EXHIBIT 2.9
Real Estate Matters Agreement
between
3COM CORPORATION
and
PALM, INC.
_______________, 2000
TABLE OF CONTENTS
Page
----
ARTICLE I PROPERTY........................................................... 1
Section 1.1 Leased Property............................................. 1
Section 1.2 Shared Properties........................................... 1
Section 1.3 Headquarters Facility....................................... 2
Section 1.4 Obtaining the Lease Consents................................ 2
Section 1.5 Occupation by Palm.......................................... 3
Section 1.6 Obligation to Complete...................................... 4
Section 1.7 Form of Transfer............................................ 5
Section 1.8 Casualty; Lease Termination................................. 6
Section 1.9 Tenant's Fixtures and Fittings.............................. 6
Section 1.10 Costs....................................................... 6
ARTICLE II MISCELLANEOUS..................................................... 7
Section 2.1 Limitation of Liability..................................... 7
Section 2.2 Entire Agreement............................................ 7
Section 2.3 Governing Law............................................... 7
Section 2.4 Notices..................................................... 7
Section 2.5 Counterparts................................................ 9
Section 2.6 Binding Effect; Assignment.................................. 9
Section 2.7 Severability................................................ 9
Section 2.8 Failure or Indulgence Not Waiver; Remedies Cumulative....... 9
Section 2.9 Amendment................................................... 10
Section 2.10 Authority................................................... 10
Section 2.11 Interpretation.............................................. 10
Section 2.12 Disputes.................................................... 10
ARTICLE III DEFINITIONS...................................................... 10
-2-
REAL ESTATE MATTERS AGREEMENT
This Real Estate Matters Agreement (this "Agreement") is entered into on
__________, 2000 between 3Com Corporation, a Delaware corporation ("3Com"), and
Palm, Inc., a Delaware corporation ("Palm"). Capitalized terms used herein and
not otherwise defined herein shall have the meanings ascribed to such terms in
the Separation Agreement (as defined below).
RECITALS
WHEREAS, 3Com has transferred or will transfer to Palm effective as of the
Separation Date, substantially all of the business and assets of the Palm
Business owned by 3Com in accordance with the Master Separation and Distribution
Agreement dated as of December ___, 1999 between 3Com and Palm's predecessor
corporation, Palm Computing, Inc., a California corporation (the "Separation
Agreement").
WHEREAS, the parties desire to set forth certain agreements regarding real
estate matters.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
PROPERTY
Section 1.1 Leased Property
(a) 3Com shall assign or cause its applicable Subsidiary to assign, and
Palm shall accept and assume, or cause its applicable Subsidiary to accept and
assume, 3Com's or its Subsidiary's interest in the Leased Properties, subject to
the other provisions of this Agreement and (to the extent not inconsistent with
the provisions of this Agreement) the terms of the Separation Agreement and the
other Ancillary Agreements. Such assignment shall be completed on the later of:
(i) the Separation Date; and (ii) the earlier of (A) the fifth (5/th/) business
day after the relevant Lease Consent has been granted and (B) the date agreed
upon by the parties in accordance with Section 1.6(a) below.
(b) Subject to the completion of the assignment to Palm or its applicable
Subsidiary of the relevant Leased Property, with respect to each Leased Property
which is also a Shared Property, Palm shall grant or cause its applicable
Subsidiary to grant to 3Com or its applicable Subsidiary a license to occupy
that part of the relevant Leased Property identified in Section A of Schedule 1
of this Agreement and 3Com shall accept or cause its applicable Subsidiary to
accept the same. Such license shall be completed immediately following
completion of the transfer of the relevant Leased Property to Palm or its
applicable Subsidiary.
Section 1.2 Shared Properties
3Com shall grant or cause its applicable Subsidiary to grant to Palm or its
applicable Subsidiary a license to occupy those parts of the Shared Properties
identified in Section B of Schedule 1 of this Agreement and Palm shall accept or
cause its applicable Subsidiary to accept the
same, subject to the other provisions of this Agreement and (to the extent not
inconsistent with the provisions of this Agreement) the terms of the Separation
Agreement and the other Ancillary Agreements. Such license shall be completed on
the Separation Date.
