EXHIBIT 2.11
ENVIRONMENTAL MATTERS AGREEMENT
Between
Hewlett-Packard Company
and
Agilent Technologies, Inc.
_________________________, 1999
TABLE OF CONTENTS
Page
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ARTICLE I. FACILITY REMEDIATION.......................................... 1
Section 1.1. Responsibility For Remediation..................... 1
Section 1.2. Standard of Performance............................ 2
Section 1.3. Performance and Planning of Remedial Activities.... 2
Section 1.4. Compliance With Laws............................... 3
Section 1.5. Safety............................................. 3
Section 1.6. Confidentiality.................................... 4
Section 1.7. Insurance.......................................... 4
Section 1.8. Construction Activities and Repair Activities...... 4
ARTICLE II. SITE ACCESS AND SUPPORT...................................... 5
Section 2.1. Site Access........................................ 5
Section 2.2. Utilities and Support Services..................... 6
Section 2.3. Site Activities.................................... 6
ARTICLE III. REGULATORY PROCESSES........................................ 6
Section 3.1. Procedures For Remediation and Other Work.......... 6
Section 3.2. Communications..................................... 7
Section 3.3. Regular Meetings................................... 7
Section 3.4. HP Project Managers/Agilent Liaison................ 7
Section 3.5. Inspection......................................... 7
Section 3.6. Notifications...................................... 7
Section 3.7. Dispute Resolution................................. 8
ARTICLE IV. INDEMNITY AND LIENS.......................................... 8
Section 4.1. Indemnity.......................................... 8
Section 4.2. Liens.............................................. 9
Section 4.3. Limitation on Liability............................ 9
ARTICLE V. MISCELLANEOUS................................................. 9
Section 5.1. Sale of an Agilent Schedule 2 Facility............. 9
Section 5.2. Notices............................................ 9
Section 5.3. Governing Law...................................... 10
Section 5.4. Counterparts....................................... 10
Section 5.5. Parties in Interest................................ 10
Section 5.6. Assignment......................................... 11
Section 5.7. Authority.......................................... 11
Section 5.8. Interpretation..................................... 11
Section 5.9. Amendments......................................... 11
Section 5.10. Severability....................................... 11
Section 5.11. Failure or Indulgence Not Waiver................... 12
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TABLE OF CONTENTS
(continued)
Page
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Section 5.12. Entire Agreement................................ 12
Section 5.13. Authority....................................... 12
ARTICLE VI. DEFINITIONS............................................... 12
Section 6.1. Agilent Group................................... 12
Section 6.2. Agilent Indemnitees............................. 12
Section 6.3. Agilent Schedule 2 Facilities................... 12
Section 6.4. Authorized Tenant............................... 12
Section 6.5. Claims Committee................................ 13
Section 6.6. Construction Activity........................... 13
Section 6.7. Environmental Conditions........................ 13
Section 6.8. Environmental Laws.............................. 13
Section 6.9. Exacerbation.................................... 13
Section 6.10. Governmental Authority.......................... 13
Section 6.11. Hazardous Materials............................. 13
Section 6.12. HP Group........................................ 13
Section 6.13. HP Indemnitees.................................. 14
Section 6.14. HP's Remediation Obligation..................... 14
Section 6.15. Incremental Construction Costs.................. 14
Section 6.16. Losses.......................................... 14
Section 6.17. Person.......................................... 14
Section 6.18. Release......................................... 14
Section 6.19. Remedial Activities............................. 14
Section 6.20. Remedial Activity Plans......................... 14
Section 6.21. Repair Activity................................. 15
EXHIBITS
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Exhibit 1 - Agilent Schedule 2 Facilities
Exhibit 2 - Orders from a Governmental Authority
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ENVIRONMENTAL MATTERS AGREEMENT
This Environmental Matters Agreement (this "Agreement") is entered into on
_________, 1999 by and between Hewlett-Packard Company, a Delaware corporation
("HP"), and Agilent Technologies, Inc., a Delaware corporation ("Agilent").
Capitalized terms used in this Agreement and not otherwise defined in this
Agreement shall have the meaning ascribed to them in the Separation Agreement,
Assignment Agreement or Indemnification Agreement (as defined below), as
applicable.
RECITALS
WHEREAS, HP hereby and by certain other instruments of even date herewith
transfers or will transfer to Agilent effective as of the Separation Date, the
Agilent Business in accordance with the Master Separation and Distribution
Agreement dated as of August 12, 1999 between the parties ("Separation
Agreement") and the Ancillary Agreements, including, but not limited to the
General Assignment and Assumption Agreement ("Assignment Agreement"), attached
as Exhibit C to the Separation Agreement, and the Indemnification and Insurance
Matters Agreement ("Indemnification Agreement"), attached as Exhibit K to the
Separation Agreement. It is the intent of the parties hereto, by this Agreement
and the other agreements and instruments provided for in the Separation
Agreement, to convey to Agilent the Agilent Business.
