Exhibit 10.2
General Assignment and Assumption Agreement
by and among
Schlumberger Technologies, Inc.,
Schlumberger Technology Corporation,
Schlumberger BV
and
NPTest, Inc.
_______ __, 2000
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I CONTRIBUTION AND ASSUMPTION............................................ 2
-------------------------------------
Section 1.1 Contribution of Assets and Assumption of Liabilities......... 2
----------- ----------------------------------------------------
Section 1.2 NPT Assets................................................... 3
----------- ----------
Section 1.3 NPT Liabilities.............................................. 4
----------- ---------------
Section 1.4 Local Transfer Agreements.................................... 6
----------- -------------------------
Section 1.5 Methods of Transfer and Assumption........................... 6
----------- ----------------------------------
Section 1.6 Governmental Approvals and Consents.......................... 7
----------- -----------------------------------
Section 1.7 Novation of Assumed NPT Liabilities.......................... 8
----------- -----------------------------------
ARTICLE II LITIGATION............................................................ 9
---------------------
Section 2.1 Allocation................................................... 9
----------- ----------
Section 2.2 Cooperation.................................................. 9
----------- -----------
ARTICLE III MISCELLANEOUS........................................................ 9
-------------------------
Section 3.1 Entire Agreement............................................. 10
----------- ----------------
Section 3.2 Governing Law................................................ 10
----------- -------------
Section 3.3 Descriptive Headings......................................... 10
----------- --------------------
Section 3.4 Termination.................................................. 10
----------- -----------
Section 3.5 Notices...................................................... 10
----------- -------
Section 3.6 Counterparts................................................. 11
----------- ------------
Section 3.7 Binding Effect; Assignment................................... 11
----------- --------------------------
Section 3.8 Severability................................................. 11
----------- ------------
Section 3.9 Failure or Indulgence Not Waiver; Remedies Cumulative........ 12
----------- -----------------------------------------------------
Section 3.10 Amendment.................................................... 12
------------ ---------
Section 3.11 Authority.................................................... 12
------------ ---------
Section 3.12 Interpretation............................................... 12
------------ --------------
Section 3.13 Dispute Resolution........................................... 12
------------ ------------------
ARTICLE IV DEFINITIONS........................................................... 12
----------------------
Section 4.1 Action....................................................... 12
----------- ------
Section 4.2 Accounts Payable............................................. 12
----------- ----------------
Section 4.3 Accounts Receivable.................................................. 13
----------- -------------------
Section 4.4 Affiliate............................................................ 13
----------- ---------
Section 4.5 Ancillary Agreement.................................................. 13
----------- -------------------
Section 4.6 Assets............................................................... 13
----------- ------
Section 4.7 Contracts............................................................ 15
----------- ---------
Section 4.8 Delayed Transfer Assets.............................................. 15
----------- -----------------------
Section 4.9 Delayed Transfer Liabilities......................................... 15
----------- ----------------------------
Section 4.10 Governmental Approvals............................................... 15
------------ ----------------------
Section 4.11 Governmental Authority............................................... 15
------------ ----------------------
Section 4.12 Indemnification and Insurance Matters Agreement...................... 15
------------ -----------------------------------------------
Section 4.13 Insurance Policies................................................... 15
------------ ------------------
Section 4.14 Intellectual Property................................................ 15
------------ ---------------------
Section 4.15 IPO Closing Date..................................................... 15
------------ ----------------
Section 4.16 IPO Pricing Date..................................................... 15
------------ ----------------
Section 4.17 Liabilities.......................................................... 15
------------ -----------
Section 4.18 Local Transfer Agreements............................................ 15
------------ -------------------------
Section 4.19 Master Separation and Sale Agreement................................. 16
------------ ------------------------------------
Section 4.20 NPT Balance Sheet.................................................... 16
------------ -----------------
Section 4.21 NPT Contingent Gain.................................................. 16
------------ -------------------
Section 4.22 NPT Contingent Liability............................................. 16
------------ ------------------------
Section 4.23 NPT Contracts........................................................ 17
------------ -------------
Section 4.24 NPT Group............................................................ 17
------------ ---------
Section 4.25 Person............................................................... 18
------------ ------
Section 4.26 Sale................................................................. 18
------------ ----
Section 4.27 Schlumberger Group................................................... 18
------------ ------------------
Section 4.28 Security Interest.................................................... 18
------------ -----------------
Section 4.29 Taxes................................................................ 18
------------ -----
ii
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
This General Assignment and Assumption Agreement (this "Agreement") is
effective as of _______ __, 2002, by and among Schlumberger Technologies, Inc.,
a Delaware corporation ("STI"), Schlumberger Technology Corporation, a Texas
corporation ("STC"), Schlumberger BV, a company organized and existing under the
laws of the Netherlands ("SBV" and, together with STI, and STC, "Schlumberger"),
and NPTest, Inc. ("NPT"), a Delaware corporation. Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to such terms
in Article IV hereof.