Section 1.3 Headquarters Facility
3Com shall grant to Palm a lease of those parts of the Headquarters
Facility identified in Section C of Schedule 1 of this Agreement as leased and a
sublease of those parts of the Headquarters Facility identified in Section C of
Schedule 1 of this Agreement as subleased, and Palm shall accept the same,
subject to the other provisions of this Agreement and (to the extent not
inconsistent with the provisions of this Agreement) the terms of the Separation
Agreement and the other Ancillary Agreements. Such lease and sublease shall be
completed on the Separation Date.
Section 1.4 Obtaining the Lease Consents
(a) 3Com confirms that, with respect to each Leased Property, an
application has been made or will be made by the Separation Date to the relevant
Landlord for the Lease Consents required with respect to the transactions
contemplated by this Agreement.
(b) 3Com will use its reasonable commercial efforts to obtain the Lease
Consents as to each Leased Property, but 3Com shall not be required to commence
judicial proceedings for a declaration that a Lease Consent has been
unreasonably withheld or delayed, nor shall 3Com be required to pay any
consideration in excess of that required by the Relevant Lease or that which is
typical in the open market to obtain the relevant Lease Consent. Palm shall
cooperate as reasonably requested by 3Com to obtain the Lease Consents.
(c) Palm and 3Com will promptly satisfy or cause their applicable
Subsidiaries to satisfy the lawful requirements of the Landlord, and Palm will
take or cause its applicable Subsidiary to take all steps to assist 3Com in
obtaining the Lease Consents as to each Leased Property, including, without
limitation:
(i) if properly required by the Landlord, entering into an agreement
with the relevant Landlord to observe and perform the tenant's obligations
contained in the Relevant Lease throughout the remainder of the term of the
Relevant Lease, subject to any statutory limitations of such liability;
(ii) if properly required by the Landlord, providing a guarantee,
surety or other security (including, without limitation, a security deposit) for
the obligations of Palm or its applicable Subsidiary as tenant under the
Relevant Lease, and otherwise taking all steps which are reasonably necessary
and which Palm or its applicable Subsidiary is reasonably capable of doing to
meet the lawful requirements of the Landlord so as to ensure that the Lease
Consents are obtained; and
(iii) using all reasonable commercial efforts to assist 3Com with
obtaining the Landlord's consent to the release of any guarantee, surety or
other security which 3Com or its Subsidiary may have previously provided to the
Landlord and, if required, offering the same or equivalent security to the
Landlord in order to obtain such release.
Notwithstanding the foregoing, (1) except with respect to guarantees, sureties
or other security referenced in Section 1.4(c)(ii) above, Palm shall not be
required to obtain a release of any obligation entered into by 3Com or its
Subsidiary with any Landlord or other third party with respect to any Property
and (2) Palm shall not communicate or permit its applicable Subsidiary to
communicate directly with any of the Landlords unless Palm can show 3Com
reasonable grounds for doing so.
(d) If, with respect to any Leased Properties, 3Com and Palm are unable to
obtain a release by the Landlord of any guarantee, surety or other security
which 3Com or its Subsidiary has previously provided to the Landlord, Palm shall
indemnify, defend, protect and hold harmless 3Com and its Subsidiary from and
after the Separation Date against all losses, costs, claims, damages, or
liabilities incurred by 3Com or its Subsidiary as a result of Palm's occupancy
of the Leased Property with respect to such guarantee, surety or other security.
Section 1.5 Occupation by Palm
(a) Subject to compliance with Section 1.5(b) below, in the event that the
Actual Completion Date for any Leased Property does not occur on the Separation
Date, Palm or its applicable Subsidiary shall, commencing on the Separation
Date, be entitled to occupy the relevant Property (except to the extent that the
same is a Retained Part) as a licensee upon the terms and conditions contained
in 3Com's Lease. Such license shall not be revocable prior to the date for
completion as provided in Section 1.1(a) unless an enforcement action or
forfeiture by the relevant Landlord due to Palm's or its applicable Subsidiary's
occupation of the Property constituting a breach of 3Com's Lease cannot, in the
reasonable opinion of 3Com, be avoided other than by requiring Palm or its
applicable Subsidiary to immediately vacate the relevant Property, in which case
3Com may by notice to Palm immediately require Palm or its applicable Subsidiary
to vacate the relevant Property. Palm will be responsible for all costs,
expenses and liabilities incurred by 3Com or its applicable Subsidiary as a
consequence of such occupation, except for any losses, claims, costs, demands
and liabilities incurred by 3Com or its Subsidiary as a result of any
enforcement action taken by the Landlord against 3Com or its Subsidiary with
respect to any breach by 3Com or its Subsidiary of the Relevant Lease in
permitting Palm or its applicable Subsidiary to so occupy the Property without
obtaining the required Lease Consent, for which 3Com or its Subsidiary shall be
solely responsible. Neither Palm nor its applicable Subsidiary shall be entitled
to make any claim or demand against, or obtain reimbursement from, 3Com or its
applicable Subsidiary with respect to any costs, losses, claims, liabilities or
damages incurred by Palm or its applicable Subsidiary as a consequence of being
obliged to vacate the Property or in obtaining alternative premises, including,
without limitation, any enforcement action which a Landlord may take against
Palm or its applicable Subsidiary.