WHEREAS, under the terms of, the Indemnification Agreement, HP has agreed
to indemnify, defend and hold harmless Agilent from and against costs associated
with certain Environmental Conditions at the Agilent Schedule 2 Facilities.
WHEREAS, HP hereby agrees to perform remedial activities at the Agilent
Schedule 2 Facilities, consistent with such indemnity obligations and under the
terms and conditions of this Agreement.
WHEREAS, HP and Agilent desire to establish general requirements and mutual
obligations with respect to the performance by HP of remedial activities at the
Agilent Schedule 2 Facilities as set forth above.
NOW THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I.
FACILITY REMEDIATION
Section 1.1. Responsibility For Remediation. At its own cost and expense, HP
shall perform, or cause to be performed, any and all Remedial Activities that
are necessary to fulfill HP's Remediation Obligation. To the extent legally
permitted, HP shall also take all responsibility as generator for any Hazardous
Materials generated by performance of these Remedial Activities. To the extent
required by Environmental Laws, HP will also obtain any permits, authorizations
or approvals necessary to
conduct HP's Remediation Obligation, except such permits, if any, as must under
applicable laws be obtained by a member of the Agilent Group, or otherwise by an
owner or tenant of the relevant Agilent Schedule 2 Facility.
Section 1.2. Standard of Performance. HP's Remediation Obligation shall be
performed in accordance with: (i) any applicable Remedial Activity Plans, as
approved by the Governmental Authority; and (ii) all applicable Environmental
Laws as enforced by the Governmental Authority[ies] with jurisdiction over the
Remedial Activities or HP's Remediation Obligation. Notwithstanding the
foregoing or anything to the contrary in this Agreement, in the event Agilent or
any successor-in-interest to Agilent at an Agilent Schedule 2 Facility decides
to change the use of such facility from its existing use on the Separation Date
(for example from industrial to commercial use or commercial to residential
use), in no event shall HP's Remediation Obligation require HP to comply with
any stricter standard applied to such Agilent Schedule 2 Facility as a result of
such change in use. Further, HP's Remedial Activities shall be performed in such
a manner as to minimize, to the greatest extent feasible, the impact on the use
of the Agilent Schedule 2 Facility and the ongoing operations of any member of
the Agilent Group or other Authorized Tenant of the Agilent Schedule 2 Facility.
Section 1.3. Performance and Planning of Remedial Activities.
(a) Information to be Provided by HP to Agilent. HP shall provide to
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Agilent in a timely fashion, a copy of: (i) any documents submitted to any
Governmental Authority regarding any Remedial Activities performed or to be
performed by or on behalf of HP under this Agreement, and (ii) analytical
results of any environmental sampling conducted on any Agilent Schedule 2
Facilities by or on behalf of HP under this Agreement.
(b) Agilent Opportunity to Comment. HP shall provide Agilent with a
------------------------------
reasonable opportunity to timely review and comment upon, prior to their
submission to the Governmental Authority, any report, plan, proposal or other
document that: (i) proposes the performance of any Remedial Activities that
would disrupt or interfere with the then current day to day operations of any
Authorized Tenant of the Agilent Schedule 2 Facilities; (ii) involves the
construction on any of the Agilent Schedule 2 Facilities of any above ground
remedial fixtures (other than repair and maintenance of any such fixtures or
equipment as are present at the Agilent Schedule 2 Facilities on the Separation
Date); (iii) proposes any remedy or closure at any of the Agilent Schedule 2
Facilities which allows Environmental Conditions to remain on the Agilent
Schedule 2 Facility after remediation has been completed; or (iv) involves the
setting of health and safety standards with respect to exposure to Hazardous
Materials at any Agilent Schedule 2 Facility.
(c) Agilent Participation. Agilent, or its designated representative,
---------------------
shall have the right, but not the obligation, to be present and at any meeting
with or hearing before any Governmental Authority regarding any proposed
Remedial Activities or proposed Remedial Activity Plans described in Section 1.3
(b) above. HP and Agilent further agree to confer in good faith in advance of
any such meeting or hearing with respect to any outstanding matters to be
addressed at such meeting or hearing and for the purpose of resolving such
matter to their mutual satisfaction and presenting a unified position to the
Governmental Authority, to the extent consistent with the respective positions
of the parties. If the parties cannot reach agreement after such consultation
and Agilent reasonably
determines that any proposed Remedial Activities or Remedial Activity Plans will
have an adverse impact on the use of, or operations on a particular Agilent
Schedule 2 Facility, then Agilent shall have the right to make objections to
such proposals to the relevant Governmental Authority.
