEA Asset Sale Agreement.



     WHEREAS, pursuant to this Agreement and as further described herein, Nortel intends to license
to Licensee certain intellectual property assets and receive from Licensee a license of



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Confidential



certain intellectual property (including certain assets expected to be assigned to purchasers
of businesses of Nortel and its Affiliates other than the MEN Business); and




     WHEREAS, pursuant to this Agreement and as further described herein, Licensee
intends to license to Nortel certain intellectual property assets (including certain assets
expected to be licensed to purchasers of businesses of Nortel and its Affiliates other than the MEN
Business) and receive in consideration for such license a license of equivalent value of certain
intellectual property from Nortel.



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



ARTICLE ONE — DEFINITIONS





	1.01	 	The following terms shall have their respective meanings as set forth in this Section 1.01
below.






	 	(a)	 	“Additional Licensed Patents” means the Patents listed in Exhibit VI.
	 
	 	(b)	 	“Affiliate” means Affiliate as defined in the Asset Sale Agreement, except that
solely for the purposes of this Agreement, Affiliates of Nortel shall include the EMEA
Sellers and their Affiliates and, in relation to Nortel Ukraine Limited, such entity
shall continue to be an “Affiliate” for the purposes of this Agreement after the time at
which any insolvency proceedings are opened in respect of it.
	 
	 	(c)	 	“Agreement” means this Intellectual Property License Agreement, as modified,
amended or supplemented upon written agreement of the Parties from time to time.
	 
	 	(d)	 	“Become Infected” means [*].
	 
	 	(e)	 	“Business” means the Business as defined in the Asset Sale Agreement.
	 
	 	(f)	 	“Carrier Ethernet Products” means [*].
	 
	 	(g)	 	“Carrier Ethernet Switching Product” means [*].
	 
	 	(h)	 	“Carrier Ethernet Network Management Product” means [*].
	 
	 	(i)	 	“CDMA/LTE Field” has the meaning set out in Schedule 1.01.
	 
	 	(j)	 	“Confidential Information” means any business, marketing, technical, scientific
or other information disclosed by any Party which, at the time of disclosure, is
designated as confidential (or like designation), is disclosed subject to a
confidentiality agreement, nondisclosure agreement or other written agreement pursuant
to which the party which receives such information is required to keep the information
confidential or is otherwise disclosed in circumstances of confidence







 




			
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	 	 	 	that should be understood by the receiving Party, exercising reasonable business
judgment, to be confidential.
	 
	 	(k)	 	“Contractor” means, with respect to a Party, a third party contracted by such
Party or any of its Affiliates to perform the following types of services for and on
behalf of that Party or its Affiliates: resale, development, design, manufacturing,
production, testing, importing, distribution, product service and support, and any other
comparable services to any of the foregoing.
	 
	 	(l)	 	“Controlled” means, with reference to any Patents, copyrights or other
Intellectual Property, other than Trademarks, that such Patents, copyrights or other
Intellectual Property are licensable or sub-licensable by a Party or any of its
Affiliates (excluding joint ventures) without the need to obtain consent of any third
party (or if third party consent is required, after obtaining such consent), and without
relinquishing or otherwise losing any rights of such Party or Affiliate or providing
consideration to any third party, unless the other Party compensates such consideration
in full. Notwithstanding the foregoing, neither Nortel nor any Nortel Affiliate shall
be obligated to obtain any consent of any third party or to assume or maintain any
agreement under which such Intellectual Property is licensed to, or co-owned by, Nortel
or such Affiliate. Notwithstanding anything to the contrary (including the statement
“excluding joint ventures” in the definitions of Controlled, Exclusively Licensed
Intellectual Property, Licensed Intellectual Property, and Licensed Patents), any
Intellectual Property (other than Trademarks) licensed to Nortel by a joint venture is
deemed “Controlled” by Nortel to the extent it can be sublicensed by Nortel under the
conditions mentioned above.
	 
	 	(m)	 	“CVAS Field” has the meaning set forth in Schedule 1.01.
	 
	 	(n)	 	“Documentation” means all user and operator manuals and architectural or design
specifications relating to the use, development or support of the Licensed Software.
	 
	 	(o)	 	“EMEA Sellers” means the EMEA Sellers as defined in the Asset Sale Agreement.
	 
	 	(p)	 	“End User License Agreement” means a license agreement with any end user customer
or any reseller or other intermediary in connection with sale of products or services to
any end user customer.
	 
	 	(q)	 	“Ethernet” means the family of computer networking technologies for local area
networks covered by the IEEE 802.3x standard (or any successor thereto), regardless of
data rate.
	 
	 	(r)	 	“Enterprise Business” means [*].
	 
	 	(s)	 	“Enterprise Field” has the meaning set forth in Schedule 1.01.
	 
	 	(t)	 	“Enterprise Products” means those products set forth on Exhibit VII.
	 
	 	(u)	 	“Enterprise Services” means [*].






 




			
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	 	(v)	 	“Exclusive Field of Use” means the commercialization and sale of the Exclusively
Licensed Products, but excludes the products and services in the field of the Nortel
Retained Businesses and natural evolutions of such field, and further excludes the
following: [*].
	 
	 	(w)	 	“Exclusively Licensed Intellectual Property” means [*].
	 
	 	(x)	 	“Exclusively Licensed Products” means [*].
	 