(b) In the event that the Actual Completion Date for any Leased Property
does not occur on the Separation Date, whether or not Palm or its applicable
Subsidiary occupies a Property as licensee as provided in Section 1.5(a) above,
Palm shall, effective as of the Separation Date, (i) pay or cause its applicable
Subsidiary to pay 3Com all rents, service charges, insurance premiums and other
sums payable by 3Com or its applicable Subsidiary under any Relevant Lease, (ii)
observe or cause its applicable Subsidiary to observe the tenant's covenants,
obligations and conditions contained in 3Com's Lease and (iii) indemnify,
defend, protect and hold harmless 3Com and its applicable
Subsidiary from and against all losses, costs, claims, damages and liabilities
arising on account of any breach thereof by Palm or its applicable Subsidiary.
(c) 3Com shall supply promptly to Palm copies of all invoices, demands,
notices and other communications received by 3Com or its applicable Subsidiaries
or agents in connection with any of the matters for which Palm or its applicable
Subsidiary may be liable to make any payment or perform any obligation pursuant
to Section 1.5(a) or (b), and shall, at Palm's cost, take any steps and pass on
any objections which Palm or its applicable Subsidiary may have in connection
with any such matters. Palm shall promptly supply to 3Com any notices, demands,
invoices and other communications received by Palm or its applicable Subsidiary
or agents from any Landlord while Palm or its applicable Subsidiary occupies any
Property without the relevant Lease Consent.
Section 1.6 Obligation to Complete
(a) If, with respect to any Leased Property, at any time the relevant Lease
Consent is formally and unconditionally refused in writing, 3Com and Palm shall
commence good faith negotiations and use commercially reasonable efforts to
determine how to allocate the applicable Property, based on the relative
importance of the applicable Property to the operations of each party, the size
of the applicable Property, the number of employees of each party at the
applicable Property and the potential risk and liability to each party in the
event an enforcement action is brought by the applicable Landlord. Such
commercially reasonable efforts shall include consideration of alternate
structures to accommodate the needs of both parties and the allocation of the
costs thereof, including entering into amendments of the size, term or other
terms of the Relevant Lease, restructuring a proposed lease assignment to be a
sublease and relocating one party. If the parties are unable to agree upon an
allocation of the Property within fifteen (15) days after commencement of
negotiations between the parties as described above, then either party may, by
delivering written notice to the other, require that the matter be referred to
the Chief Financial Officers of both parties. In such event, the Chief Financial
Officers shall use commercially reasonable efforts to determine the allocation
of the Property, including having a meeting or telephone conference within ten
(10) days thereafter. If the parties are unable to agree upon the allocation of
an applicable Property within fifteen (15) days after the matter is referred to
the Chief Financial Officers of the parties as described above, the disposition
of the applicable Property and the risks associated therewith shall be allocated
between the parties as set forth in subparts (b) and (c) of this section below.
(b) If, with respect to any Leased Property, the parties are unable to
agree upon the allocation of a Property as set forth in Section 1.6(a), 3Com may
by written notice to Palm elect to apply to the relevant Landlord for consent to
sublease all of the relevant Property to Palm or its applicable Subsidiary for
the remainder of the Relevant Lease term less three (3) days at a rent equal to
the rent from time to time under the Relevant Lease, but otherwise on
substantially the same terms and conditions as the Relevant Lease. If 3Com makes
such an election, until such time as the relevant Lease Consent is obtained and
a sublease is completed, the provisions of Section 1.5 will apply and, on the
grant of the Lease Consent required to sublease the Leased Property in question,
3Com shall sublease or cause its applicable Subsidiary to sublease to Palm or
its applicable Subsidiary the relevant Property which sublease shall be for the
term and rent set forth in the Relevant Lease and otherwise on the terms of the
Relevant Lease.