(d) Consultation With Agilent. HP agrees to consult fully with Agilent
-------------------------
regarding any proposed Remedial Activities or proposed Remedial Activity Plans
described in Section 1.3(b) above. HP and Agilent agree to use good faith best
efforts to reach agreement on such Remedial Activities or Remedial Activity
Plans. In the event that the parties cannot reach agreement after such
consultation and Agilent reasonably determines that any proposed Remedial
Activities or Remedial Activity Plans will have an adverse impact on the use of,
or operations on a particular Agilent Schedule 2 Facility, Agilent shall have
the right to make objections to such proposals to the relevant Governmental
Authority. The parties also agree that in the event they cannot reach agreement,
HP may submit to the Governmental Authority its proposed Remedial Activities or
proposed Remedial Activity, as required to meet any deadline which is not, by
its terms, subject to extension, to avoid fines and penalties or for the
protection of human health, and HP may also proceed with implementation of any
aspects of such Remedial Activities or Remedial Activity Plans.
(e) Performance of the Remedial Activities. Following approval of any
--------------------------------------
Remedial Activity Plans by the applicable Governmental Authority, HP shall
proceed with appropriate diligence and expedition to implement and complete the
Remedial Activities in accordance with the Remedial Activity Plans and this
Agreement.
(f) Agilent's Assistance. Agilent shall use, or cause the relevant member
--------------------
of the Agilent Group or other Authorized Tenant of the Agilent Schedule 2
Facilities to use, its reasonable best efforts to assist HP in the development,
approval, and implementation of Remedial Activity Plans in accordance with
applicable laws, including applicable Environmental Laws.
Section 1.4. Compliance With Laws. HP shall require that its employees,
consultants, contractors, and subcontractors perform all Remedial Activities
under this Agreement in accordance with applicable laws, including applicable
Environmental Laws.
Section 1.5. Safety. HP shall be responsible for the maintenance of order and
discipline of its employees, consultants, contractors, and subcontractors
engaged in the performance of Remedial Activities under this Agreement, and HP
shall require that such Remedial Activities be performed in compliance, in all
material respects, with applicable laws, regulations, rules, ordinances, codes
or requirements of any Governmental Authority (including those relating to
occupational safety and health). Except in case of emergency and to the extent
that prior notice of such policies is given to HP, HP also will require its
employees, consultants, contractors, and subcontractors engaged in performance
of Remedial Activities on behalf of HP under this Agreement to observe any
health, safety and environmental and site security policies established by
Agilent, or by any other Authorized Tenant, for third-party contractors and
other non-employees who perform work or services at the Agilent Schedule 2
Facility. Agilent shall have the right to require that a contractor,
subcontractor or other representative of HP discontinue any Remedial Activities
to the extent such activities pose an imminent risk to property, health, safety
or the environment. In such instance, Agilent shall immediately notify HP by
telephone that it has taken such action.
Section 1.6. Confidentiality. HP shall treat as confidential property and not
disclose to others during or subsequent to the term of this Agreement, any
information marked "confidential" regarding any Agilent Group member's or
Agilent Schedule 2 Facility Authorized Tenant's plans, programs, facility,
processes, products, costs, equipment, operations or customers which may come
into the knowledge of HP or its employees, consultants, contractors or
subcontractors, unless required by law or ordered to disclose such by a court or
administrative body after prior notice to Agilent of the request or order to
disclose. HP shall also treat as confidential any non-public information that is
disclosed to HP regarding matters covered under Section 5.1, including, without
limitation, the identity of any potential purchaser of an Agilent Schedule 2
Facility and any terms and conditions of the purchase and sale agreement for an
Agilent Schedule 2 Facility. Agilent shall treat as confidential any non-public
information relating to HP that is disclosed to Agilent regarding matters
covered under Section 5.1, including, without limitation, any terms and
conditions of the purchase and sale agreement for an Agilent Schedule 2 Facility
affecting HP's Remediation Obligation. Agilent shall treat as confidential any
proprietary remediation technology or information utilized by HP in performance
of this Agreement. This provision shall not apply to any information which at
the time of disclosure is publicly available or in the public domain through no
fault of the disclosing party. Upon request, HP and Agilent agree to require
their consultants, contractors and subcontractors who will receive confidential
information to sign a confidentiality agreement substantially similar to the
terms of this provision.
Section 1.7. Insurance.
(a) The consultants, contractors and subcontractors who perform Remedial
Activities under this Agreement shall provide and maintain (or HP shall provide
and maintain), comprehensive general liability insurance and comprehensive
automobile liability insurance naming Agilent, and any Authorized Tenant of the
applicable Agilent Schedule 2 Facility, as additional insureds and providing
coverage for claims for damages for bodily injury, including wrongful death, and
property damage which may arise from or in connection with the performance of
any Remedial Activities. Minimum amounts required are:
Bodily Injury - $2,000,000 each person, $2,000,000 each accident
Property Damage - $2,000,000 each accident
Errors and Omissions - $1,000,000 each occurrence
Workers' Compensation Insurance - In the amount required by law
(b) Before commencing Remedial Activities at any Agilent Schedule 2
Facility, the party providing the insurance set forth in Section 1.7(a) above
shall provide Agilent with certificates of insurance or other appropriate
evidence that the insurance required by Section 1.7(a) above has been obtained.
