Deed ofConfidentiality and Undertaking (16 July 2001) in Accordance with Decision in Case No. ACAP 01/2

(7 June 2001)

Parties: Robert Hook of California, United States of America ("Robert Hook") Dusse/do/1er Yacht Club, Germany ("DYC")

Illbruck Pinta GmbH, Germany ("illbruck")

Seattle Yacht Club, United States of America ("SYC")

One World Challenge LLC, United States of America ("OWC")

TABLE OF CONTENTS

Background

Operative provisions Undertaking

Duty not to disclose Confidential Information Security of Confidential Information

Further co-operation

Execution of separate documents Jurisdiction and Governing Law

Warranty of power to execute agreement Term

Definitions Interpretation Execution

BACKGROUND

A IIlbruck is the agent of DYC. OWC is the agent of SYC.

B Robert Hook has an agreement to design and is currently designing sails for il!-bruck for its Volvo Ocean Race Campaign. This design agreement will end at the completion of the Volvo Ocean Race, anticipated to be in June 2002.

C The XXX! America's Cup ("America's Cup") is a competition as defined in the Protocol goveming the America's Cup ("Protocol") and the parties to this agree-ment are aware of the contents therein.

r

^Deed ofCo~fidentiality and Undertaking Case No. ACAP 01/2 D DYC is a challenger for the America's Cup. Robert Hook will not be a Designer

for DYC in that campaign.

E SYC is a challenger for the Ammiea's Cup.

F Robert Hook has art agreement to design sails for OWC as agent for SYC for its America's Cup campaign.

G Robert Hook is therefore subjeet to the Protocol.

H The Ameriea's Cup Arbitration Pareel by its deeision dated 7 June 2001 has approved Robert Hook's designing sails for iIlbruek in the Volvo Ocean Race and for OWC in the America's Cup, subject to The America's Cup Arbitration Panel's approval of this deed of confidentiality.

1 This deed of confidentiality aims to ensure that Robert Hook's involvement with the illbruck Volvo Ocean Race campaign does not impinge directly or indirectly on DYC's preparation for the America's Cup, or on SYC's preparation for the America's Cup by prohibiting the exchange of information between the parties.

ÜPERATIVE PROVISIONS UNDERTAKING

The parties to this deed hereby severally undertake to the America's Cup Arbitra-tion Panel that each will observe the terms and covenants contained in this deed.

2 This undertaking is given in accordance with the decision of the America's Cup Arbitration Panel given in application ACAP 01/2 on 7 June 2001.

3 The parties acknowledge that this undertaking is to be incorporated into the deci-sion of the Americas's Cup Arbitration Panel approving this deed. Any party that is in breach of any of the terms of the undertaking will thereby be in breach of the above decision, rendering the yacht club liable for the breach to be disquali-fied pursuant to Article 6.4 of the Protocol.

4 Any breaeh by an agent of a yacht club shall, for the purpose of clause (3), be a breach by that yacht club.

DUTY NOT TO DJSCLOSE CONFIDENTIAL INFORMATION

5 Robert Hook will not use, pass on, disclose or refer to any Confidential Informa-tion belonging to illbruck when designing for OWC as agent for SYC or at any other time or for any other purpose.

6 Robert Hook will not use, pass on, disclose or refer to any Confidential Informa-tion belonging to OWC as agent for SYC when designing for illbruck or at any other time or for any other purpose.

7 iIlbruck and DYC will not disclose or pass on any Confidential Information about its America's Cup design programme to Robe11 Hook.

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Deed ofConfidentiality and Undertaking Case No. ACAP 01/2

8 illbruck and DYC will not give Robert Hook access to any design aspect of its America's Cup programme.

9 illbruck and DYC will not disclose or pass on any Confidential Tnfonnation about its America's Cup design programme to OWC or SYC.

10 Robert Hook will not have any involvement with illbruck's or DYC's America's Cup programme, including access to designs.

II OWC and SYC will not disclose or pass on any Confidential Information about its America's Cup design programme to illbruck or DYC.

SECURlTY OF CONFIDENTIAL INFORMATION

12 Robert Hook must take ail reasonable steps to keep the Confidential Information belonging to OWC or SYC secure from unauthorised access, use or disclosure to illbruck.

13 Robert Hook must take all reasonable steps to lœep the Confidential Information belonging to illbruck secure from unauthorised access, use or disclosure to OWC.

FURTHER CO-OPERATTON

14 Each party must do anything (including executing a document) another party reasonably requires in writing to give full effect to this document and the trans-actions il contemplates.