(c) If the parties are unable to agree upon the allocation of a Property as
set forth in Section 1.6(a) and 3Com does not make an election pursuant to
Section 1.6(b) above, 3Com may elect by written notice to Palm to require Palm
or its applicable Subsidiary to vacate the relevant Property immediately or by
such other date as may be specified in the notice served by 3Com (the "Notice
Date"), in which case Palm shall vacate or cause its applicable Subsidiary to
vacate the relevant Property on the Notice Date but shall indemnify 3Com and its
applicable Subsidiary from and against all costs, claims, losses, liabilities
and damages in relation to the relevant Property arising from and including the
Separation Date to and including the later of the Notice Date and date on which
Palm or its applicable Subsidiary vacates the relevant Property, except for any
costs, losses, damages, claims and liabilities incurred by 3Com or its
Subsidiary with respect to any enforcement action taken by the Landlord against
3Com or its Subsidiary with respect to any breach by 3Com or its Subsidiary of
the Relevant Lease in permitting Palm or its applicable Subsidiary to so occupy
the Property without obtaining the required Lease Consent. Neither Palm nor its
applicable Subsidiary shall be entitled to make any claim or demand against or
obtain reimbursement from 3Com or its applicable Subsidiary with respect to any
costs, losses, claims, liabilities or damages incurred by Palm or its applicable
Subsidiary as a consequence of being obliged to vacate the Property or obtaining
alternative premises, including, without limitation, any enforcement action
which a Landlord may take against Palm or its applicable Subsidiary.
Section 1.7 Form of Transfer
(a) The assignment to Palm or its applicable Subsidiary of each relevant
Leased Property shall be in substantially the form attached in Schedule 2, with
such amendments which in the reasonable opinion of 3Com are necessary with
respect to a particular Property, including, without limitation, in all cases
where a relevant Landlord has required a guarantor or surety to guarantee the
obligations of Palm or its applicable Subsidiary contained in the relevant Lease
Consent or any other document which Palm or its applicable Subsidiary is
required to complete, the giving of such guarantee by a guarantor or surety, and
the giving by Palm or its applicable Subsidiary and any guarantor or surety of
Palm's or its applicable Subsidiary's obligations of direct obligations to 3Com
or third parties where required under the terms of any of the Lease Consent or
any covenant, condition, restriction, easement, lease or other encumbrance to
which the Property is subject. Such amendments shall be submitted to Palm for
approval, which approval shall not be unreasonably withheld or delayed.
(b) The licenses to be granted by Palm or its applicable Subsidiary to 3Com
or its applicable Subsidiary, and 3Com or its applicable Subsidiary to Palm or
its applicable Subsidiary, with respect to the Shared Properties shall be at a
rental rate set forth in Schedule 5 hereof and be for a term of six (6) months;
provided, however, that the license as to the warehouse facility located at
0000-0000 Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx shall be at a monthly rental
rate of $1.10 per square foot and terminate on December 31, 2000. Either party
shall have the right to terminate the license as to any of the Properties upon
thirty (30) days' prior notice. Rent shall be abated for the period from the
Separation Date to March 1, 2000. The license shall be substantially in the form
of the License Form, with such amendments as are, in the reasonable opinion of
3Com, necessary with respect to a particular Property. Such amendments shall be
submitted to Palm for approval, which approval shall not be unreasonably
withheld.