	 	(y)	 	“French Irrevocable Offer” has the meaning given to it in the EMEA Asset Sale
Agreement.
	 
	 	(z)	 	“GSM Access Field” has the meaning set out in Schedule 1.01.
	 
	 	(aa)	 	“GSM Core Field” ” has the meaning set out in Schedule 1.01.
	 
	 	(bb)	 	“Improvement” means any improvement, enhancement, modification, derivative work
or upgrade made from and after the Closing Date to any Intellectual Property and
includes all Intellectual Property therein.
	 
	 	(cc)	 	“Integration Rights” means the right to integrate any products or services (the
“Integrating Items”) with or to existing or independently provided customer
infrastructure or products for interoperability purposes, as well as to connect any such
Integrating Items to independently provided external network infrastructure, products or
services for interoperability purposes, and to use such integrated and/or connected
products, services and infrastructure, to the extent such integration and/or connection
is required for interoperability and all services relating to the foregoing.
	 
	 	(dd)	 	“Intellectual Property” shall have the meaning set forth in the Asset Sale
Agreement.
	 
	 	(ee)	 	“Licensee Improvement” means any Improvement made by or for Licensee to any of
the Transferred Intellectual Property or Licensed Intellectual Property.
	 
	 	(ff)	 	“Licensed Intellectual Property” means (i) all Intellectual Property (excluding
any Patents, Trademarks, and Software) to the extent such Intellectual Property covers
or is embodied in, in whole or in part, the Licensed Products of the Business, as such
Intellectual Property exists as of the Closing Date, which Intellectual Property is
Controlled or exclusively owned by Nortel or its Affiliates (excluding joint ventures)
as of the Closing Date, (ii) the Licensed Software, and (iii) the Licensed Patents.
Licensed Intellectual Property includes Tools, but excludes the Transferred Intellectual
Property, the Trademarks, and any Intellectual Property included in, or used to provide,
the Overhead and Shared Services.
	 
	 	(gg)	 	“Licensed Patents” means [*].
	 
	 	(hh)	 	“Licensed Products” means [*].






 




			
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	 	(ii)	 	“Licensed Software” means [*].
	 
	 	(jj)	 	“LTE Access Field” has the meaning set out in Schedule 1.1.
	 
	 	(kk)	 	“NNSA” means Nortel Networks SA, a company incorporated in accordance with the
laws of France and with registered number 389 516 741.
	 
	 	(ll)	 	“Nortel Improvement” means any Improvement made by or for Nortel or its
Affiliates to any of the Transferred Intellectual Property or Licensed Intellectual
Property.
	 
	 	(mm)	 	“Nortel Proposed Divestitures” means the following Nortel Retained Businesses:
(i) the wireless CDMA and LTE businesses as currently planned for sale to
Telefonaktiebolaget L M Ericsson (publ) pursuant to the Asset Sale Agreement entered
into as of July 24, 2009, as such agreement may be amended from time to time, (ii) the
Enterprise Business, (iii) the CVAS business including the design, development,
manufacture, assembly, testing, marketing, sale, distribution and supply of the products
and provision of the services within the CVAS Field, (iv) the GSM Access business
including the design, development, manufacture, assembly, testing, marketing, sale,
distribution and supply of the products and provision of the services within the GSM
Access Field, (v) the GSM Core business including the design, development, manufacture,
assembly, testing, marketing, sale, distribution and supply of the products and
provision of the services within the GSM Core Field, (vi) the Passport business
including the design, development, manufacture, assembly, testing, marketing, sale,
distribution and supply of the products and provision of the services within the
Passport Field, (vii) the LTE Access business including the design, development,
manufacture, assembly, testing, marketing, sale, distribution and supply of the products
and provision of the services within the LTE Access Field, and (viii) the Packet Core
business including the design, development, manufacture, assembly, testing, marketing,
sale, distribution and supply of the products and provision of the services within the
Packet Core Field, in each case together with the products and services associated with
or ancillary to such businesses in their respective fields or other assets of such
businesses if sold separately.
	 
	 	(nn)	 	“Nortel Retained Businesses” means the businesses (other than the Business) of
Nortel, its Affiliates, the EMEA Sellers and Affiliates of the EMEA Sellers, existing as
of January 14, 2009. For the avoidance of doubt, any product, service or activity of
the businesses of Nortel, its Affiliates, the EMEA Sellers or Affiliates of EMEA Sellers
(other than the Business) as of January 14, 2009 shall be deemed included in the Nortel
Retained Businesses irrespective of whether it is or was also included in the Business.
Nortel Retained Businesses shall include the performance by the Sellers, the EMEA
Sellers and their Affiliates (to the extent contemplated under the Asset Sale Agreement
and the EMEA Asset Sale Agreement) under (a) the Bundled Contracts, Non-Assignable
Contracts, Excluded 365 Contracts, and the Excluded Other Customer Contracts; (b) any
contracts, arrangements or agreements of the EMEA Sellers or their Affiliates which do
not transfer to the Licensee under






 




			
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	 	 	 	the EMEA Asset Sale Agreement; and (c) any contracts, arrangements or agreements of
NNSA which do not transfer to the Licensee under the French Irrevocable Offer.
	 
	 	(oo)	 	“Open Source Software License” shall mean [*].
	 
	 	(pp)	 	“Optical Field” means [*].
	 
	 	(qq)	 	“Optical Network Management Product” means [*].
	 
