EXHIBIT 2.10
MASTER CONFIDENTIAL DISCLOSURE AGREEMENT
between
3COM CORPORATION
and
PALM, INC.
Effective as of ______, 2000
MASTER CONFIDENTIAL DISCLOSURE AGREEMENT
This Master Confidential Disclosure Agreement (the "Agreement") is
effective as of ________, 2000 (the "Effective Date"), between 3Com Corporation,
a Delaware corporation ("3Com"), having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and Palm, Inc., a Delaware corporation ("Palm"), having
an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
WHEREAS, the Board of Directors of 3Com has determined that it is in the
best interest of 3Com and its stockholders to separate 3Com's existing
businesses into two independent businesses;
WHEREAS, as part of the foregoing, 3Com and Palm's predecessor, Palm
Computing, Inc., a California Corporation, have entered into a Master Separation
and Distribution Agreement (as defined below), which provides, among other
things, for the separation of certain Palm assets and Palm liabilities, the
initial public offering of Palm stock, the distribution of such stock, and the
execution and delivery of certain other agreements in order to facilitate and
provide for the foregoing; and
WHEREAS, also as part of the foregoing, the parties further desire to enter
into this Agreement to provide for the protection of their Confidential
Information (as defined below).
NOW, THEREFORE, in consideration of the mutual promises of the parties, and
of good and valuable consideration, it is agreed by and between the parties as
follows:
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement the following capitalized terms are
defined in this Article 1 and shall have the meaning specified herein:
1.1 ANCILLARY AGREEMENTS. "Ancillary Agreements" means the items and
agreements listed in Section 2.1 of the Master Separation and Distribution
Agreement and all agreements and documents contemplated by such agreements.
1.2 CONFIDENTIAL INFORMATION.
(a) "Confidential Information" means business information, technical
data, know-how and other information which is not otherwise in the public domain
and of which the owner actively undertakes to restrict or control the disclosure
to Third Parties in a manner reasonably intended to maintain its
confidentiality, and which (i) the Disclosing Party disclosed to the Receiving
Party or the Receiving Party had access to on or before the Separation Date,
(ii) is the subject of any Transaction Agreement and known to or in the
possession of the Receiving Party as of the Separation Date or (iii) is
disclosed to the Receiving Party pursuant to any Transaction Agreement for a
period of one (1) year after the Effective Date. Confidential Information may
include information relating to, by way of example, research, products,
services, customers, markets,
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software, developments, inventions, processes, designs, drawings, engineering,
marketing or finances, and may be in writing, disclosed orally or learned by
inspection of computer programming code, equipment or facilities.
(b) Confidential Information of Third Parties that is known to, in
the possession of or acquired by a Receiving Party pursuant to a relationship
with the Disclosing Party shall be deemed the Disclosing Party's Confidential
Information for purposes herein.
(c) Notwithstanding the foregoing provisions of this Section 1.2,
Confidential Information shall exclude information that: (i) was in the
Receiving Party's possession before receipt from the Disclosing Party and
obtained from a source other than the Disclosing Party and other than through
the prior relationship of the Disclosing Party and the Receiving Party before
the Separation Date; (ii) is or becomes a matter of public knowledge through no
fault of the Receiving Party; (iii) is rightfully received by the Receiving
Party from a Third Party without a duty of confidentiality; (iv) is disclosed by
the Disclosing Party to a Third Party without a duty of confidentiality on the
Third Party; (v) is independently developed by the Receiving Party; or (vi) is
disclosed by the Receiving Party with the Disclosing Party's prior written
approval.
1.3 CONFIDENTIALITY PERIOD. "Confidentiality Period" means, (i) with
respect to Confidential Information that is not Highly Confidential Information,
five (5) years, and (ii) with respect to Highly Confidential Information, in
perpetuity, after either (A) the Separation Date with respect to Confidential
Information of the Disclosing Party that is known to or in the possession of the
Receiving Party as of the Separation Date or (B) the date of disclosure with
respect to Confidential Information that is disclosed by the Disclosing Party to
the Receiving Party after the Separation Date.
1.4 DISCLOSING PARTY. "Disclosing Party" means the party owning or
disclosing the relevant Confidential Information.
1.5 DISTRIBUTION DATE. "Distribution Date" has the meaning set forth in
the Master Separation and Distribution Agreement.
1.6 HIGHLY CONFIDENTIAL INFORMATION. "Highly Confidential Information"
means Confidential Information that is source code for products that are
commercially released or for which substantial steps have been taken to
commercialization.
1.7 MASTER SEPARATION AND DISTRIBUTION AGREEMENT. "Master Separation and
Distribution Agreement" means that certain Master Separation and Distribution
Agreement between 3Com and Palm.