(c) The lease and sublease to be granted to Palm with respect to the
Headquarters Facility shall be at a monthly rental rate of $3.72 per square foot
full service gross including furniture and copier rental through February 28,
2001, $3.82 per square foot full service gross including furniture and copier
rental from March 1, 2001 through February 28, 2002 and $3.93 per square foot
full service gross including furniture and copier rental thereafter, and be for
a term commencing on the Separation Date and expiring (i) February 28, 2003 as
to Buildings 12 and 15 and the related common areas and (ii) August 1, 2002 as
to Buildings 9 and 10 and the related common areas; provided, however, that in
the event 3Com extends its underlying lease as to Buildings 9 and 10 or
purchases the underlying fee interest in such property, the expiration date as
to Buildings 9 and 10 and the related common areas shall be automatically
extended to February 28, 2003. Either party may terminate the lease or sublease
as to any of the buildings then subject to the lease or sublease upon six (6)
months prior notice, which notice may be given at any time after December 31,
2000; provided, however, that any given termination notice may apply as to only
one building and neither party may give a termination notice within thirty (30)
days of any previous termination notice given by either party. The lease and
sublease shall commence as to the various buildings within the Headquarters
Facility in accordance with the schedule set forth in Section C of Schedule 1
hereof; provided, however, that the lease as to Buildings 12 and 15 shall not
commence until such buildings are delivered to Tenant. Rent shall be abated for
the period from the Separation Date to March 1, 2000. Such lease and sublease
shall be substantially in the form of the lease and sublease forms attached
hereto as Schedule 4 and shall include such amendments which in the reasonable
opinion of 3Com are necessary with respect to a particular Property. Such
amendments shall be submitted to Palm for approval, which approval shall not be
unreasonably withheld or delayed.
Section 1.8 Casualty; Lease Termination
The parties hereto shall grant and accept assignments, leases, subleases or
licenses of the Properties as described in this Agreement, regardless of any
casualty damage or other change in the condition of the Properties. In addition,
subject to 3Com's obligations in Section 5.6 of the Separation Agreement, in the
event that 3Com's Lease with respect to a Leased Property or a Shared Property
or 3Com's interest in the leased portion of the Headquarters Facility is
terminated prior to the Separation Date, (a) 3Com or its applicable Subsidiary
shall not be required to assign, sublease or license such Property, (b) Palm or
its applicable Subsidiary shall not be required to accept an assignment,
sublease or license of such Property and (c) neither party shall have any
further liability with respect to such Property hereunder.
Section 1.9 Tenant's Fixtures and Fittings
The provisions of the Separation Agreement and the other Ancillary
Agreements shall apply to any trade fixtures and personal property located at
each Property. The lease and sublease of the Headquarters Facility and the
licenses as to the Shared Properties shall include the rental of the furniture
at such Properties.
Section 1.10 Costs
3Com shall pay all reasonable costs and expenses incurred in connection
with obtaining the Lease Consents, including, without limitation, Landlord's
consent fees and attorneys' fees and any
costs and expenses relating to re-negotiation of 3Com's Leases.
ARTICLE II
MISCELLANEOUS
Section 2.1 Limitation of Liability. IN NO EVENT SHALL ANY MEMBER OF THE
3COM GROUP OR PALM GROUP BE LIABLE TO ANY OTHER MEMBER OF THE 3COM GROUP OR PALM
GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES
OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING
NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE
FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY'S INDEMNIFICATION OBLIGATIONS
FOR LIABILITIES TO THIRD PARTIES AS SET FORTH IN THE INDEMNIFICATION AND
INSURANCE MATTERS AGREEMENT.
Section 2.2 Entire Agreement. This Agreement, the Separation Agreement,
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 shall supersede all prior written
and oral and all contemporaneous oral agreements and understandings with respect
to the subject matter hereof.
Section 2.3 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 Xxxxx 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 5.9 of the Separation Agreement. Notwithstanding the foregoing, the
applicable Property transfers shall be performed in accordance with the laws of
the state in which the applicable Property is located.
Section 2.4 Notices. Notices, demands, 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:
3Com Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Fax: 000.000.0000
if to Palm:
Palm Computing, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
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 2.5 Counterparts. This Agreement, including the Schedules and
Exhibits hereto, and the other documents referred to herein, 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.
Section 2.6 Binding Effect; Assignment. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective legal
representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement. This Agreement may
be enforced separately by each member of the 3Com Group and each member of the
Palm Group. Neither party may assign this Agreement or any rights or obligations
hereunder, without the prior written consent of the other party, and any such
assignment shall be void; provided, however, either party may assign this
Agreement to a successor entity in conjunction with such party's
reincorporation.
Section 2.7 Severability. If any term or other provision of this
Agreement or the Schedules or 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 2.8 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 or Schedules attached hereto are cumulative
to, and not exclusive of, any rights or remedies otherwise available.
Section 2.9 Amendment. No change or amendment will be made to this
Agreement or the Exhibits or Schedules attached hereto except by an instrument
in writing signed on behalf of each of the parties to such agreement.
