Exhibit 2.2
General Assignment and Assumption Agreement
between
Hewlett-Packard Company
and
Agilent Technologies, Inc.
November 1, 1999
TABLE OF CONTENTS
Page
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ARTICLE I CONTRIBUTION AND ASSUMPTION........................................................................... 1
Section 1.1 Contribution of Assets and Assumption of Liabilities................................................. 1
Section 1.2 Agilent Assets....................................................................................... 2
Section 1.3 Agilent Liabilities.................................................................................. 3
Section 1.4 Non-US Plan.......................................................................................... 5
Section 1.5 Methods of Transfer and Assumption................................................................... 5
Section 1.6 Governmental Approvals and Consents.................................................................. 7
Section 1.7 Nonrecurring Costs and Expenses...................................................................... 7
Section 1.8 Novation of Assumed Agilent Liabilities.............................................................. 8
ARTICLE II LITIGATION........................................................................................... 8
Section 2.1 Allocation........................................................................................... 8
Section 2.2 Cooperation.......................................................................................... 9
ARTICLE III MISCELLANEOUS....................................................................................... 9
Section 3.1 Entire Agreement..................................................................................... 9
Section 3.2 Governing Law........................................................................................ 9
Section 3.3 Notices.............................................................................................. 10
Section 3.4 Parties in Interest.................................................................................. 10
Section 3.5 Counterparts......................................................................................... 10
Section 3.6 Binding Effect; Assignment........................................................................... 10
Section 3.7 Severability......................................................................................... 10
Section 3.8 Failure or Indulgence Not Waiver; Remedies Cumulative................................................ 10
Section 3.9 Amendment............................................................................................ 10
Section 3.10 Authority............................................................................................ 11
Section 3.11 Interpretation....................................................................................... 11
Section 3.12 Conflicting Agreements............................................................................... 11
ARTICLE IV DEFINITIONS.......................................................................................... 11
Section 4.1 Action............................................................................................... 11
Section 4.2 Affiliated Company................................................................................... 11
Section 4.3 Agilent Assets....................................................................................... 11
Section 4.4 Agilent Balance Sheet................................................................................ 11
Section 4.5 Agilent Business..................................................................................... 11
Section 4.6 Agilent Contingent Gain.............................................................................. 12
Section 4.7 Agilent Contingent Liability......................................................................... 12
Section 4.8 Agilent Contracts.................................................................................... 13
Section 4.9 Agilent Group........................................................................................ 13
Section 4.10 Agilent Liabilities.................................................................................. 14
Section 4.11 Agilent Pro Forma Balance Sheet...................................................................... 14
Section 4.12 Agilent World Trade.................................................................................. 14
Section 4.13 Ancillary Agreement.................................................................................. 14
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Section 4.14 Assets................................................................................................. 14
Section 4.15 Consents............................................................................................... 15
Section 4.16 Contracts.............................................................................................. 15
Section 4.17 Delayed Transfer Assets................................................................................ 15
Section 4.18 Distribution........................................................................................... 16
Section 4.19 Distribution Date...................................................................................... 16
Section 4.20 Environmental Actions.................................................................................. 16
Section 4.21 Excluded Assets........................................................................................ 16
Section 4.22 Excluded Liabilities................................................................................... 16
Section 4.23 Governmental Approvals................................................................................. 16
Section 4.24 Governmental Authority................................................................................. 16
Section 4.25 HP Group............................................................................................... 16
Section 4.26 Indemnification and Insurance Matters Agreement........................................................ 16
Section 4.27 Insurance Policies..................................................................................... 16
Section 4.28 Insured Agilent Liability.............................................................................. 16
Section 4.29 Intellectual Property.................................................................................. 16
Section 4.30 IPO Registration Statement............................................................................. 17
Section 4.31 Liabilities............................................................................................ 17
Section 4.32 Litigation Disclosure Letter........................................................................... 17
Section 4.33 Local Transfer Agreements.............................................................................. 17
Section 4.34 Non-US Plan............................................................................................ 17
Section 4.35 OFLs................................................................................................... 17
Section 4.36 Person................................................................................................. 18
Section 4.37 Retained Payables...................................................................................... 18
Section 4.38 Retained Receivables................................................................................... 18
Section 4.39 Security Interest...................................................................................... 18
Section 4.40 Separation............................................................................................. 18
Section 4.41 Separation Agreement................................................................................... 18
Section 4.42 Separation Date........................................................................................ 18
Section 4.43 Subsidiary............................................................................................. 19
Section 4.44 Taxes.................................................................................................. 19
ii
SCHEDULES
Schedule 1.1(c) Delayed Transfer Assets and Liabilities
Schedule 1.2(a)(xii) Specific Agilent 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 Agilent
Schedule 1.3(a)(vii) Specific Agilent Liabilities
Schedule 1.3(b)(i) Excluded Liabilities
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
This General Assignment and Assumption Agreement (this "Agreement") is
entered into on November 1, 1999 between Hewlett-Packard Company, a Delaware
corporation ("HP"), and Agilent Technologies, Inc., a Delaware corporation
("Agilent"). Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to such terms in Article IV hereof.