EXECUTION OF SEPA RA TE DOCUMENTS

15 This document is properly executed if each party executes either this document or an identical document. ln the latter case, this document takes effect when the last of the identical documents is executed.

JURISDTCTION AND GOVERN1NG LA W

16 All issues arising out of in connection with this deed shall be within the exclusive jurisdiction of the Panel. This deed is governed by the law of New Zealand.

WARRANTY OF POWER TO EXECUTE AGREEMENT

17 Tf an individual executes this agreement on behalf of a recipient which is a com-pany or other legal entity, the individual warrants that he or she has hill authority to enter into this agreement on behalf of the company or other legal entity.

Deed ofConfidentiality and Undertaking Case No. ACAP 01/2

TERM

18 This deed extends for the tenn of the America's Cup.

DEFiNITIONS

19 Business day means a day (except Saturday and Sunday) on which banks are open for general ban king business in Auckland, New Zealand.

20 Confidential Information means ail infOlmation and knowledge regardless of Material Form discovered, made or obtained by Robert Hook for either illbruck or OWC on its Project, or other information relating ta the Relevant Parties cam-paign including:

Designs and specifications for sails;

intellectual or other propel1y.

The infonnation must be any one of the following:

Confidential in fact.

Reasonably regarded by the party as confidentia!.

Information that a written notice from the parties to the other parties is confidentia!.

Information is not confidential if:

it is in the public domain, unless it came into the public domain by a breach of a duty of confidentiality

it is ah'eady known to the receiving party at the time !his agreement is entered into and where this is provided to be the case by contemporaneous documents; or it is obtained lawfully fi'om a third party without any breac1l of confidentiality.

21 Design means the product(s) of applications and processes undertaken by Robert Hook.

22 Designer means Robert Hook when he applies or has applied substantial intellec-tuaI creativity and/or judgement ta the determination of the shape and/or struc-ture of a yacht's sails. Robert Hook shall not be considered to apply or to have applied substantial intellectual creativity and/or judgement to the detennination of the shape and/or structure of a yacht's sails if he merely develops, modifies, operates or provides instructions for the use of or the interpretation of any data Or ÎnfOlmation created by, any machine, tool, instrument, devlce or apparatus inc1uding, but without limitation computer software, towing tank facilities or sale testing facilities, which may be used ta assist in that determination.

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Deed of Confidentiality and Undertaking Case No. ACAP 0112

23 Material Form in relation to Confidential Information means and includes infor-mation contained in manuaIs, plans, designs, drawings, specifications or other documents or records of OWC or illbruck including magnetic tape, disk or imag-ing equipment or stored in any computer or other electronic equipment.

24 Project means a party's America's Cup Campaign or, as the case may be for ill-bruck, its Volvo Ocean Race campaign.

25 Relevant Party in relation to the America's Cup means either illbruck or DYC or OWC or SYC being the party for whom the Confidential Formation was pro-duced, or in relation to the Volvo Ocean Race means illbruck being the park for whom the Confidential Information was produced.

INTERPRETATION

26 A reference to the singuIar includes the plural and vice versa.

EXECUTION

Date: 16 July 2001 Signed by Robert Hook Seattle Yacht Club One World Challenge LLC Dusse/doifer Yacht Club NV Illbruck Pinta GmbH

6.6 Golden Gate Yacht Club / Oracle Racing, Decision in Case No. ACAP 0113 (12 July 2001)

Applicant: Golden Gate Yacht Club / Oracle Racing

PaneHsts: Chairman: Prof.dr.Fernando Pombo Arbitrators: Master John Faire

Mr Donald Manasse Prof.dr. Henry Peter Sir David Tompkins QC

Subject Matter:

- Purchase of generic test data from Wolfon Unit - No breacll of nationality or independent design rules - Ruling limited to specifie facts

THE AMERICA'S CUP ARBITRATION PANEL

IN THE MATTER of the Protocol governing the XXXI America 's Cup AND

IN THE MATTER of an application Golden Gate Yacht Club/Oracle Racing seeking Panel interpretation of the America's Cup Deed of Gift Interpretative Resolutions and of Article 22.3(a) of the Protocol Governing the XXXI America's Cup concerning the purchase of the 1998 Wolfson Rig Research Club sail coefficients data.