	 	(rr)	 	“Optical Switching and Multiplexing Products” means [*].
	 
	 	(ss)	 	“Other Tools” means the specified versions of the items listed under “Other
Tools” in Exhibit I.
	 
	 	(tt)	 	“Packet Core Field” has the meaning set out in Schedule 1.01.
	 
	 	(uu)	 	“Packet Optical Transport Products” means [*].
	 
	 	(vv)	 	“Party” means either Nortel or Licensee.
	 
	 	(ww)	 	“Patents” means Patents as defined in the Asset Sale Agreement.
	 
	 	(xx)	 	“Passport Field” has the meaning set out in Schedule 1.01.
	 
	 	(yy)	 	“Plan of Record” means Plan of Record as defined in the Asset Sale Agreement
	 
	 	(zz)	 	“Product Development Tools” means the specified versions of the items listed
under “Product Development Tools” in Exhibit I.
	 
	 	(aaa)	 	“Software” means Software as defined in the Asset Sale Agreement.
	 
	 	(bbb)	 	“Tools” means Other Tools and Product Development Tools.
	 
	 	(ccc)	 	“Trademarks” means Trademarks as defined in the Asset Sale Agreement.
	 
	 	(ddd)	 	“Transferred Intellectual Property” means the Transferred Intellectual Property
as defined in the Asset Sale Agreement.
	 
	 	(eee)	 	“WDM Transport Products” means [*].






	1.02	 	Capitalized terms used in this Agreement not otherwise defined in Section 1.01 shall have the
meaning ascribed to them in the Asset Sale Agreement.





ARTICLE TWO- GRANT OF RIGHTS





	2.01	 	Non-exclusive License. Subject to the terms and conditions of this Agreement,
Nortel, on behalf of itself and its Affiliates, hereby grants to Licensee a perpetual,
irrevocable,






 




			
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	 	 	non-assignable (except as specifically provided in Section 4.06), non-sublicensable (except
as specifically provided in Sections 2.06 and 4.06), non-exclusive, worldwide, royalty-free,
fully paid-up license [*].
	 
	2.02	 	Exclusive License. Subject to the terms and conditions of this Agreement, Nortel, on
behalf of itself and its Affiliates, hereby grants to Licensee a perpetual, irrevocable,
non-assignable (except as specifically provided in Section 4.06), non-sublicensable (except as
specifically provided in Sections 2.06 and 4.06), exclusive, worldwide, royalty-free, fully
paid-up license [*].
	 
	2.03	 	Have Made Right. The licenses granted in Section 2.01 and Section 2.02 also include
the right of Licensee to have products and services manufactured and rendered for it by one or
more Contractors for subsequent commercialization by Licensee in its ordinary course of
business.
	 
	2.04	 	Other Tools. Subject to the terms and conditions of this Agreement, Nortel hereby
grants to Licensee a perpetual, irrevocable, non-assignable (except as specifically provided
in Section 4.06), non-sublicensable (except as specifically provided in this Section and
Section 2.06 and in Section 4.06), non-exclusive, worldwide, royalty-free, fully paid-up
license under the Licensed Intellectual Property to use and copy (but not to make derivative
works or modify), in object code form only (to the extent the Other Tools are in the form of
Software), the Other Tools in connection with Licensed Products, and to sublicense to
Contractors the use of, the Other Tools, solely for the purpose of and to the extent required,
to exercise Licensee’s rights under this Section 2.
	 
	2.05	 	Software Provided to End Users. Licensed Software that is sublicensed to end users
by Licensee, and Software included in the Transferred Intellectual Property licensed back to
Nortel under Section 2.07 hereof (“Licensed-Back Software”) that is sublicensed to end users
by Nortel, shall be provided to such end users under an End User License Agreement and shall
be provided to end users only in object code form or other form in which the source code of
such Licensed Software or Licensed-Back Software is not visible to or accessible by an end
user. Each such End User License Agreement will contain terms substantially similar to (but
no less protective of the Software than) those set forth in Exhibit II. [*]
	 
	2.06	 	Sublicensability. The licenses granted in Section 2.01, 2.02 and 2.04 to Licensee
include the right to grant sublicenses only within the scope of such licenses [*].
	 
	2.07	 	Nortel License to Transferred Intellectual Property. Subject to the terms and
conditions of this Agreement, Licensee hereby grants Nortel a non-assignable (except as
specifically provided in Section 4.05), non-sublicensable (except as specifically provided in
this Section 2.07 and Section 4.05), fully paid-up, royalty-free, non-exclusive, perpetual,
irrevocable, worldwide license [*].
	 
	2.08	 	Ownership of Improvements. All Licensee Improvements and any Intellectual Property
arising therefrom or embodied therein shall be owned exclusively by Licensee, and are not
included within the scope of the license to Nortel under Section 2.07. Licensee shall






 




			
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	 	 	have no obligation to provide Nortel with the physical embodiment of any Licensee
Improvement. All Nortel Improvements and any Intellectual Property arising therefrom or
embodied therein shall be owned exclusively by Nortel, and are not included within the scope
of the licenses to Licensee. Nortel shall have no obligation to provide Licensee with the
physical embodiment of any Nortel Improvement.
	 