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,
substantially all of the business and assets of the Agilent Business owned by HP
in accordance with the Master Separation and Distribution Agreement dated as of
August 12, 1999 between the parties (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, that HP and its
Subsidiaries convey to Agilent and its Subsidiaries substantially all of the
business and assets of the Agilent Business.
WHEREAS, it is further intended between the parties that Agilent assume
certain of the liabilities related to the Agilent Business, as provided in this
Agreement, the Separation Agreement or the other agreements and instruments
provided for in the Separation Agreement.
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. Effective on the Separation Date, HP hereby
assigns, transfers, conveys and delivers to Agilent, and agrees to cause its
applicable Subsidiaries to assign, transfer, convey and deliver to Agilent's
applicable Subsidiaries pursuant to the relevant Local Transfer Agreements, and
Agilent hereby accepts from HP, and agrees to cause its applicable Subsidiaries
to accept from HP's applicable Subsidiaries, all of HP's and its applicable
Subsidiaries' respective right, title and interest in all Agilent Assets, other
than the Delayed Transfer Assets; provided, however, that any Agilent 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. Effective on the Separation Date, Agilent
hereby assumes and agrees faithfully to perform and fulfill, all the Agilent
Liabilities held by HP, other than the Delayed Transfer Liabilities, in
accordance with their respective terms, and agrees to cause its applicable
Subsidiaries to assume, perform and fulfill all the Agilent Liabilities held by
its Subsidiaries (other than the Delayed Transfer Liabilities), in accordance
with their respective terms.
Agilent shall be responsible for all Agilent Liabilities held by HP, 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
Agilent Liabilities arising out of claims made by HP's or Agilent's respective
directors, officers, consultants, independent contractors, employees or agents
against any member of the HP Group or the Agilent 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 or
misrepresentation by any member of the HP Group or the Agilent 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, 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 Ancillary Agreements as an Agilent Asset or as an
Agilent Liability, as the case may be.
(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 in
trust for any such other Person.
Section 1.2 Agilent Assets.
(a) Included Assets. For purposes of this Agreement, "Agilent Assets"
shall mean (without duplication) the following Assets, except as otherwise
provided for in any Ancillary Agreement or other express agreement of the
parties:
(i) all Assets reflected in the Agilent Balance Sheet, subject to
any dispositions of such Assets subsequent to the date of the Agilent 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 Agilent Balance Sheet in accordance with the
principles and accounting policies under which the Agilent Balance Sheet was
prepared;
(iii) all Assets acquired by HP or its Subsidiaries after the date
of the Agilent Balance Sheet that would be reflected in the consolidated balance
sheet of Agilent as of the Separation Date if such consolidated balance sheet
was prepared using the same principles and accounting policies under which the
Agilent Balance Sheet was prepared;
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(iv) all Assets that are used primarily by the Agilent Business
at the Separation Date but are not reflected in the Agilent Balance Sheet due to
mistake or unintentional omission; provided, however, that no Asset shall be an
Agilent Asset unless Agilent or its Subsidiaries has, on or before the first
anniversary of the Distribution Date, given HP or its Subsidiaries notice that
such Asset is an Agilent Asset;
(v) all Agilent Contingent Gains;
(vi) all Agilent Contracts;
(vii) all issued and outstanding capital stock of Agilent World
Trade;
(viii) all issued and outstanding stock, investments or similar
interests of HP and the Subsidiaries of HP listed on Schedule 2.1(b) of the
Separation Agreement;
(ix) all computers, desks, equipment (including equipment used
for research and development) and other Assets used primarily by employees of HP
that will become employees of Agilent in connection with the Separation; and
(x) cash, as set forth in Section 2.2 of the Separation
Agreement;
(xi) to the extent permitted by law and subject to the
Indemnification and Insurance Matters Agreement, all rights of any member of the
Agilent Group under any of HP's Insurance Policies or other insurance policies
issued by Persons unaffiliated with HP; and
(xii) all Assets that are expressly contemplated by this
Agreement, the Separation Agreement or any other Ancillary Agreement (or
Schedule 1.2(a)(xii) or any other Schedule hereto or thereto) as Assets to be
transferred to Agilent or any other member of the Agilent Group.