RECITALS
WHEREAS, STI and SBV collectively own all of the currently issued and
outstanding common stock of NPT;
WHEREAS, NPT is engaged in the NPT Business (as such term is defined in
the Master Separation and Sale Agreement);
WHEREAS, the Board of Directors of each of STI, STC, SBV and NPT has
determined that it would be appropriate and desirable for Schlumberger to
contribute and transfer to NPT, and for NPT to receive and assume, directly or
indirectly, certain assets and liabilities currently held, directly or
indirectly, by Schlumberger and associated with the NPT Business, as identified
in more detail herein, in the other Ancillary Agreements and in the Master
Separation and Sale Agreement;
WHEREAS, Schlumberger hereby intends to transfer, and by certain other
agreements and instruments has transferred or will transfer, to NPT on or prior
to the Separation Date, certain assets of the NPT Business owned by
Schlumberger, in accordance with this Agreement, the Master Separation and Sale
Agreement and the other agreements and instruments referenced herein or therein
or attached hereto or thereto; and
WHEREAS, NPT hereby intends to assume, and by certain other agreements
and instruments has assumed or will assume, from Schlumberger on or prior to the
Separation Date, certain liabilities related to the NPT Business owed by
Schlumberger, in accordance with this Agreement, the Master Separation and Sale
Agreement and the other agreements and instruments referenced herein or therein
or attached hereto or thereto.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
CONTRIBUTION AND ASSUMPTION
Section 1.1 Contribution of Assets and Assumption of Liabilities.
(a) Transfer of Assets. Schlumberger has assigned, transferred,
conveyed and delivered or hereby assigns, transfers, conveys and delivers (or
has caused or will cause any applicable Schlumberger Subsidiary (as defined in
the Master Separation and Sale Agreement) to assign, transfer, convey and
deliver) to NPT or to any applicable NPT Subsidiary (as defined in the Master
Separation and Sale Agreement), and NPT has accepted or hereby accepts from
Schlumberger, or applicable Schlumberger Subsidiary, and has accepted or agrees
to cause its applicable NPT Subsidiary to accept, all of Schlumberger's and its
applicable Subsidiaries' respective right, title and interest in NPT Assets,
other than the Delayed Transfer Assets; provided, however, that any NPT Assets
that are specifically assigned or transferred pursuant to another Ancillary
Agreement shall not be assigned or transferred pursuant to this Section 1.1(a).
(b) Assumption of Liabilities. NPT has assumed or hereby
assumes and agrees faithfully to perform and fulfill (or has caused or will
cause any applicable Subsidiary to assume, perform and fulfill), all the NPT
Liabilities (as defined in Section 1.3) owed by Schlumberger, other than the
Delayed Transfer Liabilities; provided, however, that any NPT Liabilities that
are specifically assumed pursuant to another Ancillary Agreement shall not be
assumed pursuant to this Section 1.1(b). Unless another Ancillary Agreement
provides otherwise, from and after the Separation Date, NPT shall be responsible
(or will cause any applicable NPT Subsidiary to be responsible) for all NPT
Liabilities held by Schlumberger that are being assumed hereunder, regardless of
when or where such Liabilities arose or arise, or whether the facts on which
they are based occurred prior to, on or after the date hereof, regardless of
where or against whom such Liabilities are asserted or determined (including any
NPT Liabilities arising out of claims made by Schlumberger's or NPT's respective
directors, officers, consultants, independent contractors, employees or agents
against any member of the Schlumberger Group or the NPT Group) or whether
asserted or determined prior to the date hereof, and regardless of whether
arising from or alleged to arise from negligence, recklessness, violation of
law, fraud, misconduct or misrepresentation by any member of the Schlumberger
Group or the NPT Group or any of their respective directors, officers, employees
or agents.
(c) Delayed Transfer Assets and Liabilities. Each of the
parties hereto agrees that the Delayed Transfer Assets will be assigned,
transferred, conveyed and delivered, and the Delayed Transfer Liabilities will
be assumed, in accordance with the terms of the agreements that provide for such
assignment, transfer, conveyance and delivery, or such assumption, as soon as
practicable after the date of this Agreement or as otherwise set forth on
Schedule 1.1(c). Following such assignment, transfer, conveyance and delivery of
any Delayed Transfer Asset, or the assumption of any Delayed Transfer Liability,
the applicable Delayed Transfer Asset or Delayed Transfer Liability shall be
treated for all purposes of this Agreement and the other Ancillary Agreements as
an NPT Asset or as an NPT Liability, as the case may be, with effect from the
Separation Date, unless otherwise provided for in another Ancillary Agreement or
mutually agreed to in writing by the parties.
2
(d) Misallocated Assets. In the event that at any time or from
time to time (whether prior to, on or after the Separation Date), any party
hereto (or any member of such party's respective Group), shall receive or
otherwise possess any Asset that is allocated to any other Person pursuant to
this Agreement or any Ancillary Agreement, such party shall promptly transfer,
or cause to be transferred, such Asset to the Person so entitled thereto. Prior
to any such transfer, the Person receiving or possessing such Asset shall hold
such Asset as nominee for any such other Person.
Section 1.2 NPT Assets.
(a) Included Assets. For purposes of this Agreement, "NPT
Assets" shall mean (without duplication) the following Assets, except as
otherwise provided for in any other Ancillary Agreement or other express
agreement of the parties:
(i) all Assets reflected in the NPT Balance
Sheet, subject to any dispositions of such Assets subsequent to the date of
the NPT Balance Sheet;
(ii) all Assets that have been written off,
expensed or fully depreciated that, had they not been written off, expensed
or fully depreciated, would have been reflected in the NPT Balance Sheet in
accordance with the principles and accounting policies under which the NPT
Balance Sheet was prepared;
(iii) all Assets acquired by Schlumberger or its
Subsidiaries after the date of the NPT Balance Sheet that would be reflected
in the consolidated balance sheet of NPT as of the Separation Date if such
consolidated balance sheet was prepared using the same principles and
accounting policies under which the NPT Balance Sheet was prepared,
including any business transaction processing that may occur on Schlumberger
systems on behalf of NPT during the period between the Separation Date and
the initialization of the processing systems required by NPT;
(iv) all Assets that are used primarily by the
NPT Business at the Separation Date but are not reflected in the NPT Balance
Sheet due to mistake or omission; provided, however, that no Asset shall be
an NPT Asset requiring any transfer by Schlumberger unless NPT or its
Subsidiaries have, on or before the first anniversary of the IPO Closing
Date, given Schlumberger or its Subsidiaries notice that such Asset is an
NPT Asset;
(v) all NPT Contingent Gains;
(vi) all NPT Contracts;
(vii) all Accounts Receivable;
(viii) to the extent permitted by law and subject
to the Indemnification and Insurance Matters Agreement, all rights of any
member
3
of the NPT Group under any of Schlumberger's Insurance Policies or
other insurance policies issued by Persons unaffiliated with
Schlumberger; and
(ix) all Assets that are expressly
contemplated by this Agreement, the Master
Separation and Sale Agreement or any other Ancillary Agreement (or
Schedule 1.2(a)(ix) or any other Schedule hereto or thereto), or any
agreement or document (each, a "Prior Transfer Agreement") executed and
delivered in connection with the Prior Transfers (as defined in the
Master Separation and Sale Agreement), as Assets to be transferred to
NPT or any other member of the NPT Group.