	2.09	 	Prohibited Uses. All rights not expressly granted by one Party to another herein are
reserved by the first Party. Neither Party shall use any Intellectual Property licensed to it
under this Agreement except as permitted by this Agreement. Licensee and Ciena Corporation
acknowledges that the Licensed Intellectual Property including the Exclusively Licensed
Intellectual Property includes Nortel’s Confidential Information, including the Licensed
Software and the Tools. Nortel acknowledges that the Transferred Intellectual Property
includes Licensee’s Confidential Information. Licensee shall not reverse engineer,
disassemble, reverse translate, decompile, or in any other manner decode any Software provided
or licensed to it hereunder in order to derive the source code form or to decrypt or defeat
any security measures or codes contained in such Software, except where such rights cannot be
excluded under the Council of the European Communities Directive on the legal protection of
Computer Programs dated 14th May 1991 (91/250/EEC). Neither Party in its capacity
as a licensee nor Ciena Corporation shall include, integrate, embed, combine or use the
Licensed Software or Licensed-Back Software, as applicable, in a manner that would cause such
Software to Become Infected without the consent of the owner of such Software. For the
avoidance of doubt, the owner of any Software licensed pursuant to this Agreement may, at its
sole discretion, subject any such Software to any Open Source Software License.
	 
	2.10	 	Modifications to Fields of Nortel Proposed Divestitures. Nortel will be permitted to
modify the definitions of the fields of use of each of the Nortel Proposed Divestitures (other
than the CDMA/LTE Field and the Enterprise Field) in the course of its negotiations of such
divestitures provided that:






	 	(i)	 	any such modification that results in a material expansion of
the purchaser’s rights with respect to the proposed grant back to Nortel (or
any of its permitted assigns and sublicensees) of any rights to the Transferred
Intellectual Property within the scope of the Optical Field will require
Licensee’s consent, such consent not to be unreasonably withheld; and
	 
	 	(ii)	 	Nortel will provide Licensee with written notice by facsimile
of any modification to the field of use of a Nortel Proposed Divestiture (other
than the CDMA/LTE Field and the Enterprise Field) by the later (a) of at least
two (2) Business Days prior to the date of the U.S. Sale Hearing (or if no U.S.
Sale Hearing is required in connection with such transaction, then at least two
(2) Business Days prior to the date of execution of the agreement defining the
fields of the Nortel Proposed Divestitures differently than in this Agreement)
or (b) the conclusion of any auction in connection therewith.




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	 	 	Notwithstanding the foregoing, in the event the Enterprise Business is not sold to Avaya
Inc. for any reason, then the Enterprise Field will be subject to the provisions of this
Section 2.10.
	 
	2.11	 	No Trademark Licenses. No rights to Nortel’s Trademarks are granted to Licensee
pursuant to this Agreement. No rights to Licensee’s Trademarks are granted to Nortel pursuant
to this Agreement.






	2.12	 	Delivery. As promptly as reasonably practicable after the Closing Date, Nortel shall
provide, and cause its Affiliates to provide, a copy to the Licensee or Ciena Corporation of
the Licensed Software and the Tools, to the extent in its or their possession or control,
together with their respective Documentation identified prior to or within a reasonable period
after Closing (and in such regard, Nortel shall use reasonable efforts to identify any such
Documentation prior to or as promptly as reasonably practicable after the Closing Date), and
such other embodiments of the Licensed Intellectual Property (e.g., designs) as Licensee may
reasonably require in order to exercise its licenses hereunder, to the extent in Nortel’s or
its Affiliates’ possession or control, in such manner and on such media as reasonably
requested by Licensee. If any of the items required to be provided to Licensee by the
foregoing sentence are not in Nortel’s possession or control, Nortel shall use reasonable
efforts (without further cost to Nortel) to obtain such items so as to be able to provide them
to Licensee or Ciena Corporation. Except as set forth in this Section 2.12, Nortel shall not
be obligated to deliver any further information, physical embodiments or tangible materials to
Licensee or Ciena Corporation under this Agreement (such requirements being set forth in the
Asset Sale Agreement). For clarity, nothing in this Agreement will limit or relieve Nortel
from any obligation under the Asset Sale Agreement with respect to delivery of software,
Documentation or other materials. Nortel and its Affiliates shall have the right to retain a
copy of any Software or non-Patent Transferred Intellectual Property that is embodied in
written or electronic form and related documentation included in the Transferred Intellectual
Property for their use in accordance with the license grant in Section 2.07, however, all such
Software, non-Patent Transferred Intellectual Property and documentation is Confidential
Information of Licensee and shall be treated as such by Nortel and any sublicensees.






	2.13	 	Reservation of Rights; Ownership. Each Party and Ciena Corporation reserves all
rights and licenses not expressly granted in this Agreement, and nothing in this Agreement
shall be construed as implying or giving rise to any implied grant or license of any right not
expressly set forth in this Agreement. As between the Parties and Ciena Corporation, the
Licensed Intellectual Property including the Exclusively Licensed Intellectual Property is
owned or Controlled by Nortel. The Transferred Intellectual Property and the Licensee
Improvements are and shall continue to be owned exclusively by Licensee.






	2.14	 	Court Approval. As set forth in the recitals hereto, the Parties acknowledge that
certain Nortel and certain Affiliate entities are currently subject to the CCAA or chapter 11
of the U.S. Bankruptcy Code and that this Agreement is subject to approval by the CCAA Court
and the U.S. Bankruptcy Court.




