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EXHIBIT 2.10
MASTER CONFIDENTIAL DISCLOSURE AGREEMENT
BETWEEN
MRV COMMUNICATIONS, INC.
AND
OPTICAL ACCESS, INC.
EFFECTIVE AS OF SEPTEMBER 29, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS.......................................................................1
Section 1.1 ANCILLARY AGREEMENTS...................................................1
Section 1.2 CONFIDENTIAL INFORMATION...............................................1
Section 1.3 CONFIDENTIALITY PERIOD.................................................2
Section 1.4 DISCLOSING PARTY.......................................................2
Section 1.5 HIGHLY CONFIDENTIAL INFORMATION........................................2
Section 1.6 MASTER SEPARATION AGREEMENT............................................2
Section 1.7 PERSON.................................................................2
Section 1.8 RECEIVING PARTY........................................................2
Section 1.9 SEPARATION DATE........................................................2
Section 1.10 SUBSIDIARY.............................................................2
Section 1.11 THIRD PARTY............................................................3
Section 1.12 TRANSACTION AGREEMENTS.................................................3
ARTICLE 2 CONFIDENTIALITY...................................................................3
Section 2.1 CONFIDENTIALITY AND NON-USE OBLIGATIONS................................3
Section 2.2 DISCLOSURE TO SUBLICENSEES.............................................3
Section 2.3 CONTRACT MANUFACTURERS AND FOUNDRIES...................................3
Section 2.4 RESIDUALS..............................................................3
Section 2.5 COMPELLED DISCLOSURE...................................................3
Section 2.6 NO RESTRICTION ON DISCLOSING PARTY.....................................4
Section 2.7 NO RESTRICTION ON REASSIGNMENT.........................................4
Section 2.8 THIRD PARTY RESTRICTIONS...............................................4
ARTICLE 3 WARRANTY DISCLAIMER...............................................................4
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ARTICLE 4 CONFIDENTIALITY OF AGREEMENT......................................................4
ARTICLE 5 TERM AND TERMINATION..............................................................5
Section 5.1 TERM...................................................................5
Section 5.2 SURVIVAL...............................................................5
ARTICLE 6 DISPUTE RESOLUTION................................................................5
Section 6.1 MEDIATION..............................................................5
Section 6.2 ARBITRATION............................................................5
Section 6.3 COURT ACTION...........................................................6
Section 6.4 CONTINUITY OF SERVICE AND PERFORMANCE..................................6
ARTICLE 7 MISCELLANEOUS PROVISIONS..........................................................6
Section 7.1 EXPORT RESTRICTIONS....................................................6
Section 7.2 NO IMPLIED LICENSES....................................................6
Section 7.3 INFRINGEMENT SUITS.....................................................6
Section 7.4 NO OTHER OBLIGATIONS...................................................6
Section 7.5 ENTIRE AGREEMENT.......................................................6
Section 7.6 GOVERNING LAW..........................................................7
Section 7.7 INTERPRETATION.........................................................7
Section 7.8 NOTICES................................................................7
Section 7.9 NONASSIGNABILITY.......................................................7
Section 7.10 SEVERABILITY...........................................................8
Section 7.11 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE..................8
Section 7.12 AMENDMENT..............................................................8
Section 7.13 COUNTERPARTS...........................................................8
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MASTER CONFIDENTIAL DISCLOSURE AGREEMENT
This Master Confidential Disclosure Agreement (the "Agreement") is
effective as of September 29, 2000 (the "Effective Date"), between MRV
Communications, Inc., a Delaware corporation ("MRV"), having an office at 00000
Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx, 00000 and Optical Access, Inc., a
Delaware corporation ("Optical Access"), having an office at 00000 Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx, 00000.