Notwithstanding the foregoing, the NPT Assets shall not include the
Excluded Assets referred to in Section 1.2(b) below.
(b) Excluded Assets. For the purposes of this Agreement,
"Excluded Assets" shall mean:
(i) the Assets listed or described on
Schedule 1.2(b)(i);
(ii) all cash of NPT as of the Separation
Date, except where the transfer of such cash is prohibited by applicable
law; and
(iii) any Assets that are expressly
contemplated by the Master Separation and Sale Agreement, this Agreement
or any other Ancillary Agreement (or the Schedules hereto or thereto),
or any Prior Transfer Agreement, as Assets to be retained by
Schlumberger or any other member of the Schlumberger Group.
Section 1.3 NPT Liabilities.
(a) Included Liabilities. For the purposes of this
Agreement, "NPT Liabilities" shall mean (without duplication) the following
Liabilities, except as otherwise provided for in any other Ancillary Agreement
or other express agreement of the parties:
(i) all Liabilities reflected in the NPT
Balance Sheet, subject to any discharge of such Liabilities subsequent
to the date of the NPT Balance Sheet;
(ii) all Liabilities of Schlumberger or its
Subsidiaries that arise after the date of the NPT Balance Sheet that
would be reflected in the consolidated balance sheet of NPT as of the
Separation Date if such consolidated balance sheet was prepared using
the same principles and accounting policies under which the NPT Balance
Sheet was prepared;
(iii) all Liabilities that are related
primarily to the NPT Business at the Separation Date but are not
reflected in the NPT Balance Sheet due to mistake or unintentional
omission; provided, however, that no
4
Liability shall be considered as a NPT Liability unless Schlumberger or
its Subsidiaries, on or before the first anniversary of the IPO Closing
Date, has given NPT or its Subsidiaries notice that such Liability is a
NPT Liability;
(iv) all NPT Contingent Liabilities;
(v) the Accounts Payable;
(vi) all Liabilities (other than Liabilities
for Taxes), whether arising before, on or after the Separation Date,
primarily relating to, arising out of or resulting from:
(1) the operation of the NPT Business, as
conducted at any time prior to, on or after the Separation Date
(including any Liability relating to, arising out of or resulting from
any act or failure to act by any director, officer, employee, agent or
representative (whether or not such act or failure to act is or was
within such Person's authority));
(2) the operation of any business conducted
by any member of the NPT Group at any time after the Separation Date
(including any Liability relating to, arising out of or resulting from
any act or failure to act by any director, officer, employee, agent or
representative (whether or not such act or failure to act is or was
within such Person's authority)); or
(3) any NPT Assets;
(vii) all Liabilities relating to, arising
out of or resulting from any of the terminated, divested or discontinued
businesses and operations listed or described on Schedule 1.3(a)(vii);
and
(viii) all Liabilities that are expressly
contemplated by this Agreement, Schedule 1.3(a)(viii), the Master
Separation and Sale Agreement or any other Ancillary Agreement (or the
Schedules hereto or thereto), or any Prior Transfer Agreement, as
Liabilities to be assumed by NPT or any member of the NPT Group, and all
agreements, obligations and Liabilities of any member of the NPT Group
under this Agreement, any of the Ancillary Agreements or any of the
Prior Transfer Agreements.
Notwithstanding the foregoing, the NPT Liabilities shall not include the
Excluded Liabilities referred to in Section 1.3(b) below.
(b) Excluded Liabilities. For the purposes of this Agreement,
"Excluded Liabilities" shall mean:
(i) all Liabilities listed or described in
Schedule 1.3(b)(i);
5
(ii) all Liabilities that are expressly contemplated
by this Agreement, the Master Separation and Sale Agreement or any
other Ancillary Agreement (or the Schedules hereto or thereto), or any
Prior Transfer Agreement, as Liabilities to be retained or assumed by
Schlumberger or any other member of the Schlumberger Group, and all
agreements and obligations of any member of the Schlumberger Group
under the Master Separation and Sale Agreement, this Agreement, any of
the Ancillary Agreements or any of the Prior Transfer Agreements.
Section 1.4 Local Transfer Agreements. Each of Schlumberger and
NPT shall take, and shall cause each member of its respective Group to take,
such action as reasonably necessary to consummate the transactions contemplated
by the Local Transfer Agreements (whether prior to, on or after the Separation
Date).
Section 1.5 Methods of Transfer and Assumption.