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ARTICLE THREE — CONFIDENTIAL INFORMATION





	3.01	 	Any Confidential Information received by either Party pursuant to this Agreement shall be
used, disclosed, or copied only for the purposes of, and only in accordance with, this
Agreement. Each Party shall use, at a minimum, 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 Confidential Information. Without
limiting the generality of the foregoing;






	 	(a)	 	each Party shall only disclose Confidential Information to its employees or any
individual or entity which (i) has entered into a written agreement with such Party
containing obligations of confidence substantially similar to (but no less protective
of the Confidential Information than) those contained in this Agreement and (ii) has a
bona fide need to access the Confidential Information consistent with the receiving
Party’s rights under this Agreement;
	 
	 	(b)	 	neither Party shall make or have made any copies of Confidential Information
except those copies which it determines in good faith are necessary or useful to
fulfill its obligations and exercise its rights and licenses under this Agreement; and
	 
	 	(c)	 	each 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 the
disclosing Party.






	3.02	 	Exclusions. Licensee shall not be bound by obligations restricting disclosure set
forth in this Agreement with respect to any Confidential Information and Nortel shall not be
bound by obligations restricting disclosure set forth in this Agreement with respect to
Confidential Information which;






	 	(a)	 	without obligation of confidentiality was rightfully known by the recipient
prior to disclosure, as evidenced by its business records;
	 
	 	(b)	 	was lawfully in the public domain prior to its disclosure, or lawfully becomes
publicly available other than through a breach of this Agreement or any other
confidentiality obligation on behalf of any third party;
	 
	 	(c)	 	was disclosed to the recipient 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;
	 
	 	(d)	 	is independently developed by the recipient, as evidenced by its business
records; or
	 
	 	(e)	 	is disclosed when such disclosure is compelled pursuant to legal, judicial, or
administrative proceedings (including in connection with the Bankruptcy




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	 	 	 	Proceedings), or otherwise required by law, court or governmental or regulatory
authority, but solely to the extent required thereby.






	 	 	Notwithstanding the foregoing, the exclusions set forth in clauses (a) and (d) above shall
not apply to any Confidential Information of Licensee conveyed by Nortel or its Affiliates
to Licensee or its Affiliates as part of the transactions contemplated by the Asset Sale
Agreement, the EMEA Asset Sale Agreement or any of the Transaction Documents. The Party
from whom disclosure is compelled pursuant to (e) shall use reasonable efforts to advise the
other Party of any such disclosure in a timely manner prior to making any such disclosure
(so that either Party can apply for such legal protection as may be available with respect
to the confidentiality of the information which is to be disclosed), and provided that the
Party from whom such disclosure is compelled shall use reasonable efforts to apply for such
legal protection as may be available with respect to the confidentiality of the Confidential
Information which is required to be disclosed.





ARTICLE FOUR- MISCELLANEOUS PROVISIONS





	4.01	 	Term. This Agreement shall be effective during the term commencing on the Closing
Date and shall continue unless terminated by mutual agreement between the Parties. The
obligations contained in Article Three shall survive termination of this Agreement for any
reason unless otherwise agreed to by the Parties in writing.






	4.02	 	Licenses Irrevocable. Notwithstanding anything in this Agreement to the contrary,
the licenses granted by each Party hereunder shall be irrevocable and perpetual and shall
continue in full force and effect notwithstanding any material breach by a Party of any term
herein. Except as may be pursued in connection with the Asset Sale Agreement, each Party
irrevocably waives the right to seek any remedy that would involve rescission or other
termination of the licenses granted hereunder.






	4.03	 	Disclaimer of Warranties. There are no warranties, representations or conditions,
express or implied, statutory or otherwise between the Parties (which for purposes of this
Section 4.03 shall include Ciena Corporation) under this Agreement except as specifically set
forth in any of the other Transaction Documents. EACH PARTY EXPRESSLY DISCLAIMS ALL
WARRANTIES AND CONDITIONS NOT EXPRESSLY PROVIDED UNDER THE TRANSACTION DOCUMENTS, WHETHER
STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OR CONDITION OF, NON-INFRINGEMENT,
MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (EVEN IF ON NOTICE OF SUCH
PURPOSE), CUSTOM OR USAGE IN THE TRADE.
	 
	 	 	EXCEPT FOR BREACHES OF OBLIGATIONS OF CONFIDENTIALITY AND MISAPPROPRIATION OF A PARTY’S
INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INDIRECT,
OR INCIDENTAL, OR SPECIAL, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, OR ANY LOST
BUSINESS, OR LOST SAVINGS, OR LOSS OR DAMAGE TO DATA, OR LOST PROFITS, OR OTHER DAMAGES




11









 






	 	 	BASED ON (A) THE AMOUNT OF USE OF, OR THE AMOUNT OF REVENUES OR PROFITS EARNED OR OTHER
VALUE OBTAINED BY, THE USE OF ANY LICENSED INTELLECTUAL PROPERTY OR A LICENSED PRODUCT OR
SERVICE; OR (B) THE LOST REVENUES OR PROFITS OF ANY THIRD PARTY ARISING FROM ANY USE OF ANY
LICENSED INTELLECTUAL PROPERTY OR A LICENSED PRODUCT OR SERVICE, REGARDLESS OF THE CAUSE AND
WHETHER ARISING IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR
OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.