1.8 PERSON. "Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, and a governmental entity or any
department, agency or political subdivision thereof.
1.9 RECEIVING PARTY. "Receiving Party" means the non-owning party or
recipient of the relevant Confidential Information.
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1.10 SEPARATION DATE. "Separation Date" means 12:01 a.m., Pacific Time,
February 26, 2000, or such other date as may be fixed by the Board of Directors
of 3Com.
1.11 SUBSIDIARY. "Subsidiary" of any Person means a corporation or other
organization, whether incorporated or unincorporated, of which at least a
majority of the securities or interests having by the terms thereof ordinary
voting power to elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such Person or by
any one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries; provided, however, that no Person that is not directly or
indirectly wholly-owned by any other Person shall be a Subsidiary of such other
Person unless such other Person controls, or has the right, power or ability to
control, that Person. For purposes of this Agreement, Palm shall be deemed not
to be a subsidiary of 3Com.
1.12 THIRD PARTY. "Third Party" means a Person other than 3Com and its
Subsidiaries and Palm and its Subsidiaries.
1.13 TRANSACTION AGREEMENTS. "Transaction Agreements" mean the Master
Separation and Distribution Agreement and the Ancillary Agreements.
ARTICLE 2
CONFIDENTIALITY
2.1 CONFIDENTIALITY AND NON-USE OBLIGATIONS. During the Confidentiality
Period, the Receiving Party shall (i) protect the Confidential Information of
the Disclosing Party by using the same degree of care, but no less than a
reasonable degree of care, to prevent the unauthorized use, dissemination, or
publication of the Confidential Information as Receiving Party uses to protect
its own confidential information of a like nature, (ii) not use such
Confidential Information in violation of any use restriction in any Transaction
Agreement, and (iii) not disclose such Confidential Information to any Third
Party, except as expressly permitted under this Agreement, in the Transaction
Agreements or in any other agreements entered into between the parties in
writing, without prior written consent of the Disclosing Party.
2.2 DISCLOSURE TO SUBLICENSEES. The Receiving Party has the right to
disclose to its sublicensees permitted under a Transaction Agreement portions of
Confidential Information as reasonably necessary in the exercise of the
Receiving Party's sublicense rights under such Transaction Agreement, subject to
the sublicensee's agreement in writing to confidentiality and non-use terms at
least as protective of the Disclosing Party as the provisions of this Agreement.
2.3 CONTRACT MANUFACTURERS AND FOUNDRIES. The Receiving Party has the
right to disclose to its contract manufacturers and foundries permitted under
any Transaction Agreement portions of the Confidential Information as reasonably
necessary in the exercise of the Receiving Party's "have made" rights under any
Transaction Agreement, subject to the contract manufacturer's and foundry's
agreement in writing to confidentiality and non-use terms at least as protective
of the Disclosing Party as the provisions of this Agreement.
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2.4 RESIDUALS. Notwithstanding any other provision of this Agreement, the
Receiving Party shall be free, and the Disclosing Party hereby grants to the
Receiving Party, except as otherwise provided in this Section 2.4, the right, to
use or exploit for any purpose and without restriction the Residuals resulting
from access to or work with the Confidential Information of the Disclosing
Party. "Residuals" means information retained in the unaided memory of an
individual who has had access to Confidential Information. The Receiving Party
shall have no obligation to pay royalties for any use of Residuals. However,
this Section 2.4 does not grant the Receiving Party any rights under any patents
or copyrights of the Disclosing Party.
2.5 COMPELLED DISCLOSURE. If the Receiving Party or any of its respective
Subsidiaries believes that it will be compelled by a court or other authority to
disclose Confidential Information of the Disclosing Party, it shall (i) give the
Disclosing Party prompt written notice so that the Disclosing Party may take
steps to oppose such disclosure, and (ii) cooperate with the Disclosing Party in
its attempts to oppose such disclosure. If the Receiving Party complies with the
above, it shall not be prohibited from complying with such requirement to
disclose, but shall take all reasonable steps to make such disclosure subject to
a suitable protective order or otherwise prevent unrestricted or public
disclosure.
2.6 NO RESTRICTION ON DISCLOSING PARTY. Nothing in this Agreement shall
restrict the Disclosing Party from using, disclosing, or disseminating its own
Confidential Information in any way.
2.7 NO RESTRICTION ON REASSIGNMENT. This Agreement shall not restrict
reassignment of the Receiving Party's employees.
2.8 THIRD PARTY RESTRICTIONS. Nothing in the Agreement supersedes any
restriction imposed by Third Parties on their Confidential Information, and
there is no obligation on the Disclosing Party to conform Third Party agreements
to the terms of this Agreement.