(a) Terms of Other Ancillary Agreements Govern. Subject to
the provisions of Section 1.5(b) hereof, the parties shall enter into the other
Ancillary Agreements, on or prior to the date of this Agreement. To the extent
that the transfer of any NPT Asset or the assumption of any NPT Liability is
expressly provided for by the terms or provisions of any other Ancillary
Agreement or of any Prior Transfer Agreement, the terms or provisions of such
other Ancillary Agreement or Prior Transfer Agreement, including, without
limitation, any Local Transfer Agreement, shall effect, and determine the manner
of, the transfer or assumption. It is the intent of the parties that pursuant to
Sections 1.1, 1.2 and 1.3, the transfer and assumption of all other NPT Assets
and NPT Liabilities, other than Delayed Transfer Assets and Delayed Transfer
Liabilities, shall be made on or prior to the Separation Date; provided,
however, that circumstances in various jurisdictions may require the transfer of
certain Assets and the assumption of certain Liabilities to occur in such other
manner and at such other time as the parties shall agree, as provided in Section
1.4 hereof.
(b) Mistaken Assignments and Assumptions. In addition to
those transfers and assumptions accurately identified and designated by the
parties to take place but which the parties are not able to effect prior to the
Separation Date, there may exist (i) Assets that the parties discover were,
contrary to the agreements between the parties, by mistake or omission,
transferred to NPT or (ii) Liabilities that the parties discover were, contrary
to the agreements between the parties, by mistake or omission, assumed by NPT.
In the event that the Assets or Liabilities transferred or assumed under the
terms or provisions of a Local Transfer Agreement are materially different than
those that are contemplated to be transferred or assumed under this Agreement or
any other Ancillary Agreement, the parties hereto shall take such remedial
action as may be necessary or appropriate so as to restore the benefits provided
for or contemplated by this Agreement and the Ancillary Agreement to the party
or parties otherwise harmed, despite the terms and provisions effecting the
relevant transfer and assumption by a Local Transfer Agreement. The parties
shall cooperate in good faith to effect the transfer or re-transfer of such
Assets, and/or the assumption or re-assumption of such Liabilities, to or by the
appropriate party and shall not use the determination that remedial actions need
to be taken to alter the original intent of the parties hereto with respect to
the Assets to be transferred to or Liabilities to be assumed by NPT. Each party
shall reimburse the other or make other financial
6
adjustments (e.g., without limitation, cash reserves) or other adjustments to
remedy any mistakes or omissions relating to any of the Assets transferred
hereby or any of the Liabilities assumed hereby.
(c) Documents Relating to Other Transfers of Assets and
Assumption of Liabilities. In furtherance of the assignment, transfer and
conveyance of NPT Assets and the assumption of NPT Liabilities set forth in
Sections 1.5(a) and (b) and certain other Ancillary Agreements, simultaneously
with the execution and delivery hereof or as promptly as practicable thereafter,
(i) Schlumberger shall execute and deliver, or shall cause its Subsidiaries, in
accordance with Local Transfer Agreements, to execute and deliver, such bills of
sale, stock powers, certificates of title, assignments of contracts and other
instruments of transfer, conveyance and assignment as and to the extent
necessary to evidence the transfer, conveyance and assignment (to the extent not
previously accomplished) of all of Schlumberger's and its Subsidiaries' right,
title and interest in and to the NPT Assets to NPT or another member of the NPT
Group, and (ii) NPT or another member of the NPT Group shall execute and deliver
to Schlumberger or its Subsidiaries such assumptions of contracts and other
instruments of assumption as and to the extent necessary to evidence the valid
and effective assumption, to the extent not previously assumed, of the NPT
Liabilities by NPT or another member of the NPT Group.
Section 1.6 Governmental Approvals and Consents.
(a) Transfer In Violation of Laws. If and to the extent that
the valid, complete and perfected transfer assignment or novation to the NPT
Group of any NPT Assets and NPT Liabilities (or from the NPT Group of any
Non-NPT Assets) would be a violation of applicable laws or require any consent
or Governmental Approval in connection with the Separation, the IPO or the Sale,
then, unless Schlumberger shall otherwise determine, the transfer, assignment or
novation to or from the NPT Group, as the case may be, of such NPT Assets or
Non-NPT Assets, respectively, shall be automatically deemed deferred and any
such purported transfer, assignment or novation shall be null and void until
such time as all legal impediments are removed and/or such consents or
Governmental Approvals have been obtained. Notwithstanding the foregoing, such
Asset shall still be considered a NPT Asset for purposes of determining whether
any Liability is a NPT Liability; provided, however, that if such consents or
Governmental Approvals have not been obtained within six months of the
Separation Date, the parties will use their reasonable commercial efforts to
achieve an alternative solution in accordance with the parties' intentions.
(b) Transfers Not Consummated Prior to Separation Date. If
the transfer, assignment or novation of any Assets intended to be transferred or
assigned hereunder, is not consummated prior to or on the Separation Date,
whether as a result of the provisions of Section 1.6(a) or for any other reason,
then the Person retaining such Asset shall thereafter hold such Asset for the
use and benefit, insofar as reasonably possible, of the Person entitled thereto
(at the expense of the Person entitled thereto). In addition, the Person
retaining such Asset shall take such other actions as may be reasonably
requested by the Person to whom such Asset is to be transferred in order to
place such Person, insofar as reasonably possible, in the same position as if
such Asset had been transferred as contemplated hereby and so that all the
benefits and burdens relating to such NPT Assets (or such Non-NPT Assets, as the
case may be), including
7
possession, use, risk of loss, potential for gain, and dominion, control and
command over such Assets, are to inure from and after the Separation Date to the
NPT Group (or the Schlumberger Group, as the case may be). If and when the
consents and/or Governmental Approvals, the absence of which caused the deferral
of transfer of any Asset pursuant to Section 1.6(a), are obtained, the transfer
of the applicable Asset shall be effected in accordance with the terms of this
Agreement and/or such other applicable provisions of the Master Separation and
Sale Agreement or any other Ancillary Agreement.