Section 1.8. Construction Activities and Repair Activities.
(a) The provisions of this Section 1.8 shall apply to any Construction
Activity or Repair Activity by Agilent or by any Authorized Tenant which
involves disturbance or invasion of any Environmental Condition that is part of
HP's Remediation Obligation.
(b) If testing conducted in the proposed construction or repair area
before initiation of the Construction Activity or the Repair Activity
demonstrates that the proposed construction or repair area contains an
Environmental Condition in the soil or subsurface that is part of HP's
Remediation Obligation and, further, if Agilent provides notice to HP of such
Environmental Condition and of said proposed Construction Activity or Repair
Activity in the manner provided in Section 5.2, then HP shall (i) promptly and
diligently conduct HP's Remediation Obligation of such Environmental Condition
identified by the testing to the extent required by the standard of performance
set out in Section 1.2 above; and (ii) HP shall reimburse Agilent or the
Authorized Tenant for all reasonable Incremental Construction Costs resulting
from such Construction Activity or Repair Activity. In the event Agilent or an
Authorized Tenant anticipates incurring Incremental Construction Costs, Agilent
shall provide HP reasonable advance notice before the costs are incurred.
(c) In the event, as a result of any Construction Activity or Repair
Activity, any of the then existing above ground or underground remediation
systems (including, without limitation, pump and treat equipment, underground
piping, monitoring or extraction xxxxx, carbon absorption systems and the like)
are damaged or destroyed, or are required to otherwise be relocated, Agilent
shall reimburse HP for all costs associated with such damage, destruction or
removal.
ARTICLE II.
SITE ACCESS AND SUPPORT
Section 2.1. Site Access.
(a) Agilent shall afford or cause to be afforded to HP and to HP's
employees, consultants, contractors and subcontractors, reasonable access on the
terms set forth in this Section 2.1 to all of the Agilent Schedule 2 Facilities
for the purpose of performing Remedial Activities:
(i) HP shall provide reasonable advance notice to the Agilent
Liaison (as defined in Sections 3.4 and 5.2) of the need for access to any of
the Agilent Schedule 2 Facilities, including the purpose and scope of work to be
performed, the nature and duration of the access, and such other information as
Agilent may reasonably request.
(ii) Remedial Activities for which Agilent shall be responsible for
providing access include, without limitation, borings, excavations, monitoring,
assessments and evaluations, and construction, installation, operation, and
maintenance of necessary equipment and supporting facilities for the treatment
of soil and groundwater, and all other Remedial Activities, in all cases as
described in the applicable Remedial Activity Plans or as otherwise reasonably
required to fulfill HP's Remediation Obligation.
(b) Agilent shall provide HP with access to and use of those areas
necessary for HP's performance of Remedial Activities under this Agreement,
including areas for groundwater treatment
equipment and storage and staging of materials and equipment. HP agrees that
with respect to its use of any portion of an Agilent Schedule 2 Facility for
Remedial Activities, HP shall provide secondary containment for any above ground
treatment systems and any Hazardous Materials to be stored on-site overnight or
for any longer period (excluding contaminated soils which shall be safely
maintained and secured until removal from the Agilent Schedule 2 Facility). HP
shall also provide and be responsible for proper security with respect to such
storage and treatment system areas.
Section 2.2. Utilities and Support Services. It is HP's intent not to utilize
any Agilent utilities or similar support services for implementation of HP's
Remediation Obligation under this Agreement. If HP requests any such utilities
or support services from Agilent for use by HP, or HP's employees, consultants,
contractors, and subcontractors engaged in the performance of Remedial
Activities under this Agreement, Agilent agrees that it will negotiate in good
faith with HP to reach an agreement to provide such utilities and support
services.
Section 2.3. Site Activities. Agilent, its employees, consultants, lessees,
contractors, subcontractors or others under Agilent's control or direction, and
any Authorized Tenant of any portion of the Agilent Schedule 2 Facility, shall
use, operate, and conduct their activities and operations at the Agilent
Schedule 2 Facility in a manner that will interfere to the least extent feasible
with the Remedial Activities conducted by or on behalf of HP under this
Agreement. Agilent shall provide prior written notice to the HP Project Manager
(as defined in Sections 3.4 and 5.2) of the need for, scope and duration of any
activity, process, or operation at the Agilent Schedule 2 Facility (including
without limitation excavation, demolition, landscaping or groundwater pumping)
that could have a material adverse effect on the performance of Remedial
Activities by HP. Agilent shall provide such notice promptly upon becoming aware
of such potential adverse effect. Agilent shall also provide in a timely fashion
to HP any analytical results of soil or groundwater sampling at an Agilent
Schedule 2 Facility performed by or on behalf of Agilent, or which otherwise
comes in to the possession of Agilent.