ARTICLE 3
WARRANTY DISCLAIMER
EACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS
PROVIDED ON AN "AS IS, WHERE IS" BASIS AND THAT NEITHER PARTY NOR ANY OF ITS
SUBSIDIARIES HAS MADE OR WILL MAKE ANY WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY OR NON-
INFRINGEMENT.
ARTICLE 4
CONFIDENTIALITY OF AGREEMENT
Each party agrees that the terms and conditions of the Transaction
Agreements marked as confidential shall be treated as Confidential Information
and that neither party will disclose such
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terms or conditions to any Third Party without the prior written consent of the
other party, provided, however, that each party may disclose such terms and
conditions of such agreements marked as confidential:
(a) as required by any court or other governmental body (subject to
Section 2.5);
(b) as otherwise required by law (subject to Section 2.5);
(c) in confidence, to legal counsel of the parties, accountants, and
other professional advisors;
(d) in confidence to banks, investors and other financing sources and
their advisors;
(e) in connection with the enforcement of this Agreement or rights
under this Agreement; or
(f) in confidence, in connection with an actual or prospective merger
or acquisition or similar transaction.
ARTICLE 5
TERM AND TERMINATION
5.1 TERM. This Agreement shall remain in full force and effect unless and
until terminated by the mutual written agreement of the parties.
5.2 SURVIVAL. Articles 2 (with respect to Confidential Information
acquired or disclosed prior to the date of termination), 3, 4, 6, 7 and 8 shall
survive any termination of this Agreement.
ARTICLE 6
DISPUTE RESOLUTION
6.1 MEDIATION. If a dispute, controversy or claim ("Dispute") arises
between the parties relating to the interpretation or performance of this
Agreement or the grounds for the termination hereof, appropriate senior
executives (e.g. director or V.P. level) of each party who shall have the
authority to resolve the matter shall meet to attempt in good faith to negotiate
a resolution of the Dispute prior to pursuing other available remedies. The
initial meeting between the appropriate senior executives shall be referred to
herein as the "Dispute Resolution Commencement Date." Discussions and
correspondence relating to trying to resolve such Dispute shall be treated as
confidential information developed for the purpose of settlement and shall be
exempt from discovery or production and shall not be admissible. If the senior
executives are unable to resolve the Dispute within thirty (30) days from the
Dispute Resolution Commencement Date, and either party wishes to pursue its
rights relating to such Dispute, then the Dispute will be mediated by a mutually
acceptable
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mediator appointed pursuant to the mediation rules of JAMS/Endispute within
thirty (30) days after written notice by one party to the other demanding non-
binding mediation. Neither party may unreasonably withhold consent to the
selection of a mediator or the location of the mediation. Both parties will
share the costs of the mediation equally, except that each party shall bear its
own costs and expenses, including attorney's fees, witness fees, travel
expenses, and preparation costs. The parties may also agree to replace mediation
with some other form of non-binding or binding ADR.
6.2 ARBITRATION. Any Dispute which the parties cannot resolve through
mediation within ninety (90) days of the Dispute Resolution Commencement Date,
unless otherwise mutually agreed, shall be submitted to final and binding
arbitration under the then current Commercial Arbitration Rules of the American
Arbitration Association ("AAA"), by three (3) arbitrators in Santa ▇▇▇▇▇ County,
California. Such arbitrators shall be selected by the mutual agreement of the
parties or, failing such agreement, shall be selected according to the aforesaid
AAA rules. The arbitrators will be instructed to prepare and deliver a written,
reasoned opinion stating their decision within thirty (30) days of the
completion of the arbitration. The prevailing party in such arbitration shall
be entitled to expenses, including costs and reasonable attorneys' and other
professional fees, incurred in connection with the arbitration (but excluding
any costs and fees associated with prior negotiation or mediation). The
decision of the arbitrator shall be final and non-appealable and may be enforced
in any court of competent jurisdiction. The use of any ADR procedures will not
be construed under the doctrine of laches, waiver or estoppel to adversely
affect the rights of either party.
6.3 COURT ACTION. Any Dispute regarding the following is not required to
be negotiated, mediated or arbitrated prior to seeking relief from a court of
competent jurisdiction: breach of any obligation of confidentiality;
infringement, misappropriation, or misuse of any intellectual property right;
any other claim where interim relief from the court is sought to prevent serious
and irreparable injury to one of the parties or to others. However, the parties
to the Dispute shall make a good faith effort to negotiate and mediate such
Dispute, according to the above procedures, while such court action is pending.
6.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in
writing, the parties will continue to provide service and honor all other
commitments under this Agreement and each Ancillary Agreement during the course
of dispute resolution pursuant to the provisions of this Article 6 with respect
to all matters not subject to such dispute, controversy or claim..