WHEREAS, the Board of Directors of MRV has determined that it is in the
best interest of MRV and its stockholders to separate MRV's existing businesses
into two independent businesses;
WHEREAS, as part of the foregoing, MRV and Optical Access entered into a
Master Separation Agreement (as defined below), which provides, among other
things, for the separation of certain Optical Access assets and Optical Access
liabilities, the initial public offering of Optical Access 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:
Section 1.1 ANCILLARY AGREEMENTS. Ancillary Agreements means the items and
agreements listed in Section 2.1 of the Master Separation Agreement and all
agreements and documents contemplated by such agreements.
Section 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 Separation Date. Confidential Information may include information relating
to, by way of example, research, products, services, customers, markets,
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.
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(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.
Section 1.3 CONFIDENTIALITY PERIOD. Confidentiality Period means, (a) with
respect to Confidential Information that is not Highly Confidential Information,
five (5) years, and (b) with respect to Highly Confidential Information, in
perpetuity, after either (i) 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 (ii) the date of disclosure with
respect to Confidential Information that is disclosed by the Disclosing Party to
the Receiving Party after the Separation Date.
Section 1.4 DISCLOSING PARTY. Disclosing Party means the party owning or
disclosing the relevant Confidential Information.
Section 1.5 HIGHLY CONFIDENTIAL INFORMATION. Highly Confidential Information
means Confidential Information that is integral to products that are
commercially released or for which substantial steps have been taken to
commercialization.
Section 1.6 MASTER SEPARATION AGREEMENT. Master Separation Agreement means that
certain Master Separation Agreement between MRV and Optical Access.
Section 1.7 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.
Section 1.8 RECEIVING PARTY. Receiving Party means the non-owning party or
recipient of the relevant Confidential Information.
Section 1.9 SEPARATION DATE. Separation Date means 12:01 a.m., Pacific Time,
October 31, 2000, or such other date as may be fixed by the Board of Directors
of MRV.
Section 1.10 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
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right, power or ability to control, that Person. For purposes of this Agreement,
Optical Access shall be deemed not to be a subsidiary of MRV.
Section 1.11 THIRD PARTY. Third Party means a Person other than MRV and its
Subsidiaries and Optical Access and its Subsidiaries.
Section 1.12 TRANSACTION AGREEMENTS. Transaction Agreements mean the Master
Separation Agreement and the Ancillary Agreements.
ARTICLE 2
CONFIDENTIALITY
Section 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.
Section 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.
Section 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.
Section 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.
Section 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)
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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.
Section 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.
Section 2.7 NO RESTRICTION ON REASSIGNMENT. This Agreement shall not restrict
reassignment of the Receiving Party's employees.
Section 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 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.
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ARTICLE 5
TERM AND TERMINATION
Section 5.1 TERM. This Agreement shall remain in full force and effect unless
and until terminated by the mutual written agreement of the parties.
Section 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
Section 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 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.
Section 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 Los Angeles 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.
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Section 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.
Section 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
Section 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.
Section 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.
Section 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.
Section 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.
Section 7.5 ENTIRE AGREEMENT. This Agreement, the Master Separation 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.
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Section 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 Los Angeles County and/or the United States District Court for the Central
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.
Section 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.
Section 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 MRV:
MRV Communications, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx, Chief Executive Officer
Fax: 000-000-0000
if to Optical Access:
Optical Access, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx, Chief Executive Officer
Fax: 818-____-______
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.
Section 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
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Agreement will be binding upon and inure to the benefit of the parties and their
permitted successors and assigns.
Section 7.10 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.
Section 7.11 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.
Section 7.12 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.
Section 7.13 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.
[REST OF PAGE INTENTIONALLY LEFT BLANK.]
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WHEREFORE, the parties have signed this Master Confidential Disclosure
Agreement effective as of the date first set forth above.
MRV COMMUNICATIONS, INC.,
a Delaware corporation
By:
-----------------------------------
Xxxx Xxxxx, Chief Executive Officer
OPTICAL ACCESS, INC.,
a Delaware corporation
By:
-----------------------------------
Xxx Xxxxxx, Chief Executive Officer
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