	4.05	 	Assignment or Sublicense by Nortel. Except as provided herein and in Section 2.07,
Nortel shall not have a right to assign or transfer, or to grant sublicenses under, this
Agreement, in whole or in part, without the prior written consent of Licensee.
Notwithstanding the foregoing, Nortel shall have the right to assign (or sublicense) its
rights hereunder in whole or in part, after such rights are conveyed to it under the terms
hereof, without the consent of Licensee:
	 
	 	 	(i) to the purchaser (including any subsequent purchaser) of all or substantially all of the
assets of Nortel or any of its Affiliates, provided that the purchaser shall then be
bound by the same restrictions as Nortel with respect to assigning, transferring or granting
sublicenses hereunder;
	 
	 	 	(ii) to the purchaser (including any subsequent purchaser) of any portion of the Nortel
Proposed Divestitures, provided that the field of use in which the purchaser of a portion of
the Nortel Proposed Divestiture may exercise a sublicense of rights granted to Nortel under
Section 2.07 shall be limited to the field of the business that has been sold or divested to
such purchaser and natural evolutions of such fields and no broader than the fields of each
of the relevant Nortel Proposed Divestitures as set out in Schedule 1.01 (unless such fields
are modified in accordance with Section 2.10) and natural evolutions of such fields [*];
	 
	 	 	(iii) to the purchaser (including any subsequent purchaser) of any product lines, operating
units or business divisions of Nortel (including Nortel Proposed Divestitures) belonging to
the Nortel Retained Businesses, provided that the field of use in which the purchaser of the
product lines, operating units or business divisions may exercise a sublicense of rights
granted to Nortel under Section 2.07 shall expressly exclude the Optical Field;
	 
	 	 	(iv) to the purchaser (including any subsequent purchaser) of any of the product lines,
operating units or business divisions of Nortel (including Nortel Proposed Divestitures)
belonging to the Nortel Retained Businesses, other than in accordance with Section
4.05(iii), provided that the field of use in which the purchaser of such product lines,
operating unit or business division may exercise a sublicense of rights granted to Nortel






 




			
	[*]	 	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission.
Confidential treatment has been requested with respect to the omitted portions.




12









 






	 	 	under Section 2.07 shall be limited to the products and services of the business that has
been sold or divested to such purchaser and natural evolutions of such products and services
and provided further that such right to assign or sublicense may be exercised only once by
each of Nortel and the purchaser (including any subsequent purchaser) per product line,
operating unit or business division, except where multiple product lines, operating units or
business divisions within Nortel (as of the closing of each such sale) make, develop, sell,
support or service the same product or service and Nortel sells such multiple businesses (in
which case the purchaser of each such product line, operating unit or business division may
exercise such license with respect to the relevant product and/or service sold to it);
	 
	 	 	(v) to an Affiliate of Nortel, with the right to assign or sublicense as set forth in
Sections 2.07 and 4.05; or
	 
	 	 	(vi) upon internal reorganization or restructuring of Nortel (including assumption in the
context of any bankruptcy proceedings) to a successor of Nortel;
	 
	 	 	provided that in each of (i)-(vi) above: (1) such assignee (or sublicensee) shall agree to
assume all applicable obligations of Nortel hereunder and to be subject to the terms of this
Agreement with respect to the assigned rights hereunder; and (2) in the case of an
assignment or sublicense to an Affiliate of Nortel, Nortel shall not be relieved of any of
its obligations hereunder.
	 
	4.06	 	Assignment or Sublicense by Licensee. Except as provided herein, Licensee shall not
have a right to assign or transfer, or to grant sublicenses under, this Agreement, in whole or
in part, without the prior written consent of Nortel. Notwithstanding the foregoing, Licensee
shall have the right to assign (or sublicense) its rights in whole or in part, hereunder,
without the consent of Nortel [*].






	4.07	 	Notices. All demands, notices, communications and reports provided for in this
Agreement shall be in writing and shall be sent by facsimile transmission with confirmation to
the number specified below, or personally delivered or sent by reputable overnight courier
service (delivery charges prepaid) to a Party at the address specified below, or at such
address, to the attention of such other person, and with such other copy, as the recipient
Party has specified by prior written notice to the sending Party pursuant to the provisions of
this Section.





               If to Licensee or to Ciena Corporation, as applicable, to:



Ciena Luxembourg S.a.r.l. / Ciena Corporation

1201 Winterson Road

Linthicum, Maryland 21090

Attention: David Rothenstein, General Counsel

Facsimile: +1-410-865-8001




               With copies (that shall not constitute notice) to:



Latham & Watkins LLP






 




			
	[*]	 	Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission.
Confidential treatment has been requested with respect to the omitted portions.




13









 







555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

Attention: David S. Dantzic

                 Kieran Dickinson

Facsimile: +1-202-637-2201



Stikeman Elliott LLP

5300 Commerce Court West

199 Bay Street

Toronto, Ontario M5L 1B9

Attention: Brian M. Pukier

                 Stuart McCormack

Facsimile: +1-416-947-0866




               If to Nortel, to:



Nortel Networks Limited

5945 Airport Road

Suite 360

Mississaugua, Ontario L4V 1R9

Facsimile: +1-905-863-7739

Attention: Chief Intellectual Property Officer




               with a copy to:



Nortel Networks Limited

5945 Airport Road

Suite 360

Mississaugua, Ontario L4V 1R9

Facsimile: +1-905-863-7739

Attention: Vice-President,

Mergers & Acquisitions





	 	 	Any such demand, notice, communication or report shall be deemed to have been given pursuant
to this Agreement when delivered personally, when confirmed if by facsimile transmission, or
on the business day after deposit with a reputable overnight courier service, as the case
may be.
	 