DECISION OF THE AMERICA'S CUP ARBITRATION PANEL THE APPLICATION

[1] Oracle Racing on behalf of Golden Gate Yacht Club has applied to the America's Cup Arbitratioll Panel, seeking the Pane!'s permission ta purchase generic test data completed by the Wolfson Unit of the University of Southampton, UK in August 1998 from the "Rig Research Club" which was set up by the Wolfson Unit of the University of Southampton, UK.

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Decision Case No. ACAP 01/3

FACTUAL BACKGROUND

[2] The factual background is set out in the application and is now repeated:

2.1 In 1998 the Wolfson Unit of the University of Southampton, UK ("Wolfson") was approached by several organisations interesled in obtaining sail coefficients appropriatc to ACe yacht rigs for use in VPP calculations. Wcl fsoll proposed and then set up the "Rig Research Club" to enable ally interested organisation to obtain sail coefficients that may then be used in their Qwn design process. The work was eompletcd in August 1998.

2.2 One or more America's Cup XXX teams joined the club as "Foundcr Members" by paying a pro-rata share of the project expense. The research results remain available to any organisation or individual who wishes to join the Rig Research Club as a

"Recipient Member" by paying a certain fee. We are Ilot at this tirne aware whieh, if any, AC XXXI teams have aequired this data as that information has remained eonfi-dential to Wolfson. Oracle Racing has not aequired the data.

2.3 Tests were eonc1uded in the wind tunnel at the University of Southampton using a 1:18 scale modcl. The sails were to the North Sa ils gcncric ACC mould shapes, which we trnderstand have historieally been and are today available to all America's Cup syndieates who buy sails from North.

2.4 The data was reduced to sail coefficients that ean bc interpolated to different sail areas and J/E ratios and ean be lIsed wilhin a

vrp

to model the effeets of flattening and thus lIsed to aid hull design.

2.5 Wolfson has analyzed the test data, and the results are available to purehasers in a number of MS Exeel workbook files. Approximately 500 individual measurements wcre made with different combinations of sail s, settings, apparent wind angle, heel and leeway angles. The workbook files contain eharts showing the variation with sail settings of the corrected sail forces, moments, coefficients and center of effort locations.

DIRECTIONS AS TO SERVICE

[3] On receipt of the application the Panel gave directions as to service. The direc-tions required any party who wished to oppose the application to file and serve sub-missions and evidence by Spm on Friday, 22 June 2001. No party has filed any submission or evidence in opposition to the application.

THE APPUCANT'S CASE

[4] The Golden Gate Yacht Club's case is that what is involved is the pUl'chase of data that may becomc an integral part of a VPP. The data that is avaiJable for purchase is material which helps in the construction or improvement of a computer code. It does not involve the sharing of actual design information for any past, existing or future

Decision Case No. ACAP 01/3

yacht. A designer must still apply his own creativity and/or judgement to the deter-mination of the shape and/or the structure of the yacht, its hull, rig or appendages or sails. The data is available for sale off the shelf to any challenger or defender.

Ils preparation was completed in August 1998. Mr Ian Campbell, a Wolfson principal, is now involved as a designer with the British challenge. He was involved in the work prepared for the Rig Research Club. That involvement however is historical. Il is not connect with America's Cup XXXI. His involvement in the data could not in any way lend any creativity and/or judgement to the design of yachts by teams using the data.

[5] Accordingly, Oracle Racing submits, and the Panel agrees, that in respect ofthe data as described, its acquisition does not contravene the nationality requirements of the Protocol, nor does it infringe the separate and inde pendent design rules of the Protocol.

(See, Articles Il and 15 of the Protocol.)

[6] These conclusions are reached against the background facts which were pre-sented to the Panel and are described in paragraph [2] of this decision.

LIMITATTON ON APPROVAL GIVEN BY PANEL

[7] The Panel emphasizes that the approval which it gives in this decision is limited to the specifie facts and, in particular, to the description of the data supplied and the fact that it was completed by August 1998. The pooling and/or transfer of information by or/between syndicates in other circumstances is not acceptable under the current Protocol.

FUlther, syndicates are wamed that the acquisition of information from a foreign country may well infringe the nationality requirements of the Protocol. If Mr Campbell were asked by a challenger from a country outside Great Britain, or from the defender, to provide input or interpretation of the data, then such actions would breach the Protoco1.

CONCLUSION

[8] Oracle Racing, on behalf of the Golden Gate Yacht Club, and any other chal-lenger and the defender may purchase generic test data completed by the Wolfson Unit of the University of Southampton, UK in August 1998 from the Rig Research Club which was set up by the Wolfson Unit of the University of Southampton, UK.