(i) Notwithstanding the foregoing, any Assets held directly or
indirectly by Agilent World Trade or any Subsidiaries of HP listed on Schedule
2.1(b) of the Separation Agreement shall not be assigned or transferred pursuant
to Section 1.1(a), and the Agilent Assets shall not in any event 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) the Retained Receivables; and
(iii) any Assets that are expressly contemplated by the Separation
Agreement, this Agreement or any other Ancillary Agreement (or the Schedules
hereto or thereto) as Assets to be retained by HP or any other member of the HP
Group.
Section 1.3 Agilent Liabilities.
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(a) Included Liabilities. For the purposes of this Agreement, "Agilent
Liabilities" shall mean (without duplication) the following Liabilities, except
as otherwise provided for in any Ancillary Agreement or other express agreement
of the parties:
(i) all Liabilities reflected in the Agilent Balance Sheet, subject
to any discharge of such Liabilities subsequent to the date of the Agilent
Balance Sheet;
(ii) all Liabilities of HP or its Subsidiaries that arise after the
date of the Agilent Balance Sheet that would be reflected in the consolidated
balance sheet of Agilent as of the Separation Date if such consolidated balance
sheet was prepared using the same principles and accounting policies under which
the Agilent Balance Sheet was prepared;
(iii) all Liabilities that are related primarily to the Agilent
Business at the Separation Date but are not reflected in the Agilent Balance
Sheet due to mistake or unintentional omission; provided, however, that no
Liability shall be an Agilent Liability unless HP or its Subsidiaries, on or
before the first anniversary of the Distribution Date, has given Agilent or its
Subsidiaries notice that such Liability is an Agilent Liability;
(iv) all Agilent Contingent Liabilities;
(v) 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 Agilent 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 Agilent 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 Agilent Assets;
(vi) 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)(vi); and
(vii) all Liabilities that are expressly contemplated by this
Agreement, Schedule 1.3(a)(vii), the Separation Agreement or any other Ancillary
Agreement (or the Schedules hereto or thereto) as Liabilities to be assumed by
Agilent or any member of the Agilent Group, and all agreements, obligations and
Liabilities of any member of the Agilent Group under this Agreement or any of
the Ancillary Agreements.
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Notwithstanding the foregoing, any Liabilities of Agilent World Trade or any
Subsidiaries of HP listed on Schedule 2.1(b) of the Separation Agreement shall
not be assumed pursuant to Section 1.2(a), and the Agilent 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);
(ii) the Retained Payables;
(iii) all Insured Agilent Liabilities;
(iv) all Environmental Actions set forth in Section 1.4(b) of the
Indemnification and Insurance Matters Agreement; and
(v) all Liabilities that are expressly contemplated by this
Agreement, the Separation Agreement or any other Ancillary Agreement (or the
Schedules hereto or thereto) as Liabilities to be retained or assumed by HP or
any other member of the HP Group, and all agreements and obligations of any
member of the HP Group under the Separation Agreement, this Agreement or any
other Ancillary Agreement.
Section 1.4 The Non-US Plan.
(a) Consummation of Non-US Plan. Each of HP and Agilent 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 Non-US
Plan (whether prior to, on or after the Separation Date). Notwithstanding
anything in this Agreement, the Separation Agreement or in any other Ancillary
Agreement to the contrary, no party to a Local Transfer Agreement shall be
entitled to receive or retain any Asset unless such party shall have paid any
consideration contemplated to be paid in connection therewith pursuant to the
Non-US Plan.