ARTICLE III.
REGULATORY PROCESSES
Section 3.1. Procedures For Remediation and Other Work.
(a) The parties hereto retain all rights to appeal, seek relief from, or
otherwise contest any order or other action by any Governmental Authority with
jurisdiction over the matters that are the subject of this Agreement, in a
manner consistent with this Agreement and the Indemnification Agreement.
(b) Agilent agrees to support and cooperate with HP, as necessary, in any
such challenge by HP of a requirement as to which Agilent has previously agreed
with HP. HP agrees that it will not challenge any decision in a manner which
will interfere with the operation of the applicable Agilent Schedule 2 Facility.
HP further agrees to be responsible for any penalties which may accrue against
or be incurred by Agilent or any member of the Agilent Group or Authorized
Tenant of the Agilent Schedule 2 Facility as a result of such challenge by HP
during the pendency of any such challenge and
to promptly pay any such penalties within the time permitted by law but in any
event promptly after exhaustion of any administrative or judicial appeals.
Section 3.2. Communications. In the event of any written notices or other
written communication or action by a Governmental Authority relating to or
affecting the Remedial Activities or any Remedial Activity Plans, or any
communication from the public evidencing any concerns about the Remedial
Activities or Environmental Conditions, the party receiving such notice,
communication, or action shall provide a copy to the other party in a timely
fashion (or, with respect to any written notice by a Governmental Authority that
any Remedial Activities or Environmental Conditions violate Environmental Laws,
within five (5) business days of the receipt of such notice) in accordance with
Section 5.2. Subject to Agilent's rights under Sections 1.3(c) and (d) above, HP
shall be responsible for all contacts and communications with Governmental
Authorities in connection with HP's Remediation Obligation and any other matters
arising under this Agreement which are the obligation of HP. HP also agrees to
promptly reimburse Agilent for any reasonable "out-of-pocket" costs (excluding
any internal Agilent charges for administration, management or supervision or
other internal charges) incurred by Agilent in providing support to HP during
such challenge.
Section 3.3. Regular Meetings. HP shall schedule, as appropriate, regular
meetings with Agilent to provide information on the status of HP's Remediation
Obligation, including without limitation, the development, approval, and
implementation of Remedial Activity Plans, and to consult with and coordinate
with Agilent HP's Remedial Activities under this Agreement.
Section 3.4. HP Project Managers/Agilent Liaison. For consultation and
coordination with Agilent regarding HP's Remedial Activities under this
Agreement, and to manage their respective activities and responsibilities under
this Agreement, HP shall designate a Project Manager and Agilent shall designate
an Agilent Liaison for each Agilent Schedule 2 Facility. Designation of a
Project Manager and of an Agilent Liaison shall be by notice as provided in
Section 5.2 of this Agreement. HP may replace any of its Project Managers, and
Agilent may replace any of its Liaisons, by providing the same notice under
Section 5.2.
Section 3.5. Inspection. Agilent shall have the right to inspect and observe the
Remedial Activities performed by or on behalf of HP under this Agreement, at
reasonable times and after reasonable prior notice to HP. Inspection or failure
to inspect by Agilent shall not constitute a waiver of any provision of this
Agreement, or of any of Agilent's rights hereunder. However, Agilent's right or
exercise of inspection shall not extend to or include any right or authority to
supervise or direct any of HP's employees, consultants, contractors or
subcontractors in their performance of any Remedial Activities.
Section 3.6. Notifications. HP, Agilent, and any Authorized Tenant shall notify
the other parties within ten (10) days following the occurrence of any Release
that causes contamination to soil or groundwater on any Agilent Schedule 2
Facility or otherwise: (i) requires investigation, monitoring, remediation or
removal under the Environmental Laws; (ii) may adversely affect any Remedial
Activities or Remedial Activity Plans; (iii) is reported to such party's
insurance carrier; or (iv) is reported to any Governmental Authority under
Environmental Laws. HP also agrees to give Agilent prompt advance notice (if and
to the extent HP has notice) of any inspection to be performed on any
Agilent Schedule 2 Facility by any Governmental Authority in connection with the
Remedial Activities or HP's Remediation Obligation. Agilent also agrees to give
HP prompt advance notice (if and to the extent Agilent has notice) of any
inspection to be performed on any Agilent Schedule 2 Facility by any
Governmental Authority with jurisdiction over the Remedial Activities or HP's
Remediation Obligation.
