MASTER CONFIDENTIAL DISCLOSURE AGREEMENT
BETWEEN
3COM CORPORATION
AND
PALM, INC.
EFFECTIVE AS OF FEBRUARY 26, 2000
MASTER CONFIDENTIAL DISCLOSURE AGREEMENT
This Master Confidential Disclosure Agreement (the "Agreement") is
effective as of February 26, 2000 (the "Effective Date"), between 3Com
Corporation, a Delaware corporation ("3Com"), having an office at 5400
Bayfront Plaza, Santa Clara, California, 95052 and Palm, Inc., a Delaware
corporation ("Palm"), having an office at 5470 Great America Parkway, Santa
Clara, California, 95052.
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 Clara 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 Clara 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
5400 Bayfront Plaza
Santa Clara, California 95052
Attention: General Counsel
Fax: (408) 326-6434
if to Palm:
Palm, Inc.
5470 Great America Parkway
Santa Clara, California 95052
Attention: General Counsel
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 Agreement or the Exhibits attached hereto are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
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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.
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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:
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Name: Name:
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Title: Title:
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