(b) Transfer of Stock. Effective on the Separation Date, HP shall
transfer all of its right, title and interest in and to all of the issued and
outstanding capital stock in Agilent World Trade and the other Subsidiaries
listed in Schedule 2.1(b) of the Separation Agreement, to Agilent by means of a
contribution of such capital stock by HP to Agilent. The parties hereto shall
execute, or cause to be executed, such transfer instruments as they mutually
deem appropriate to effectuate and evidence such transfer.
Section 1.5 Methods of Transfer and Assumption.
(a) Terms of Other Ancillary Agreements Govern. The parties shall enter
into the other Ancillary Agreements, on or about the date of this Agreement. To
the extent that the transfer of any Agilent Asset or the assumption of any
Agilent Liability is expressly provided for by the terms of
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any other Ancillary Agreement, the terms of such other Ancillary 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 Agilent Assets and Agilent Liabilities, other than
Delayed Transfer Assets and Delayed Transfer Liabilities, shall be made
effective as of the Separation Date; provided, however, that circumstances in
various jurisdictions outside the United States 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 Agilent
or retained by HP or (ii) Liabilities that the parties discover were, contrary
to the agreements between the parties, by mistake or omission, assumed by
Agilent or not assumed by Agilent. 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 Agilent. Each party shall reimburse the other or
make other financial 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) Transfer of Assets and Liabilities Not Included in Agilent Assets and
Agilent Liabilities. In the event the parties discover Assets and Liabilities
that relate primarily to the Agilent Business but do not constitute Agilent
Assets under Section 1.2 or Agilent Liabilities under Section 1.3, the parties
shall cooperate in good faith to effect the transfer of such Assets at book
value, or the assumption of such Liabilities, to Agilent or its Subsidiaries and
shall not use the determination of remedial actions contemplated in the
Separation Agreement to alter the original intent of the parties hereto with
respect to the Assets to be transferred to or Liabilities to be assumed by
Agilent. Each party shall reimburse the other or make other financial
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.
(d) Documents Relating to Other Transfers of Assets and Assumption of
Liabilities. In furtherance of the assignment, transfer and conveyance of
Agilent Assets and the assumption of Agilent Liabilities set forth in Sections
1.5(a), (b) and (c) and certain Ancillary Agreements, simultaneously with the
execution and delivery hereof or as promptly as practicable thereafter, (i) HP
shall execute and deliver, and 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 of all of HP's and its Subsidiaries'
right, title and interest in and to the Agilent Assets to Agilent and (ii)
Agilent shall execute and deliver, to HP and its Subsidiaries such bills of
sale, stock powers, certificates of title, assumptions
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of contracts and other instruments of assumption as and to the extent necessary
to evidence the valid and effective assumption of the Agilent Liabilities
by Agilent.
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 Agilent Group of
any Agilent Assets and Agilent Liabilities (or from the Agilent Group of any
Non-Agilent Assets) would be a violation of applicable laws or require any
Consent or Governmental Approval in connection with the Separation, the IPO or
the Distribution, then, unless HP shall otherwise determine, the transfer,
assignment or novation to or from the Agilent Group, as the case may be, of such
Agilent Assets or Non-Agilent 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 an Agilent Asset for purposes of
determining whether any Liability is an Agilent Liability; provided, however,
that if such covenants or Governmental Approvals have not been obtained within
six months of the Distribution 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, including pursuant to the Non-US Plan, 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 Agilent Assets (or such Non-Agilent
Assets, as the case may be), including 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 Agilent Group (or the HP 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 the applicable Ancillary
Agreement.
(c) Expenses. The Person retaining an Asset due to the deferral of the
transfer of such Asset shall not be obligated, in connection with the foregoing,
to expend any money unless the necessary funds are advanced by the Person
entitled to the Asset, other than reasonable out-of-pocket expenses, attorneys'
fees and recording or similar fees, all of which shall be promptly reimbursed by
the Person entitled to such Asset.
Section 1.7 Nonrecurring Costs and Expenses. Notwithstanding anything
herein to the contrary, any nonrecurring costs and expenses incurred by the
parties hereto to effect the transactions contemplated hereby which are not
allocated pursuant to the terms of the Separation
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Agreement, this Agreement or any other Ancillary Agreement shall be the
responsibility of the party which incurs such costs and expenses.
Section 1.8 Novation of Assumed Agilent Liabilities.