Section 1.7 Novation of Assumed NPT Liabilities.
(a) Reasonable Efforts. Each of Schlumberger and NPT, at the
request of the other, shall use its reasonable efforts to obtain, or to cause to
be obtained, any consent, substitution, approval or amendment required to novate
(including with respect to any federal government contract) or assign all rights
and obligations under agreements, leases, licenses and other obligations or
Liabilities (including NPT OFLs) of any nature whatsoever that constitute NPT
Liabilities or to obtain in writing the unconditional release of all parties to
such arrangements other than any member of the NPT Group, so that, in any such
case, NPT and its Subsidiaries will be solely responsible for such Liabilities;
provided, however, that neither Schlumberger, NPT nor their Subsidiaries shall
be obligated to pay any consideration therefor to any third party from whom such
consents, approvals, substitutions and amendments are requested.
(b) Inability to Obtain Novation. If Schlumberger or NPT is
unable to obtain, or to cause to be obtained, any such required consent,
approval, release, substitution or amendment, the applicable member of the
Schlumberger Group shall continue to be bound by such agreements, leases,
licenses and other obligations and, unless not permitted by law or the terms
thereof (except to the extent expressly set forth in this Agreement, the Master
Separation and Sale Agreement or any other Ancillary Agreement), NPT shall, as
agent or subcontractor for Schlumberger or such other Person, as the case may
be, pay, perform and discharge fully, or cause to be paid, transferred or
discharged all the obligations or other Liabilities of Schlumberger or such
other Person, as the case may be, thereunder from and after the date hereof.
Schlumberger shall, without further consideration, pay and remit, or cause to be
paid or remitted, to NPT or its appropriate Subsidiary promptly all money,
rights and other consideration received by it or any member of its respective
Group in respect of such performance (unless any such consideration is an
Excluded Asset). If and when any such consent, approval, release, substitution
or amendment shall be obtained or such agreement, lease, license or other rights
or obligations shall otherwise become assignable or able to be novated,
Schlumberger shall thereafter assign, or cause to be assigned, all its rights,
obligations and other Liabilities thereunder or any rights or obligations of any
member of its respective Group to NPT without payment of further consideration
and NPT shall, without the payment of any further consideration, assume such
rights and obligations.
8
ARTICLE II
LITIGATION
Section 2.1 Allocation.
(a) Litigation to Be Transferred to NPT. Notwithstanding any
contrary provisions in the Indemnification and Insurance Matters Agreement, on
the Separation Date, the responsibilities for management of the litigation
identified in a litigation disclosure letter (the "Litigation Disclosure
Letter"), which will be delivered by Schlumberger to NPT on or prior to the
Separation Date, shall be transferred in their entirety from Schlumberger and
its Subsidiaries to NPT and its Subsidiaries and shall be considered as NPT
Assets or NPT Liabilities, as the case may be. As of the Separation Date and
thereafter, NPT shall be responsible for managing the defense of such litigation
and shall cause its applicable Subsidiaries to do the same. Schlumberger and its
Subsidiaries must first obtain the prior consent of NPT or its applicable
Subsidiary for any action taken subsequent to the Separation Date in connection
with the litigation identified in the Litigation Disclosure Letter, which
consent shall not be unreasonably withheld or delayed. All other matters
relating to such litigation, including but not limited to indemnification for
such claims, shall be governed by the provisions of the Indemnification and
Insurance Matters Agreement.
(b) Litigation to be Defended by Schlumberger at NPT's
Expense. Notwithstanding any contrary provisions in the Indemnification and
Insurance Matters Agreement, Schlumberger shall defend, and shall cause its
applicable Subsidiaries to defend, the litigation identified in the Litigation
Disclosure Letter that is delivered by Schlumberger to NPT on or prior to the
Separation Date. All other matters relating to such litigation, including but
not limited to indemnification for such claims, shall be governed by the
provisions of the Indemnification and Insurance Matters Agreement.
Section 2.2 Cooperation. Schlumberger and NPT and their
respective Subsidiaries shall cooperate with each other in the defense of any
litigation covered under this Article II and afford to each other reasonable
access upon reasonable advance notice to witnesses and Information (other than
Information protected from disclosure by applicable privileges) that is
reasonably required to defend this litigation (as "Information" is defined
pursuant to Section 7.4 of the Master Separation and Sale Agreement). The
foregoing agreement to cooperate includes, but is not limited to, an obligation
to provide access to qualified assistance to provide information, witnesses and
documents to respond to discovery requests in specific lawsuits. In such cases,
cooperation shall be timely so that the party responding to discovery may meet
all court-imposed deadlines. The party requesting information shall reimburse
the party providing information consistent with the terms of Section 5.4 of the
Master Separation and Sale Agreement. The obligations set forth in this
paragraph are set forth in more detail in Section 5.4 of the Master Separation
and Sale Agreement.
ARTICLE III
MISCELLANEOUS
9
Section 3.1 Entire Agreement. This Agreement, the Master
Separation and Sale Agreement, the other Ancillary Agreements and the Exhibits
and Schedules referenced or attached hereto and thereto, and the Prior Transfer
Agreements 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 and thereof.
Section 3.2 Governing Law. This Agreement shall be construed in
accordance with and all Disputes hereunder shall be governed by the laws of the
State of Delaware, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods.