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 EXPORT RESTRICTIONS. Both parties shall adhere to all applicable laws,
regulations and rules relating to the export of technical data, and shall not
export or reexport any technical data, any products received from Disclosing
Party, or the direct product of such technical data, to any proscribed country
listed in such applicable laws, regulations and rules unless properly
authorized.
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7.2 NO IMPLIED LICENSES. Nothing contained in this Agreement shall be
construed as conferring any rights by implication, estoppel or otherwise, under
any intellectual property right, other than the rights expressly granted in this
Agreement with respect to Confidential Information. Neither party is required
hereunder to furnish or disclose to the other any technical or other
information.
7.3 INFRINGEMENT SUITS. Neither party shall have any obligation hereunder
to institute any action or suit against Third Parties for misappropriation of
any of its Confidential Information or to defend any action or suit brought by a
Third Party that alleges infringement of any intellectual property rights by the
Receiving Party's authorized use of the Disclosing Party's Confidential
Information.
7.4 NO OTHER OBLIGATIONS. NEITHER PARTY ASSUMES ANY RESPONSIBILITIES OR
OBLIGATIONS WHATSOEVER, OTHER THAN THE RESPONSIBILITIES AND OBLIGATIONS
EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN AGREEMENT BETWEEN
THE PARTIES.
7.5 ENTIRE AGREEMENT. This Agreement, the Master Separation and
Distribution Agreement and the other Ancillary Agreements and the Exhibits and
Schedules referenced or attached hereto and thereto constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and shall supersede all prior written and oral and all contemporaneous
oral agreements and understandings with respect to the subject matter hereof and
thereof. Notwithstanding the foregoing, the parties agree that any agreements
entered into between them on or after the Separation Date for the protection of
specific Confidential Information shall supersede the terms of this Agreement
with respect to such Confidential Information.
7.6 GOVERNING LAW. This Agreement shall be construed in accordance with
and all Disputes hereunder shall be governed by the laws of the State of
California, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods. The Superior Court
of Santa ▇▇▇▇▇ County and/or the United States District Court for the Northern
District of California shall have jurisdiction and venue over all Disputes
between the parties that are permitted to be brought in a court of law pursuant
to Section 6 above.
7.7 INTERPRETATION. The headings contained in this Agreement, in any
Exhibit hereto and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Any capitalized term used in any Exhibit but not otherwise
defined therein, shall have the meaning assigned to such term in this Agreement.
When a reference is made in this Agreement to an Article or a Section or an
Exhibit, such reference shall be to an Article or Section of, or an Exhibit to,
this Agreement unless otherwise indicated.
7.8 NOTICES. Notices, offers, requests or other communications required or
permitted to be given by either party pursuant to the terms of this Agreement
shall be given in writing to the respective parties to the following addresses:
if to 3Com :
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3Com Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Palm:
Palm, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also
be sent by fax, confirmed by first class mail. All notices shall be deemed to
have been given and received on the earlier of actual delivery or three (3) days
from the date of postmark.
7.9 NONASSIGNABILITY. Neither party may, directly or indirectly, in whole
or in part, whether by operation of law or otherwise, assign or transfer this
Agreement, without the other party's prior written consent, and any attempted
assignment, transfer or delegation without such prior written consent shall be
voidable at the sole option of such other party. Notwithstanding the foregoing,
each party (or its permitted successive assignees or transferees hereunder) may
assign or transfer this Agreement as a whole without consent to a Person that
succeeds to all or substantially all of the business or assets of such party as
long as such Person agrees to accept all the terms and conditions set forth
herein. Without limiting the foregoing, this Agreement will be binding upon and
inure to the benefit of the parties and their permitted successors and assigns.
7.11 SEVERABILITY. If any term or other provision of this Agreement or the
Exhibits attached hereto is determined by a court, administrative agency or
arbitrator to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to either party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the fullest extent possible.
7.12 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of either party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty or agreement herein, nor shall any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under this
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Agreement or the Exhibits attached hereto are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
7.13 AMENDMENT. No change or amendment will be made to this Agreement or
the Exhibits attached hereto except by an instrument in writing signed on behalf
of each of the parties to such agreement.
7.14 COUNTERPARTS. This Agreement, including the Ancillary Agreements and
the Exhibits and Schedules hereto and thereto and the other documents referred
to herein or therein, may be executed in counterparts, each of which shall be
deemed to be an original but all of which shall constitute one and the same
agreement.
WHEREFORE, the parties have signed this Master Confidential Disclosure
Agreement effective as of the date first set forth above.
3COM CORPORATION PALM, INC.
By:_____________________________ By:__________________________________
Name:___________________________ Name:________________________________
Title:__________________________ Title:_______________________________
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