(a) Reasonable Commercial Efforts. Each of HP and Agilent, at the request
of the other, shall use their reasonable commercial 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 Agilent OFLs) of any nature whatsoever
that constitute Agilent Liabilities or to obtain in writing the unconditional
release of all parties to such arrangements other than any member of the Agilent
Group, so that, in any such case, Agilent and its Subsidiaries will be solely
responsible for such Liabilities; provided, however, that neither HP, Agilent
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 HP or Agilent is unable to obtain, or
to cause to be obtained, any such required consent, approval, release,
substitution or amendment, the applicable member of the HP 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 Separation Agreement or any other Ancillary
Agreement), Agilent shall, as agent or subcontractor for HP 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 HP
or such other Person, as the case may be, thereunder from and after the date
hereof. HP shall, without further consideration, pay and remit, or cause to be
paid or remitted, to Agilent 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, HP 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 Agilent without payment of further consideration and Agilent
shall, without the payment of any further consideration, assume such rights and
obligations.
ARTICLE II
LITIGATION
Section 2.1 Allocation.
(a) Litigation to Be Transferred to Agilent. Notwithstanding any contrary
provisions in the provisions of the Indemnification and Insurance Matters
Agreement, on the Separation Date, the responsibilities for management of the
litigation identified in Section 2.1(a) of a litigation disclosure letter (the
"Litigation Disclosure Letter"), which will be delivered by HP to Agilent on the
Separation Date, shall be transferred in their entirety from HP and its
Subsidiaries to Agilent and its
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Subsidiaries. As of the Separation Date and thereafter, Agilent shall manage the
defense of this litigation and shall cause its applicable Subsidiaries to do the
same. HP and its Subsidiaries must first obtain the prior consent of Agilent 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 cannot 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 HP at Agilent's Expense. Notwithstanding
any contrary provisions in the Indemnification and Insurance Matters Agreement,
HP shall defend, and shall cause its applicable Subsidiaries to defend, the
litigation identified in Section 2.1(b) of the Litigation Disclosure Letter. 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.
(c) All Other Litigation. All other litigation outstanding at the
Separation Date not included in the Litigation Disclosure Letter shall remain
with HP, and Agilent shall have no liability in connection with, or
responsibility for defending, such litigation.
Section 2.2 Cooperation. HP and Agilent 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 set forth in Section 5.4 of the Separation 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
Separation Agreement. The obligations set forth in this paragraph are more
clearly defined in Section 5.4 of the Separation Agreement, to which reference
is hereby made.
ARTICLE III
MISCELLANEOUS
Section 3.1 Entire Agreement. This Agreement, the Master Separation
Agreement, the other Ancillary Agreements and the Exhibits and Schedules
referenced or 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 3.2 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.
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Section 3.3 Notices. Any notice, demand, offer, request or other
communication required or permitted to be given by either party pursuant to the
terms of this Agreement shall be in writing and shall be deemed effectively
given the earlier of (i) when received, (ii) when delivered personally, (iii)
one (1) business day after being delivered by facsimile (with receipt of
appropriate confirmation), (iv) one (1) business day after being deposited with
an overnight courier service or (v) four (4) days after being deposited in the
US mail, First Class with postage prepaid, and addressed to the attention of the
party's General Counsel at the address of its principal executive office or such
other address as a party may request by notifying the other in writing.
Section 3.4 Parties in Interest. This Agreement, including the Schedules
and Exhibits hereto, and the other documents referred to herein, shall be
binding upon and inure solely to the benefit of each party hereto and their
legal representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
Section 3.5 Counterparts. This Agreement, including the Schedules and
Exhibits hereto, and the other documents referred to herein, may be executed in
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
Section 3.6 Assignment. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective legal representatives
and successors. This Agreement may not be assigned by any party hereto.
Section 3.7 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 3.8 Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of any 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 Schedules or Exhibits attached hereto are cumulative
to, and not exclusive of, any rights or remedies otherwise available.
Section 3.9 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.
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Section 3.10 Authority. Each of the parties hereto represents to the other
that (a) it has the corporate or other requisite power and authority to execute,
deliver and perform this Agreement, (b) the execution, delivery and performance
of this Agreement by it have been duly authorized by all necessary corporate or
other action, (c) it has duly and validly executed and delivered this Agreement,
and (d) this Agreement is a legal, valid and binding obligation, enforceable
against it in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and general equity principles.