Section 3.3 Descriptive Headings. The headings contained in this
Agreement, in any Exhibit or Schedule 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 or Schedule 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 3.4 Termination. This Agreement may be terminated at any
time prior to the IPO Pricing Date by and in the sole discretion of Schlumberger
without the approval of NPT. This Agreement may be terminated at any time after
the IPO Pricing Date and before the Sale Date by mutual consent of Schlumberger
and NPT. In the event of termination pursuant to this Section 3.4, no party
shall have any liability of any kind to the other party under this Agreement.
Section 3.5 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 STI:
Schlumberger Technologies, Inc.
[To Come]
Attention: [__________]
Telephone: [__________]
Facsimile: [__________]
if to SBV:
Schlumberger BV
[To Come]
Attention: [__________]
Telephone: [__________]
Facsimile: [__________]
10
if to STC:
Schlumberger Technology Corporation
[To Come]
Attention: [__________]
Telephone: [__________]
Facsimile: [__________]
if to NPT:
NPTest, Inc.
[To Come]
Attention: General Counsel
Telephone: [__________]
Facsimile: [__________]
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 days from the
date of postmark.
Section 3.6 Counterparts. This Agreement 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 3.7 Binding Effect; Assignment. No 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 parties' 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 parties.
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 an entity that succeeds to all or substantially all of the
business or assets of such party. Without limiting the foregoing, this Agreement
will be binding upon and inure to the benefit of the parties and their permitted
successors and assigns.
Section 3.8 Severability. If any term or other provision of this
Agreement or the Exhibits or Schedules 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.
11
Section 3.9 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 3.10 Amendment. No change or amendment will be made to
this Agreement except by an instrument in writing signed on behalf of each of
the parties to such agreement.
Section 3.11 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 actions, (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 3.12 Interpretation. The headings contained in this
Agreement, in any Exhibit or Schedule 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 or Schedule 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 3.13 Dispute Resolution. The terms of the provisions
entitled "Dispute Resolution" in the Master Separation and Sale Agreement shall
apply to any claims or controversies or disputes arising hereunder among the
parties to this Agreement.
ARTICLE IV
DEFINITIONS
Section 4.1 Action. "Action" has the meaning set forth in the
Indemnification and Insurance Matters Agreement.
Section 4.2 Accounts Payable. "Accounts Payable" means (i) all
accounts payable and other obligations of payment for goods or services
purchased, leased or otherwise received in the conduct of the NPT Business that
as of the Separation Date are payable to a third Person by Schlumberger or any
of Schlumberger's Subsidiaries, whether past due, due or to become due,
including any interest, sales or use taxes, finance charges, late or returned
check charges and other obligations of Schlumberger or any of Schlumberger's
Subsidiaries with
12
respect thereto, and any obligations related to any of the foregoing and (ii)
all employee compensation Liabilities and other miscellaneous Liabilities for
which an adjustment is made in the NPT Balance Sheet.
Section 4.3 Accounts Receivable. "Accounts Receivable" means (i)
all accounts receivable and other rights to payment for goods or services sold,
leased or otherwise provided in the conduct of the NPT Business that as of the
Separation Date are payable by a third Person to Schlumberger or any of
Schlumberger's Subsidiaries, whether past due, due or to become due, including
any interest, sales or use taxes, finance charges, late or returned check
charges and other obligations of the account debtor with respect thereto, and
any proceeds of any of the foregoing and (ii) all other miscellaneous Assets for
which an adjustment is made in the NPT Pro Forma Balance Sheet (as defined in
the Master Separation and Sale Agreement).
Section 4.4 Affiliate. "Affiliate" has the meaning set forth in
the Master Separation and Sale Agreement.
Section 4.5 Ancillary Agreement. "Ancillary Agreement" has the
meaning set forth in the Master Separation and Sale Agreement.
Section 4.6 Assets. "Assets" means assets, properties and rights
(including goodwill), wherever located (including in the possession of vendors
or other third parties or elsewhere), whether real, personal or mixed, tangible,
intangible or contingent, in each case whether or not recorded or reflected or
required to be recorded or reflected on the books and records or financial
statements of any Person, including the following:
(i) all accounting and other books, records and files
whether in paper, microfilm, microfiche, computer tape or disc, magnetic tape or
any other form;
(ii) all apparatus, computers and other electronic
data processing equipment, automobiles, trucks, aircraft, rolling stock,
vessels, motor vehicles and other transportation equipment, special and general
tools, test devices, prototypes and models and other tangible personal property,
but excluding fixtures, machinery, equipment, furniture and office equipment;
(iii) all inventories of materials, parts, raw
materials, supplies, work-in-process and finished goods and products;
(iv) all interests in real property of whatever
nature, including easements, whether as owner, mortgagee or holder of a Security
Interest, lessor, sublessor, lessee, sublessee or otherwise;
(v) all interests in any capital stock or other
equity interests of any Subsidiary or any other Person; all bonds, notes,
debentures or other securities issued by any Subsidiary or any other Person; all
loans, advances or other extensions of credit or capital contributions to any
Subsidiary or any other Person; and all other investments in securities of any
Person;
13
(vi) all license agreements, leases of personal
property, open purchase orders for raw materials, supplies, parts or services,
unfilled orders for the manufacture and sale of products and other contracts,
agreements or commitments;
(vii) all deposits, letters of credit and performance
and surety bonds;
(viii) all written technical information, data,
specifications, research and development information, engineering drawings,
operating and maintenance manuals, and materials and analyses prepared by
consultants and other third parties;
(ix) all Intellectual Property and licenses from
third Persons granting the right to use any Intellectual Property;
(x) all computer applications, programs and other
software, including operating software, network software, firmware, middleware,
design software, design tools, systems documentation and instructions;
(xi) all cost information, sales and pricing data,
customer prospect lists, supplier records, customer and supplier lists, customer
and vendor data, correspondence and lists, product literature, artwork, design,
development and manufacturing files, vendor and customer drawings, formulations
and specifications, quality records and reports and other books, records,
studies, surveys, reports, plans and documents;
(xii) all prepaid expenses, trade accounts and other
accounts and notes receivables;
(xiii) all rights under contracts or agreements, all
claims or rights against any Person arising from the ownership of any Asset, all
rights in connection with any bids or offers and all claims, choses in action or
similar rights, whether accrued or contingent;
(xiv) all rights under insurance policies and all
rights in the nature of insurance, indemnification or contribution;
(xv) all licenses (including radio and similar
licenses), permits, approvals and authorizations which have been issued by any
Governmental Authority; and
(xvi) interest rate, currency, commodity or other
swap, collar, cap or other hedging or similar agreements or arrangements.