COSTS

[9] The Panel's costs on this application are fixed at US $2,000 ta be paid by Oracle Racing on behalf of the Golden Gate Yacht Club to the Registrar within 21 days of the date of this decision.

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l ' l '

6.7 Golden Gate Yacht Club / Oracle Racing, Decision in Case No. ACAP 01/4

(19 September 200 1)

6.7. 1 Decision "Ad Interim" on Design Information (19 September 200 1)

Applicant: Golden Gate Yacht Club / Oracle Racing Panelists: Chairman:

Arbitrators:

Subject Matter:

Prof.dr.Femando Pombo Master John Faire Mr Donald Manasse Prof.dr. Henry Peter Sir David Tompkins QC

- Design and pelformance information of 'old' ACC yachts - Whether performance information is 'other design information' - Purchase infringes rule requiring separate and independent designers

THE AMERICA'S CUP ARBITRATION PANEL

IN THE MATTER of the Protocol governing the XXXI America's Cup AND

IN THE MATTER of an application by Golden Gate Yacht Club/Oracle Racing seeking an interpretation concerning the obtaining of plans specifications, and other design or performance information relating to the purchase of four ACC yachts from previous entities.

INTERIM DECISION OF THE AMERICA'S CUP ARBITRATION PANEL

[Il Oracle Racing on behalf of Golden Gate Yacht Club ("Golden Gate / Oracle") has applied to the America's Cup Arbitration Panel ("the Panel") seeking an interpretation of the Protocol governing, the XXXI America's Cup ("the Protocol") under Article 22.3(a) of the Protocol.

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Interim Decision Case No. ACAP 01/4

THE QUESTION

[2] The question posed by the application is:

Can Golden Gate/Oracle obtain the plans specifications and other design or perfonnance information relating to the four ACe yachts it has acquired from other entities provided these entities are not participating as a challenger or the defender for America ^'5 CUP XXX'l?

THE PARTfCULARS PROVIDED

[3] The application provides the following particulars;

3.\ In June 2000 Team Sayonara, Inc. purchased from the US Bankmptcy Court for the Northern District of Alabama as trustee for Aloha Racing Foundation, Ine. (formerly dba Aloha Racing) the ACC yachts USA-50 and USA-34. Subsequently Oracle Racing, Ine. purchased the yachts front Twin Sayonara, Ine. Neither Tearn Sayonara nOf Oracle Racing has acquired or obtained any design info for these yachts.

3.2 In August 2000 Oracle Racing, Ine. purchased from San Francisco Challenge, Tnc.

(dba AmericaOne) the ACC yachts USA-49 and USA-6J. Likewise Oracle Racing has not acquired or obtained ally design info for these yachts. The agreement bctween Oracle Racing, and AmericaOne prohibits AmericaOne from using its design information or technology in America's Cup XXXI, or selling it to any party other than Oracle Racing that would use the design information or technology during America 's Cup XXXI.

3.3 In purchasing a11 four yachts, the design info was specifically excluded from those assets purchased unless and until Oracle Racing could satisfy itself that acquiring or obtaining such design info was not prohibited by any of the rules governing AC XXXI. Oracle Racing wishes to acquire this infonnation. and accordingly now seeks an interpretation from ACAP of the relevant rules.

3.4 Neither Aloha Racing (which is defunct) nor AmericaOne (continues as a charitable foundation) arc teams competing in America's Cup XXXI.

3.5 The particulars provided do not reveal who is the persan who has prepared the plan, specifications and other design or performance information relating to the four ACC yachts which "Golden Gate / Oracle" have acquired. For the purposes of tbis decision we assume that it was not a person engaged by "Golden Gate / Oracle" as its designer for the XXXI America's Cup.

THE RULING REQUESTED

[4] Golden Gate / Oracle seeks from the Panel a ruling that it may obtain al\ deign and performance information owned by Aloha Racing and AmericaOne even though it has also acquired two "old" America's Cup c1ass yachts from each ofthose entities.

[nterim Decision Case No. ACAP 01/4

[5] The Panel has received submissions in support of the ruling requested from Seattle Yacht Club 1 One World Challenge and in opposition to the ruling requested from Yacht Club Punta Ala 1 Prada Challenge, Société Nautique de Genève 1 Alinghi, the Royal Ocean Racing Club 1 GBR Challenge, and the Royal New Zealand Yacht Squadron 1 Team New Zealand.

Dans le document Arbitration in the America's Cup : the XXXI America's Cup arbitration panel and its decisions (Page 122-133)