Section 3.7. Dispute Resolution. If a dispute or disagreement occurs between HP
and Agilent concerning any matter arising under this Agreement, the HP Project
Manager and the Agilent Liaison shall consult and attempt to resolve the dispute
or disagreement. If the HP Project Manager and Agilent Liaison are unable to
reach an agreement on the dispute or disagreement within fifteen (15) days (or
such other longer period of time as may be mutually agreed to in writing by the
HP Project Manager and the Agilent Liaison), then the dispute or disagreement
shall be referred to the Claims Committee. If the Claims Committee is unable to
reach an agreement on the dispute within thirty (30) days, then the dispute
shall be handled in accordance with the Dispute Resolution procedures set forth
in the Section 5.9 of the Separation Agreement. In no event shall the existence
of a dispute or disagreement between HP and Agilent, or their consultation under
this Section 3.7 to attempt to resolve it, delay the filing or submission of any
document, or the performance of any action or activity, beyond the legally
required deadline nor prevent either party from pursuing any remedy to which it
is entitled under the Indemnification Agreement.
ARTICLE IV.
INDEMNITY AND LIENS
Section 4.1. Indemnity.
(a) Indemnification by HP. In addition to, and without in any way
limiting the indemnification obligations of HP in the Indemnification Agreement,
HP shall protect, indemnify, defend and hold harmless the Agilent Indemnitees
and any Authorized Tenant from and against any Liabilities and Environmental
Actions to the extent arising at any time out of, relating to, or resulting from
the negligence or willful misconduct of any member of the HP Group or their
agents, employees, consultants or contractors in connection with the Remedial
Activities or any other obligations of HP under this Agreement.
(b) Indemnification by Agilent. In addition to, and without in any way
limiting the indemnification obligations of Agilent in the Indemnification
Agreement, Agilent shall protect, indemnify, defend and hold harmless the HP
Indemnitees from and against any Liabilities and Environmental Actions to the
extent arising at any time out of, relating to, or resulting from: (i)
Exacerbation, to the extent caused by the operations or activities of any member
of the Agilent Group or their agents, employees, consultants, contractors or
Authorized Tenants occurring at any Agilent Schedule 2 Facility; or (ii) the
negligence or willful misconduct of any member of the Agilent Group, or their
agents, employees, consultants, contractors or Authorized Tenants at any Agilent
Schedule 2 Facility in connection with the Remedial Activities or any
obligations of Agilent under this Agreement.
Section 4.2. Liens. HP shall not permit or suffer any mechanics' or
materialmen's or other liens arising from the provision of labor or materials
for work performed as part of or in connection with any Remedial Activities
undertaken by or on behalf of HP under this Agreement. If Agilent becomes aware
of any such liens, Agilent shall provide prompt notice of said lien to HP, but
failure to provide such notice shall relieve HP from its obligations only to the
extent of the prejudice caused thereby. If any such liens attach or claims
therefor are made, then, within ten (10) days after receipt of notice thereof,
HP will procure the discharge thereof by payment, bond, or such other means as
may be required or permitted by applicable law.
Section 4.3. Limitation on Liability. IN NO EVENT SHALL ANY MEMBER OF THE
AGILENT GROUP OR ANY MEMBER OF THE HP GROUP BE LIABLE TO THE OTHER UNDER THIS
ARTICLE IV 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 UNDER SECTION 4.1 WITH RESPECT TO ANY LOSSES
ASSERTED AGAINST AN INDEMNIFIED PARTY BY ANY THIRD PARTIES (INCLUDING, WITHOUT
LIMITATION, ANY GOVERNMENTAL AUTHORITIES).
ARTICLE V.
MISCELLANEOUS
Section 5.1. Sale of an Agilent Schedule 2 Facility. In the event that any
member of the Agilent Group decides to sell an Agilent Schedule 2 Facility at
which HP (or its agents or permitted assignees) is continuing to perform
Remedial Activities, Agilent shall promptly notify HP of the intent to sell.
Agilent shall permit HP to: (i) participate in the negotiations with third
parties regarding environmental issues and environmental disclosures related to
the sale of the Agilent Schedule 2 Facility; and (ii) promptly review and
comment to Agilent or the third party upon any portion of a draft purchase and
sale agreement for an Agilent Schedule 2 Facility that addresses environmental
liabilities and obligations so that HP has the reasonable opportunity to
minimize any adverse impact of the sale of an Agilent Schedule 2 Facility on
HP's Remediation Obligations; provided that HP shall not have the right to
prevent Agilent from selling the Agilent Schedule 2 Facility.
Section 5.2. Notices.