14
Section 4.7 Contracts. "Contracts" means any contract, agreement,
lease, license, sales order, purchase order, instrument or other commitment that
is binding on any Person or any part of its property under applicable law.
Section 4.8 Delayed Transfer Assets. "Delayed Transfer Assets"
means any NPT Assets that are expressly provided in this Agreement, the Master
Separation and Sale Agreement or any other Ancillary Agreement to be transferred
after the date of this Agreement.
Section 4.9 Delayed Transfer Liabilities. Delayed Transfer
Liabilities means any NPT Liabilities that are expressly provided in this
Agreement, the Master Separation and Sale Agreement or any other Ancillary
Agreement to be transferred after the date of this Agreement.
Section 4.10 Governmental Approvals. "Governmental Approvals"
means any notices, reports or other filings to be made, or any consents,
registrations, approvals, permits or authorizations to be obtained from, any
Governmental Authority.
Section 4.11 Governmental Authority. "Governmental Authority"
means any federal, state, local, foreign or international court, government,
department, commission, board, bureau, agency, official or other regulatory,
administrative or governmental authority.
Section 4.12 Indemnification and Insurance Matters Agreement.
"Indemnification and Insurance Matters Agreement" means the Indemnification and
Insurance Matters Agreement attached as Exhibit J to the Master Separation and
Sale Agreement.
Section 4.13 Insurance Policies. "Insurance Policies" means
insurance policies pursuant to which a Person makes a true risk transfer to an
insurer.
Section 4.14 Intellectual Property. "Intellectual Property" has
the meaning set forth in the Master Technology Ownership and License Agreement
attached as Exhibit D-1 to the Master Separation and Sale Agreement.
Section 4.15 IPO Closing Date. "IPO Closing Date" has the meaning
set forth in the Master Separation and Sale Agreement.
Section 4.16 IPO Pricing Date. "IPO Pricing Date" has the meaning
set forth in the Master Separation and Sale Agreement.
Section 4.17 Liabilities. "Liabilities" means all debts,
liabilities, guarantees, assurances, commitments and obligations, whether fixed,
contingent or absolute, asserted or unasserted, matured or unmatured, liquidated
or unliquidated, accrued or not accrued, known or unknown, due or to become due,
whenever or however arising (including, without limitation, whether arising out
of any Contract or tort based on negligence or strict liability) and whether or
not the same would be required by generally accepted principles and accounting
policies to be reflected in financial statements or disclosed in the notes
thereto.
Section 4.18 Local Transfer Agreements. "Local Transfer
Agreements" has the meaning set forth in the Master Separation and Sale
Agreement.
15
Section 4.19 Master Separation and Sale Agreement. "Master Separation
and Sale Agreement" means the Master Separation and Sale Agreement by and
among STI, STC, SBV and NPT.
Section 4.20 NPT Balance Sheet. "NPT Balance Sheet" means the pro
forma combined balance sheet (including the notes thereto) of the NPT Business
as of [March 31], 2002, that is included in the IPO Registration Statement.
Section 4.21 NPT Contingent Gain. "NPT Contingent Gain" means any
claim or other right of a member of the Schlumberger Group or the NPT Group that
primarily relates to the NPT Business, whenever arising, against any Person
other than a member of the Schlumberger Group or the NPT Group, if and to the
extent that (i) such claim or right arises out of the events, acts or omissions
occurring prior to the Separation Date (based on then existing law) and (ii) the
existence or scope of the obligation of such other Person prior to the
Separation Date was not acknowledged, fixed or determined in any material
respect, due to a dispute or other uncertainty prior to the Separation Date or
as a result of the failure of such claim or other right to have been discovered
or asserted prior to the Separation Date. A claim or right meeting the foregoing
definition shall be considered a NPT Contingent Gain regardless of whether there
was any Action pending, threatened or contemplated prior to the Separation Date
with respect thereto. In the case of any claim or right a portion of which
arises out of events, acts or omissions occurring prior to the Separation Date
and a portion of which arises out of events, acts or omissions occurring on or
after the Separation Date, only that portion that arises out of events, acts or
omissions occurring prior to the Separation Date shall be considered a NPT
Contingent Gain. For purposes of the foregoing, a claim or right shall be deemed
to have accrued as of the Separation Date if all the elements of the claim
necessary for its assertion shall have occurred on or prior to the Separation
Date, such that the claim or right, were it asserted in an Action on or prior to
the Separation Date, would not be dismissed by a court on ripeness or similar
grounds. Notwithstanding the foregoing, none of (i) any Insurance Proceeds, (ii)
any Excluded Assets, (iii) any reversal of any litigation or other reserve, or
(iv) any matters relating to Taxes (which are governed by the Tax Sharing
Agreement) shall be deemed to be a NPT Contingent Gain.