Section 3.11 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 3.12 Conflicting Agreements. In the event of conflict between this
Agreement and any other Ancillary Agreement or other agreement executed in
connection herewith, the provisions of Ancillary Agreement and such other
agreement shall prevail.
ARTICLE IV
DEFINITIONS
Section 4.1 Action. "Action" means any demand, action, suit, countersuit,
arbitration, inquiry, proceeding or investigation by or before any federal,
state, local, foreign or international governmental authority or any arbitration
or mediation tribunal.
Section 4.2 Affiliated Company. "Affiliated Company" means, with respect
to HP, any entity in which HP holds a 50% or less ownership interest and that is
listed on Schedule 7.1(a) to the Separation Agreement and, with respect to
Agilent, any entity in which Agilent holds a 50% or less ownership interest and
that is listed on Schedule 7.1(b) to the Separation Agreement. Schedules 7.1(a)
and 7.1(b) may be amended from time to time after the date hereof upon mutual
written consent of the parties.
Section 4.3 Agilent Assets. "Agilent Assets" has the meaning set forth in
Section 1.2 of this Agreement.
Section 4.4 Agilent Balance Sheet. "Agilent Balance Sheet" means the
audited consolidated balance sheet (including the notes thereto) of the Agilent
Business as of July 31, 1999 that is included in the IPO Registration Statement.
Section 4.5 Agilent Business. "Agilent Business" the business and
operations of the business entities of HP currently known under the following
names, as described in the IPO Registration Statement and as such business and
operations will continue following the Separation
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Date: (i) the Test and Measurement Organization, (ii) the Semiconductor Products
Group, (iii) the Chemical Analysis Group, (iv) the Healthcare Solutions Group
and (v) the portion of HP Labs and infrastructure organizations related to these
businesses and (b) except as otherwise expressly provided herein, any
terminated, divested or discontinued businesses or operations that at the time
of termination, divestiture or discontinuation primarily related to the Agilent
Business as then conducted.
Section 4.6 Agilent Contingent Gain. "Agilent Contingent Gain" means any
claim or other right of a member of the HP Group or the Agilent Group that
primarily relates to the Agilent Business, whenever arising, against any Person
other than a member of the HP Group or the Agilent Group, if and to the extent
that (i) such claim or right arises out of the events, acts or omissions
occurring as of the Separation Date (based on then existing law) and (ii) the
existence or scope of the obligation of such other Person as of the Separation
Date was not acknowledged, fixed or determined in any material respect, due to a
dispute or other uncertainty as of the Separation Date or as a result of the
failure of such claim or other right to have been discovered or asserted as of
the Separation Date. A claim or right meeting the foregoing definition shall be
considered an Agilent Contingent Gain regardless of whether there was any Action
pending, threatened or contemplated as of 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 an Agilent 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 an Agilent Contingent Gain.
Section 4.7 Agilent Contingent Liability. "Agilent Contingent Liability"
means any Liability, other than Liabilities for Taxes (which are governed by the
Tax Sharing Agreement), of a member of the HP Group or the Agilent Group that
primarily relates to the Agilent Business, whenever arising, to any Person other
than a member of the HP Group or the Agilent Group, if and to the extent that
(i) such Liability arises out of the events, acts or omissions occurring as of
the Separation Date and (ii) the existence or scope of the obligation of a
member of the HP Group or the Agilent Group as of 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 as of the Separation
Date or as a result of the failure of such Liability to have been discovered or
asserted as of 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
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omissions occurring prior to the Separation Date shall be considered an Agilent
Contingent Liability. For purposes of the 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 an Agilent Contingent Liability. For purposes of determining
whether a claim relating to the Year 2000 problem is an Agilent Contingent
Liability, claims relating to products shipped prior to the Separation Date
shall be deemed to have arisen prior to the Separation Date.