(a) All notices or other communications hereunder shall be made in writing
and shall be given either by personal delivery, by nationally recognized
overnight courier (with charges prepaid) or by facsimile transmission (with
telephone confirmation), and shall be deemed to have been given or made if
personally delivered, on the day of such personal delivery; if sent by overnight
courier, on the next business day following the date deposited with such
overnight courier service; or if by facsimile transmission, on the business day
transmitted to receiving facsimile machine with receipt confirmed by
telephone, in each case addressed to the respective parties at the following
addresses (or such other address for a party as shall be specified by like
notice):
If to HP:
[List one general contact to notify at HP, and if applicable one specific
contact at the relevant member of the HP for each Agilent Schedule 2 Facility]
Attention:
Telephone:
Facsimile:
If to Agilent:
[List one general contact to notify at Agilent, and if applicable one
specific contact at the relevant member of the Agilent Group for each Agilent
Schedule 2 Facility]
Attention:
Telephone:
Facsimile:
(b) Notice provided, as specified in this section, to the HP Project
Manager or Agilent Liaison, as applicable, shall also satisfy the requirements
of this section.
(c) Either party may change its address or designated individual for
notice under this section by delivery of written notice to the other party as
provided in this section.
Section 5.3. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware as to all matters
regardless of the laws that might otherwise govern under principles of conflicts
of laws applicable thereto.
Section 5.4. 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 5.5. Parties in Interest. This Agreement shall be binding upon HP,
HP's Subsidiaries, Agilent and Agilent's Subsidiaries. This Agreement shall
inure solely to the benefit of the Agilent Indemnitees and the HP Indemnitees
and their respective permitted assigns, and except as set forth in this Section
5.5, 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.
HP hereby agrees to execute, for the benefit of any Agilent Indemnitee,
such documents as may be reasonably requested by such Agilent Indemnitee,
evidencing HP's agreement that the obligations of HP set forth in this Agreement
inure to the benefit of and are enforceable by such Agilent Indemnitee. Agilent
hereby agrees to execute, for the benefit of any HP Indemnitee, such documents
as may be reasonably requested by such HP Indemnitee, evidencing Agilent's
agreement that the obligations of Agilent set forth in this Agreement inure to
the benefit of and are enforceable by such HP Indemnitee.
Section 5.6. Assignment. Neither party may assign this Agreement without the
express written consent of the other party, which consent can only be withheld
if the party denying consent, in the reasonable exercise of its discretion,
determines that such assignment would materially increase its obligations, or
materially diminish its rights under this Agreement. This Agreement shall be
deemed to constitute a separate Agreement for each Agilent Schedule 2 Facility
such that the Agreement can be separately assigned to a third party by either HP
or Agilent (subject to the conditions of this Section 5.6) with respect to one
or more Agilent Schedule 2 Facilit[ies], and not assigned as to other Agilent
Schedule 2 Facilities.
Section 5.7. 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 5.8. 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 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 5.9. Amendments. 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
this Agreement.
Section 5.10. Severability. If any term or other provision of this Agreement or
the Schedules or Exhibits attached hereto is determined by a nonappealable
decision 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 any
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 5.11. Failure or Indulgence Not Waiver. 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.
Section 5.12. Entire Agreement. This Agreement, the Master Separation
Agreement, the other Ancillary Agreements and the Exhibits and Schedules
attached hereto and thereto, constitutes 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 5.13. 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.
ARTICLE VI.
DEFINITIONS
Section 6.1. Agilent Group. "Agilent Group" means Agilent, each Subsidiary
and Affiliated Company of Agilent immediately after the Separation Date or that
is contemplated to be a Subsidiary or Affiliated Company of Agilent pursuant to
the Non-US Plan and each Person that becomes a Subsidiary or Affiliate Company
of Agilent after the Separation Date.
Section 6.2. Agilent Indemnitees. "Agilent Indemnitees" means Agilent, each
member of the Agilent Group and each of their respective directors, officers and
employees.
Section 6.3. Agilent Schedule 2 Facilities. "Agilent Schedule 2 Facilities"
means the real property, groundwater, surface water and improvements thereon
which shall be owned or occupied by a member of the Agilent Group on and after
the Separation Date and which are identified on a disclosure schedule entitled
"The Agilent Schedule 2 Facilities", which schedule shall be delivered to
Agilent by HP on the Separation Date and attached to this Agreement as
Exhibit 1.
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Section 6.4. Authorized Tenant. "Authorized Tenant" means, any owner, lessee,
sublessee or other party with a contractual right to occupy all or any portion
of an Agilent Schedule 2 Facility (or their agents, employees, consultants,
contractors) during the period of time that any Agilent Group
member has the contractual right to occupy (as an owner, tenant or otherwise)
such Agilent Schedule 2 Facility.
Section 6.5. Claims Committee. "Claims Committee" means a committee composed
of (i) either the General Counsel or Associate General Counsel of HP and (i)
either the General Counsel or Associate General Counsel of Agilent.
Section 6.6. Construction Activity. "Construction Activity" means any
expansion or modification of any existing improvement or construction of a new
improvement by any member of the Agilent Group or any Authorized Tenant on any
Agilent Schedule 2 Facility.