	4.08	 	Confidentiality of the Agreement. The provisions of this Agreement shall be held in
confidence by each Party and Ciena Corporation and only disclosed (i) as may be agreed to by
the other Party or Ciena Corporation, (ii) as may be required by applicable law, court or
governmental or regulatory authority, (iii) in connection with a change in control of a Party
or any of its Affiliates, the offer for sale of all or substantially all of the assets of a
Party or any of its Affiliates, or the offer for sale or divestiture of any of the product
lines, operating units, business divisions or assets of a Party or any of its Affiliates, (iv)
in connection with the Bankruptcy Proceedings or (v) as provided in Section 3.02. If
disclosure is required by any applicable laws, the Disclosing Party shall consult in




14









 






	 	 	advance with the other Party and attempt in good faith to reflect such other Party’s
concerns in the required disclosure. Neither Party shall make public statements nor issue
publicity or media releases with regard to this Agreement without the prior written approval
of the other Party, except that each Party may disclose publicly or to others the existence
and general nature of this Agreement provided that such Party does not disclose any of the
detailed terms and provisions herein.
	 
	4.09	 	Expenses. Except as otherwise expressly provided herein, all costs and expenses
(including the fees and disbursements of legal counsel, investment advisers and auditors)
incurred in connection with this Agreement and the transactions contemplated hereby shall be
paid by the Party incurring such expenses.






	4.10	 	No Third Party Beneficiaries. The Parties (which for purposes of this Section 4.10
shall include Ciena Corporation) intend that this Agreement shall not benefit or create any
right, remedy or claim under or in respect of this Agreement or any provision hereof, or cause
of action in or on behalf of any person other than the Parties hereto, their respective
successors and permitted assigns, and no person, other than the Parties hereto, their
respective successors and their permitted assigns shall be entitled to rely on the provisions
hereof in any action, suit, proceeding, hearing or other forum. This Agreement shall inure to
the benefit of and be binding upon the Parties and their respective successors and permitted
assigns.






	4.11	 	Severability. If any provision, clause, or part of this Agreement or the application
thereof under certain circumstances, is held invalid, illegal or unenforceable, by a court of
competent jurisdiction the remainder of the Agreement or the application of such provision,
clause or parts under other circumstances, shall not be affected thereby unless such
invalidity, illegality or unenforceability materially impairs the ability of the Parties to
consummate the transactions contemplated by this Agreement.






	4.12	 	Amendments. This Agreement may only be amended, modified or supplemented by a
written agreement signed by all the Parties hereto.






	 	(a)	 	No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar), nor shall such
waiver constitute a waiver or continuing waiver unless otherwise expressly provided in
writing duly executed by the Party to be bound thereby.
	 
	 	(b)	 	No failure on the part of either Party to exercise, and no delay in exercising
any right under this Agreement shall operate as a waiver of such right, nor shall any
single or partial exercise of any right preclude any other or further exercise of any
other right.






	4.13	 	Specific Performance. Subject to Section 4.02, each Party acknowledges that a breach
by such Party of any of its obligations herein may cause the other Party irreparable harm
which cannot adequately be remedied by damages in an action at law and in the event of such
breach, the other Party shall be entitled to equitable relief in the nature of an




15









 






	 	 	injunction or specific performance as well as all other remedies available at law and/or in
equity.
	 
	4.14	 	Guarantee. In order to induce Nortel to enter into this Agreement with Ciena
Luxembourg S.a.r.l., and as an essential condition of this Agreement, Ciena Corporation hereby
absolutely, unconditionally and irrevocably guarantees, as a primary obligor and not merely as
a surety, the due and punctual performance of the obligations and liabilities of Ciena
Luxembourg S.a.r.l. under this Agreement. Ciena Corporation acknowledges that it is
responsible for and assumes all risks and liabilities arising out of the use of the Licensed
Intellectual Property by Ciena Luxembourg S.a.r.l. and shall ensure that Ciena Luxembourg
S.a.r.l. complies with the terms and conditions of this Agreement. The failure of Ciena
Luxembourg S.a.r.l. to comply with any terms or obligations of this Agreement or the breach of
this Agreement by Ciena Luxembourg S.a.r.l. shall be deemed a failure or breach attributable
jointly and severally to Ciena Luxembourg S.a.r.l. and Ciena Corporation as though Ciena
Corporation had committed the act or omission of Ciena Luxembourg S.a.r.l. and shall entitle
Nortel to take action against Ciena Corporation. The obligations of Ciena Corporation
pursuant to this Section 4.14 shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of such obligations or liabilities or otherwise; provided, however,
that Ciena Corporation shall be entitled to assert any defense or right that Ciena Luxembourg
S.a.r.l. would be entitled to assert. Ciena Corporation agrees that its guarantee hereunder
shall continue to be effective or be reinstated, as the case may be, if at any time
performance of any such obligation or liability is rescinded, or must otherwise be restored by
Nortel, upon the bankruptcy or reorganization of Ciena Luxembourg S.a.r.l., Ciena Corporation,
any of its Affiliates or otherwise.