Section 4.22 NPT Contingent Liability. "NPT Contingent Liability"
means any Liability, other than Liabilities for Taxes (which are governed by the
Tax Sharing Agreement), of a member of the Schlumberger Group or the NPT Group
that primarily relates to the NPT Business, whenever arising, to any Person
other than a member of the Schlumberger Group or the NPT Group, if and to the
extent that (i) such Liability arises out of the events, acts or omissions
occurring prior to the Separation Date and (ii) the existence or scope of the
obligation of a member of the Schlumberger Group or the NPT Group prior to the
Separation Date with respect to such Liability was not acknowledged, fixed or
determined in any material respect, due to a dispute or other uncertainty prior
to the Separation Date or as a result of the failure of such Liability to have
been discovered or asserted prior to the Separation Date (it being understood
that the existence of a litigation or other reserve with respect to any
Liability shall not be sufficient for such Liability to be considered
acknowledged, fixed or determined). In the case of any Liability a portion of
which arises out of events, acts or omissions occurring prior to the Separation
Date and a portion of which arises out of events, acts or omissions occurring on
or after the Separation Date, only that portion that arises out of events, acts
or omissions occurring prior to the Separation Date shall be considered a NPT
Contingent Liability. For purposes of the
16
foregoing, a Liability shall be deemed to have arisen out of events, acts or
omissions occurring prior to the Separation Date if all the elements necessary
for the assertion of a claim with respect to such Liability shall have occurred
on or prior to the Separation Date, such that the claim, were it asserted in an
Action on or prior to the Separation Date, would not be dismissed by a court on
ripeness or similar grounds. For purposes of clarification of the foregoing, the
parties agree that no Liability relating to, arising out of or resulting from
any obligation of any Person to perform the executory portion of any contract or
agreement existing as of the Separation Date, or to satisfy any obligation
accrued under any Plan (as defined in the Employee Matters Agreement) as of the
Separation Date, shall deemed to be a NPT Contingent Liability.
Section 4.23 NPT Contracts. "NPT Contracts" means the following
contracts and agreements to which Schlumberger is a party or by which it or any
of its Assets is bound, whether or not in writing, except for any such contract
or agreement that is contemplated to be retained by Schlumberger or any member
of the Schlumberger Group pursuant to any provision of this Agreement or any
other Ancillary Agreement:
(i) any contract or agreement entered into in the
name of, or expressly on behalf of, any division or business unit of NPT;
(ii) any contract or agreement that relates primarily
to the NPT Business;
(iii) any contract or agreement that is otherwise
expressly contemplated pursuant to this Agreement, the Master Separation
and Sale Agreement or any of the other Ancillary Agreements to be assigned
to NPT;
(iv) any guarantee, indemnity, representation,
warranty or other Liability of any member of the NPT Group or the
Schlumberger Group in respect of any other NPT Contract, any NPT Liability
or the NPT Business (including guarantees of financing incurred by
customers or other third parties in connection with purchases of products
or services from the NPT Business); and
(v) any NPT OFL.
Section 4.24 NPT Group. "NPT Group" has the meaning set forth in the
Master Separation and Sale Agreement.Section 4.32 OFLs. "OFLs" mean all
liabilities, obligations, contingencies, instruments and other Liabilities of
any member of the Schlumberger Group of a financial nature with third parties
existing on the date hereof or entered into or established between the date
hereof and the Separation Date, including any of the following:
(i) foreign exchange contracts;
(ii) letters of credit;
(iii) guarantees of third party loans to customers;
17
(iv) surety bonds (excluding surety for workers'
compensation self-insurance);
(v) interest support agreements on third party loans
to customers;
(vi) performance bonds or guarantees issued by third
parties;
(vii) swaps or other derivatives contracts; and
(viii) recourse arrangements on the sale of receivables
or notes.
Section 4.25 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 4.26 Sale. "Sale" has the meaning set forth in the Master
Separation and Sale Agreement.
Section 4.27 Schlumberger Group. "Schlumberger Group" has the meaning
set forth in the Master Separation and Sale Agreement.
Section 4.28 Security Interest. "Security Interest" means any
mortgage, security interest, pledge, lien, charge, claim, option, right to
acquire, voting or other restriction, right-of-way, covenant, condition,
easement, encroachment, restriction on transfer, or other encumbrance of any
nature whatsoever.
Section 4.29 Taxes. "Taxes" has the meaning set forth in the Tax
Sharing Agreement.
18
IN WITNESS WHEREOF, each of the parties has caused this General
Assignment and Assumption Agreement to be executed on its behalf by its officers
thereunto duly authorized on the day and year first above written.
Schlumberger Technologies, Inc. NPTest, Inc.
By: __________________________________ By: __________________________________
Name: Name:
Title: Title:
Schlumberger BV
By:___________________________________
Name:
Title:
Schlumberger Technology Corporation
By:___________________________________
Name:
Title:
19
SCHEDULES
----------
Schedule 1.1(c) Delayed Transfer Assets and Liabilities
Schedule 1.2(a)(xii) Specific NPT Assets to be Transferred
Schedule 1.2(b)(i) Excluded Assets
Schedule 1.3(a)(vi) Divested Businesses Which Contain Liabilities to
be Transferred to NPT
Schedule 1.3(a)(vii) Specific NPT Liabilities
Schedule 1.3(b)(i) Excluded Liabilities
20
Schedule 1.1(c) Delayed Transfer Assets and Liabilities
Schedule 1.2(a)(xii) Specific NPT Assets to be Transferred
Schedule 1.2(b)(i) Excluded Assets
Schedule 1.3(a)(vi) Divested Businesses Which Contain Liabilities to be
Transferred to NPT
Schedule 1.3(a)(vii) Specific NPT Liabilities
Schedule 1.3(b)(i) Excluded Liabilities