Section 2.10 Authority. Each of the parties hereto represents to the
other that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary
corporate or other action, (c) it has duly and validly executed and delivered
this Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
Section 2.11 Interpretation. The headings contained in this Agreement, in
any Exhibit or Schedule hereto and in the table or 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 Schedule or
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, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
Section 2.12 Disputes. Any Disputes that arise under this Agreement shall
be resolved in accordance with the provisions of Section 5.9 of the Separation
Agreement.
ARTICLE III
DEFINITIONS
The following terms, as used herein, shall have the following meanings:
Actual Completion Date means, with respect to each Property, the date upon which
completion of the assignment, lease or sublease of that Property actually takes
place.
Headquarters Facility means Buildings 9, 10, 12 and 15 located at 3Com's campus
at Santa Clara, California, as set forth in Section C of Schedule 1 of this
Agreement, together with the non-exclusive right to use the Building 1 and
Building 9 cafeterias, the Building 6 bistro cafe, the Building 5 annex, the
Company Store, food and beverage facilities located on 3Com's campus upon the
terms and subject to the restrictions set forth in the lease and sublease forms
attached hereto a Schedule 4.
Landlord means the landlord under 3Com's Lease, and its successors and assigns,
and includes the holder of any other interest which is superior to the interest
of the landlord under 3Com's Lease.
Lease Consents means all consents, waivers or amendments required from the
Landlord or other third parties under the Relevant Leases to assign the Relevant
Leases to Palm or its applicable Subsidiary.
Leased Properties means those Properties in Section A of Schedule 1 of this
Agreement.
License Form means the form license attached hereto as Schedule 3.
Property means the Leased Properties, the Shared Properties and the Headquarters
Facility.
Relevant Leases means those of 3Com's Leases with respect to which the
Landlord's consent is required for assignment or sublease to a third party or
which prohibit assignments or subleases.
Retained Parts means those parts of the Leased Properties which, following
assignment to Palm or its applicable Subsidiary, are intended to be licensed to
3Com or its applicable Subsidiary.
Shared Properties means those Properties listed in (a) Section A of Schedule 1
as a Property involving a license back to 3Com and (b) Section B of Schedule 1
of this Agreement.
3Com's Lease means, in relation to each Property, the lease(s) or sublease(s) or
license(s) under which 3Com or its applicable Subsidiary holds such Property and
any other supplemental document completed prior to the Actual Completion Date.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized on the day and
year first above written.
3COM CORPORATION
By: _______________________
Name: _____________________
Title: ____________________
PALM, INC.
By: _______________________
Name: _____________________
Title: ____________________
Schedule 1
----------
Properties
Section A: Leased Properties
----------------------------------------------------------
Address License back Area to be
to licensed
3Com?
(Y/N)
----------------------------------------------------------
Tour Xxxxx X X 5,750
00 Xxx Xxxxx
00000 Xxxxx Xx Defense,
France
----------------------------------------------------------
0000 000xx Xxx. XX, X
Xxx. # 000
Xxxxxxxx, XX
----------------------------------------------------------
000 Xxxx Xxxxxx, Xxx X
Xxxxx
Xxxxxxxxxx, XX
----------------------------------------------------------
0000 Xxxxxxxxxx Xxxxxx X
Xxx Xxxxxxxxx, XX
----------------------------------------------------------
Immeuble Alliance 1 N
77 rue Xxxxxx Xxxxx
X.X. 00 0000
Xxxxxxxxxxx, XX
----------------------------------------------------------
Section B: Shared Properties
----------------------------------------------------------
Address Area to be Approximate Number
licensed of Employees
----------------------------------------------------------
0000-0000 Xxxx Xxx. ~800 XX 0 - xxxxxxx
Xxxxx Xxxxx, XX
----------------------------------------------------------
000 X 0000 Xxxx X/X 0
Xxxx Xxxx Xxxx, XX
----------------------------------------------------------
0000 Xxxx Xx. X/X 0
Xxxxxxx, XX
----------------------------------------------------------
000 Xxxxxxxx Xx. N/A 18
Winnersh, England
----------------------------------------------------------
0 Xxxxxxx Xxxxx Xx. X/X 0
#0 Xxxxxxxxx
----------------------------------------------------------
Six Concourse Pkwy N/A 1
#0000
Xxxxxxx, XX
----------------------------------------------------------
0000 Xxxxxx Xxx. N/A 1
South, 6th Fl.