Section 4.8 Agilent Contracts. "Agilent Contracts" means the following
contracts and agreements to which HP 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 HP or any member of the HP
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 Agilent;
(ii) any contract or agreement that relates primarily to the Agilent
Business;
(iii) any contracts or agreements related to the computers, desks,
equipment and other Assets used or managed primarily by employees of HP that
will become employees of Agilent in connection with the Separation;
(iv) any contract or agreement that is otherwise expressly
contemplated pursuant to this Agreement, the Separation Agreement or any of the
other Ancillary Agreements to be assigned to Agilent;
(v) any guarantee, indemnity, representation, warranty or other
Liability of any member of the Agilent Group or the HP Group in respect of any
other Agilent Contract, any Agilent Liability or the Agilent Business (including
guarantees of financing incurred by customers or other third parties in
connection with purchases of products or services from the Agilent Business);
and
(vi) any Agilent OFL.
Section 4.9 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.
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Section 4.10 Agilent Liabilities. "Agilent Liabilities" has the meaning
set forth in Section 1.3 of this Agreement.
Section 4.11 Agilent Pro Forma Balance Sheet. "Agilent Pro Forma Balance
Sheet" means the unaudited pro forma condensed consolidated balance sheet
appearing in the IPO Registration Statement.
Section 4.12 Agilent World Trade. "Agilent World Trade" refers to Agilent
World Trade, Inc., a Delaware corporation.
Section 4.13 Ancillary Agreement. "Ancillary Agreement" has the meaning
set forth in Section 2.1 of the Separation Agreement.
Section 4.14 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, fixtures, machinery, equipment, furniture, office 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;
(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;
(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;
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(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;
(xvi) cash or cash equivalents, bank accounts, lock boxes and
other deposit arrangements; and
(xvii) interest rate, currency, commodity or other swap, collar,
cap or other hedging or similar agreements or arrangements.
Section 4.15 Consents. "Consents" means any consents, waivers or
approvals from, or notification requirements to, any third parties.
Section 4.16 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 4.17 Delayed Transfer Assets. "Delayed Transfer Assets" means any
Agilent Assets that are expressly provided in this Agreement, the Separation
Agreement or any other Ancillary Agreement to be transferred after the date of
this Agreement.
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Section 4.18 Distribution. "Distribution" means HP's pro rata
distribution to the holders of its common stock, $0.01 par value, several months
following the IPO, of all of the shares of Agilent common stock owned by HP.
Section 4.19 Distribution Date. "Distribution Date" has the meaning set
forth in Section 4.1 of the Separation Agreement.
Section 4.20 Environmental Actions. "Environmental Actions" has the
meaning set forth in Section 4.15 of the Indemnification and Insurance Matters
Agreement.
Section 4.21 Excluded Assets. "Agilent Assets" has the meaning set forth
in Section 1.2(b) of this Agreement.
Section 4.22 Excluded Liabilities. "Agilent Liabilities" has the meaning
set forth in Section 1.3(b) of this Agreement.
Section 4.23 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 4.24 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 4.25 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 4.26 Indemnification and Insurance Matters Agreement.
"Indemnification and Insurance Matters Agreement" means the Indemnification and
Insurance Matters Agreement attached as Exhibit K to the Separation Agreement .
Section 4.27 Insurance Policies. "Insurance Policies" means ins rance
policies pursuant to which a Person makes a true risk transfer to an insurer.
Section 4.28 Insured Agilent Liability. "Insured Agilent Liability" means
any Agilent Liability to the extent that (i) it is covered under the terms of
HP's Insurance Policies in effect prior to the Distribution Date and (ii)
Agilent is not a named insured under, or otherwise entitled to the benefits of,
such Insurance Policies.
Section 4.29 Intellectual Property. "Intellectual Property" means all
domestic and foreign patents and patent applications, together with any
continuations, continuations-in-part or divisional applications thereof, and all
patents issuing thereon (including reissues, renewals and re-examinations of the
foregoing); design patents, invention disclosures; mask works; copyrights, and
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copyright applications and registrations; Web addresses, trademarks, service
marks, trade names, and trade dress, in each case together with any applications
and registrations therefor and all appurtenant goodwill relating thereto; trade
secrets, commercial and technical information, know-how, proprietary or
confidential information, including engineering, production and other designs,
notebooks, processes, drawings, specifications, formulae, and technology;
computer and electronic data processing programs and software (object and source
code), data bases and documentation thereof; inventions (whether patented or
not); utility models; registered designs, certificates of invention and all
other intellectual property under the laws of any country throughout the world.