Section 6.7. Environmental Conditions. "Environmental Conditions" means the
presence in the environment, including the soil, groundwater, surface water or
ambient air, of any Hazardous Material at a level which requires investigation
or remediation (including, without limitation, investigation, study, health or
risk assessment, monitoring, removal, treatment or transport) under any
Environmental Laws.
Section 6.8. Environmental Laws. "Environmental Laws" means all laws and
regulations of any Governmental Authority with jurisdiction that relate to the
protection of the environment (including ambient air, surface water, ground
water, land surface or subsurface strata) including laws and regulations
relating to the Release of Hazardous Materials, or otherwise relating to the
treatment, storage, disposal, transport or handling of Hazardous Materials, or
to the exposure of any individual to a Release of Hazardous Materials.
Section 6.9. Exacerbation. "Exacerbation" means any exacerbation, aggravation
or worsening of any Environmental Conditions on, under or about any of the
Agilent Schedule 2 Facilities that is caused by any member of the Agilent Group
or an Authorized Tenant to such an extent that: (i) Remedial Activities that
were not previously required as part of HP's Remediation Obligation become
necessary to fulfill HP's Remediation Obligation, or (ii) HP otherwise incurs
additional costs with respect to HP's Remediation Obligation.
Section 6.10. 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 6.11. Hazardous Materials. "Hazardous Materials" means chemicals,
pollutants, contaminants, wastes, toxic substances, radioactive and biological
materials, hazardous substances, petroleum and petroleum products or any
fraction thereof.
Section 6.12. HP Group. "HP Group" means HP, each Subsidiary and Affiliated
Company of HP (other than any member of the Agilent Group) immediately after the
Separation Date, after giving effect to the Non-US Plan and each Person that
becomes a Subsidiary or Affiliate Company of HP after the Separation Date.
Section 6.13. HP Indemnitees. "HP Indemnitees" means HP, each member of the HP
Group and each of their respective directors, officers and employees.
Section 6.14. HP's Remediation Obligation. "HP's Remediation Obligation" means
all Remedial Activities (as defined below) which are necessary or required in
order to comply with and fulfill Environmental Laws (including without
limitation the orders of Governmental Authorities listed on Exhibit 2 to this
---------
Agreement and any consent decrees, consent agreement, or memorandums of
understanding with Governmental Authorities, and permits, approvals, plans,
settlement agreements) and that are applicable to Environmental Conditions on,
under or about any Agilent Schedule 2 Facility as to which HP is obligated to
indemnify Agilent under Section 1.4(b)(i) of the Indemnification Agreement.
Section 6.15. Incremental Construction Costs. "Incremental Construction Costs"
means, with respect to any Construction Activity in an area of any of the
Agilent Schedule 2 Facilities that is affected by Environmental Conditions, the
excess of (A) costs reasonably incurred by Agilent or any Authorized Tenant in
connection with the Construction Activity to the extent such costs are
necessitated by the presence of the Environmental Conditions, over (B) the costs
that would have been incurred by Agilent or any Authorized Tenant in connection
with the Construction Activity had such Environmental Conditions not been
present.
Section 6.16. Losses. "Losses" means all losses, damages, claims, obligations,
suits, judgments, fines, penalties, liabilities, costs and expenses of any kind
or character.
Section 6.17. 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 6.18. Release. "Release" means any release, spilled, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching,
or migration into the indoor or outdoor environment, without limitation, the
movement Hazardous Materials through ambient air, soil, surface water,
groundwater, wetlands, land or subsurface strata.
Section 6.19. Remedial Activities. "Remedial Activities" means any activities
undertaken or required to be undertaken by or on behalf of HP in the performance
of HP's Remediation Obligation including, without limitation: reporting,
investigation, feasibility study, remediation, treatment, removal, transport,
disposal, characterization, sampling, health assessment, risk assessment,
encapsulation, monitoring, study, report, assessment or analysis of
Environmental Conditions
Section 6.20. Remedial Activity Plans. "Remedial Activity Plans" means any plan
or other document prepared by or on behalf of HP which describes the
specifications for construction, operation, maintenance, performance,
termination or completion of any Remedial Activities that are part of HP's
Remedial Obligation, including any changes, modifications or amendments thereto.
Section 6.21. Repair Activity. "Repair Activity" means any repair, maintenance
or replacement of any improvements, utilities, fixtures and equipment or
tangible personal property that are present on any Agilent Schedule 2 Facility
as of the Separation Date.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed in its name and on its behalf, all as of the date first written
above.
HEWLETT-PACKARD COMPANY AGILENT TECHNOLOGIES, INC.
By:______________________ By:_______________________
Name:____________________ Name:_____________________
Title:___________________ Title:____________________
EXHIBIT 1
---------
Agilent Schedule 2 Facilities
[To be attached on the Separation Date]
EXHIBIT 2
---------
Orders from a Governmental Authority
[To be attached on the Separation Date]