Bloomington MN
----------------------------------------------------------
0000 Xxxxxxx Xx. X/X 0
Xxxxxxxxxx, XX,
----------------------------------------------------------
0000 X. Xxxxx Xxxxx, X/X 0
Xxx. #000
Xxxxx, XX
----------------------------------------------------------
0000 Xxxxx Xxxxxx Xx. X/X 0
Xxxxxx, XX
----------------------------------------------------------
3606 AK Xxxxxxxx X/X 0
Xxxxxxxxxxx
----------------------------------------------------------
D-85609 X/X 0
Xxxxxxxx-Xxxxxxx,
Xxxxxxx
----------------------------------------------------------
Frosundaviks Alle 15, N/A 3
Box 1251
171 24 Solna Sweden
----------------------------------------------------------
----------------------------------------------------------
00 Xxxxxxxxx Xxxxxxx X/X 0
XX-0000 Xxxxxx
Xxxxxxxxxxx
----------------------------------------------------------
Xx Xx Xxxx Xxxxxxxx, X/X 3
00 Xxx Xxxxx Xx.
Xxxxxxx Xxxx Xxxx
----------------------------------------------------------
00 Xxxxx Xx.xxxxx X/X 0
00/00
Xxxxxx Xxxxxxxxx
----------------------------------------------------------
0-00-0 Xxxxxxxxxxx X/X 0
Xxxxxx-Xx
Xxxxx Xxxxx 113-6591
----------------------------------------------------------
00 Xxxxxxx Xxxxx X/X 0
#00-00/00
Xxxxxxxxx
----------------------------------------------------------
Xxxxxxx Xxxxx Xx Xxx X/X 0
Xxxxxx 000-000
Xxxxxx Xxxx, Xxxxxx
----------------------------------------------------------
Xxxxxxx Xxxxxxx X/X 0
Xxxxxx #000
Xxx Xxxxx, Xxxxxx
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Section C: Headquarters Facility
----------------------------------------------------------
Address Leased or Estimated Estimated
Subleased? Commencement Square
Area Date Footage
----------------------------------------------------------
5400 Bayfront Plaza, Leased 3/1/00 34,989
Xxxx 00
Xxxxx Xxxxx, XX
----------------------------------------------------------
5400 Bayfront Plaza, Leased 12/01/00 34,989
Xxxx. 00
Xxxxx Xxxxx, XX
----------------------------------------------------------
5400 Bayfront Plaza, Subleased 3/1/00 63,595
Xxxx. 0
----------------------------------------------------------
5400 Bayfront Plaza, Subleased 3/1/00 83,079
Xxxx. 00
----------------------------------------------------------
Common Area Subleased 3/1/00 12,837
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Schedule 2
----------
Form Assignment for Leased Properties
Schedule 3
----------
Form License for Shared Properties
Schedule 4
----------
Form Lease and Sublease for the Headquarters Facility
Schedule 5
----------
License Rental Rates
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Approximate Allocation
Cost per Person per Month
----------------------------------------------------------
----------------------------------------------------------
Chicago $ 1,900.00
----------------------------------------------------------
Winnersh $ 1,900.00
----------------------------------------------------------
Singapore - Campus to Field $ 1,900.00
----------------------------------------------------------
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Salt Lake City $ 1,900.00
----------------------------------------------------------
Field - Americas
----------------------------------------------------------
Atlanta, GA $ 1,900.00
----------------------------------------------------------
Bloomington, MN $ 1,900.00
----------------------------------------------------------
Burlington, ON $ 1,900.00
----------------------------------------------------------
Tampa, FL $ 1,900.00
----------------------------------------------------------
Vienna, VA $ 1,900.00
----------------------------------------------------------
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Field - EMEA
----------------------------------------------------------
Maarsen, Netherlands $ 1,900.00
----------------------------------------------------------
Munich, Germany $ 1,900.00
----------------------------------------------------------
Solna, Sweden $ 1,900.00
----------------------------------------------------------
Zurich, Switzerland $ 1,900.00
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
Field - APR
----------------------------------------------------------
Hong Kong $ 1,900.00
----------------------------------------------------------
North Sydney, Australia $ 1,900.00
----------------------------------------------------------
Japan $ 1,900.00
----------------------------------------------------------
Singapore (Sales Office) $ 1,900.00
----------------------------------------------------------
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Field - Latin America
----------------------------------------------------------
Mexico $ 1,900.00
----------------------------------------------------------
Brazil $ 1,900.00
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