Section 4.30 IPO Registration Statement. "IPO Registration Statement"
means the registration statement on Form S-1 pursuant to the Securities Act of
1933, as amended, to be filed with the Securities and Exchange Commission
registering the shares of common stock of Agilent to be issued in the initial
public offering, together with all amendments thereto.
Section 4.31 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 4.32 Litigation Disclosure Letter. "Litigation Disclosure Letter"
has the meaning set forth in Section 2.1(a) of this Agreement.
Section 4.33 Local Transfer Agreements. "Local Transfer Agreements" means
the agreements necessary to effect the Non-US Plan (as defined in the Separation
Agreement).
Section 4.34 Non-US Plan. "Non-US Plan" has the meaning set forth in
Section 5.8 of the Separation Agreement .
Section 4.35 OFLs. "OFLs" mean all liabilities, obligations,
contingencies, instruments and other Liabilities of any member of the HP 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;
(iv) surety bonds (excluding surety for workers' compensation self-
insurance);
(v) interest support agreements on third party loans to customers;
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(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 4.36 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 4.37 Retained Payables. "Retained Payables" means (i) all accounts
payable and other obligations of payment for goods or services purchased, leased
or otherwise received in the conduct of the Agilent Business that as of the
Separation Date are payable to a third Person by HP or any of HP'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
HP or any of HP's Subsidiaries with 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 Agilent Pro
Forma Balance Sheet.
Section 4.38 Retained Receivables. "Retained Receivables" means (i) all
accounts receivable and other rights to payment for goods or services sold,
leased or otherwise provided in the conduct of the Agilent Business that as of
the Separation Date are payable by a third Person to HP or any of HP'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 Agilent Pro Forma Balance Sheet.
Section 4.39 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 4.40 Separation. "Separation" means the transfer and contribution
from HP to Agilent, and Agilent's receipt and assumption of, directly or
indirectly, substantially all of the Assets and Liabilities currently associated
with the Agilent Business and the stock, investments or similar interests
currently held by HP in subsidiaries and other entities that conduct such
business.
Section 4.41 Separation Agreement. "Separation Agreement" means the Master
Separation and Distribution Agreement dated as of August 12, 1999, of which this
is an Exhibit thereto.
Section 4.42 Separation Date. "Separation Date" means the effective date
and time of each transfer of property, assumption of liability, license,
undertaking, or agreement in connection
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with the Separation, which shall be 12:01 a.m., Pacific Time, November 1, 1999,
or such date as may be fixed by the Board of Directors of HP.
Section 4.43 Subsidiary. "Subsidiary" means with respect to any specified
Person, any corporation, any limited liability company, any partnership or other
legal entity of which such Person or its Subsidiaries owns, directly or
indirectly, more than 50% of the stock or other equity interest entitled to vote
on the election of the members of the board of directors or similar governing
body. Unless context otherwise requires, reference to HP and its Subsidiaries
shall not include the subsidiaries of HP that will be transferred to Agilent
after giving effect to the Separation, including the actions taken pursuant to
the Non-US Plan.
Section 4.44 Taxes. "Taxes" has the meaning set forth in the Tax Sharing
Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties has caused the 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.
HEWLETT-PACKARD COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
Title: Chief Financial Officer
-----------------------------
AGILENT TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------
Title: President & CEO
-----------------------------
[Signature Page to General Assignment and Assumption Agreement]
Schedule 1.1(c) Delayed Transfer Assets and Liabilities
None.
Schedule 1.2(a)(xii) Specific Agilent Assets to be Transferred
None.
Schedule 1.2(b)(i) Excluded Assets
None.
Schedule 1.3(a)(vi) Divested Businesses Which Contain Liabilities to be
Transferred to Agilent
1. Businesses divested by HP pursuant to the Master Asset Purchase Agreement,
dated February 12, 1998, by and between Hewlett-Packard Company and Lucent
Technologies, Inc, as amended by Amendment No. 1 to the Master Asset
Purchase Agreement, dated March 9, 1998.
2. Businesses divested by HP pursuant to the Amended and Restated Asset
Purchase Agreement, dated October 9, 1998, by and between Hewlett-Packard
Company and Powerwave Technologies, Inc.
3. Divestiture of certain assets of the Video Communications Division to
Pinnacle Systems.
Schedule 1.3(a)(vii) Specific Agilent Liabilities
None.
Schedule 1.3(b)(i) Excluded Liabilities
None.