	4.15	 	Entire Agreement. This Agreement and the other the Transaction Documents set forth
the entire agreement and understanding between the Parties as to the subject matter hereof,
and merge all prior discussions between them, and neither Party hereto shall be bound by any
conditions, definitions, warranties, understandings, or representations with respect to such
subject matter other than as expressly provided herein or therein, or as duly set forth on or
subsequent to the date hereof in writing, signed by duly authorized officers of the Parties.
In the event of a conflict, between this Agreement and the Asset Sale Agreement, this
Agreement shall govern.






	4.16	 	Governing Law. Any questions, claims, disputes, remedies or matters arising from or
related to this Agreement, and any relief or remedies sought by any Parties, shall be governed
exclusively by the Laws of the State of New York without regard to the rules of conflict of
laws of the State of New York or any other jurisdiction.






	4.17	 	Jurisdiction and Venue. To the fullest extent permitted by applicable law, each
Party (i) agrees that, during the pendency of the application of the CCAA to Nortel (the “CCAA
Pendency Period”), any claim, action or proceeding by such Party seeking any relief whatsoever
arising out of, or in connection with, this Agreement or the transactions contemplated hereby
shall be brought only in the CCAA Court in the Province of Ontario, Canada and shall not be
brought, in any State or Federal court in the United




16









 






	 	 	States of America or any court in any other country, (ii) during the CCAA Pendency Period,
each Party agrees to submit to the exclusive jurisdiction of the CCAA Court for purposes of
all legal proceedings arising out of, or in connection with, this Agreement or the
transactions contemplated hereby, (iii) waives and agrees not to assert any objection that
it may now or hereafter have to the laying of the venue of any such Action brought in the
CCAA Court or any claim that any such Action brought in such a court has been brought in an
inconvenient forum, (iv) agrees that mailing of process or other papers in connection with
any such action or proceeding in the manner provided in Section 4.07 or any other manner as
may be permitted by law shall be valid and sufficient service thereof, and (v) agrees that a
final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by applicable
law. After the CCAA Pendency Period, the Parties agree to the exclusive jurisdiction of the
Superior Court of Justice of the Province of Ontario or the Federal Courts of the State of
New York in the United States of America or if necessary because of the continued bankruptcy
of NNI, the U.S. Bankruptcy Court, to the extent of the involvement of NNI.
	 
	4.18	 	VAT. Where anything under this agreement gives rise to a supply for VAT (as that
term is defined in the EMEA Asset Sale Agreement) purposes, on which VAT is due, the recipient
of such supply shall, in addition to any consideration due for such supply under this
Agreement or otherwise, (x) pay to the supplier an amount equal to any VAT chargeable thereon
on receipt of a valid VAT invoice; or if relevant, (y) account for any VAT chargeable thereon
to the appropriate tax authority.






	4.19	 	Waiver of Right to Trial by Jury. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT,
ANY TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH PARTY (I)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTION DOCUMENTS, AS APPLICABLE, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.19.






	4.20	 	Counterparts. The Parties may execute this Agreement in two or more counterparts (no
one of which need contain the signatures of all Parties), each of which will be an original
and all of which together will constitute one and the same instrument.






	4.21	 	Construction. (a) Words in the singular shall include the plural and vice versa, and
words of one gender shall include the other genders as the context requires, (b) the terms
“hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated,
be construed to refer to this Agreement and not to any particular provision of this




17









 






	 	 	Agreement, and Article and Section references are to the Articles and Sections to this
Agreement unless otherwise specified and (c) the word “including” and words of similar
import when used in this Agreement shall mean “including, without limitation,” unless
otherwise specified.
	 
	4.22	 	Headings. The headings used in this Agreement are for the purpose of reference only
and shall not affect the meaning or interpretation of any provision of this Agreement.





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SIGNATURE PAGE FOLLOWS]









18









 








     IN WITNESS WHEREOF, the Parties hereto have signed and executed this Intellectual Property
License Agreement on the date first above mentioned.



	 	 	 	 	 

	Nortel Networks Limited	 	 
	 
	 	 	 	 
	By:

	 	/s/ Paviter S. Binning	 	 
	 

	 	 	 	 
	Name:

	 	Paviter S. Binning	 	 
	Title:

	 	Executive Vice President, Chief Financial
	 	 
	 

	 	Officer and Chief Restructuring Officer	 	 
	Date:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	By:

	 	/s/ Anna Ventresca	 	 
	 

	 	 	 	 
	Name:

	 	Anna Ventresca	 	 
	Title:

	 	General Counsel – Corporate and	 	 
	 

	 	Corporate Secretary	 	 
	Date:
	 	 	 	 
	 

	 	 	 	 





[Signatures continue of the following page]




[Signature Page to Intellectual Property License Agreement]






 









 








	 	 	 	 	 

	Ciena Luxembourg S.a.r.l.	 	 
	 
	 	 	 	 
	By:

	 	/s/ David M. Rothenstein
	 	 
	 

	 	 	 	 
	Name:

	 	David M. Rothenstein	 	 
	Title:

	 	Type A Member	 	 
	 
	 	 	 	 
	Ciena Corporation (only with respect to
the sections of the      Agreement in which it is
expressly named)	 	 
	 
	 	 	 	 
	By:

	 	/s/ David M. Rothenstein	 	 
	 

	 	 	 	 
	Name:

	 	David M. Rothenstein	 	 
	Title:

	 	Senior Vice President, General
Counsel and Secretary	 	 






[Signature Page to Intellectual Property License Agreement]