GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT

 

TABLE OF CONTENTS

 

			Page
ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION			1
	1.1	Definitions	1
	1.2	Rules of Construction	1
ARTICLE II TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES			2
	2.1	Transfer of Assets	2
	2.2	Assumption by Verigy of Certain Liabilities; Retention by Agilent of Remaining Liabilities	2
	2.3	Transfer of Transferred Assets and Assumed Liabilities.	4
	2.4	Approvals and Consents	5
	2.5	Novation and Assignment	5
	2.6	Consents for Real Property Assignments	6
	2.7	No Representation or Warranties.	7
	2.8	Mistaken Assignments and Assumptions.	8
	2.9	Litigation	8
	2.10	Shared Contracts	9
ARTICLE III MISCELLANEOUS AGREEMENTS OF THE PARTIES			9
	3.1	Miscellaneous	9
	3.2	Conflicting Agreements	9

 

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GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT

 

This General Assignment and Assumption Agreement is dated as of June 1, 2006 (the “ Agreement ”), between Agilent Technologies, Inc., a Delaware corporation (“ Agilent ”), and Verigy Ltd., a company organized under the laws of Singapore (together with its successors and assigns, “ Verigy ”) (each, a “ Party ” and collectively, the “ Parties ”).

 

W I T N E S S E T H:

 

WHEREAS , Agilent and its Subsidiaries hereby and by certain other instruments transfer or will transfer to Verigy and its Subsidiaries substantially all of the assets of the Business owned by Agilent and its Subsidiaries, and Verigy and its Subsidiaries assume or will assume certain liabilities relating to the Business, in each case effective as of the Effective Date and in accordance with the Master Separation and Distribution Agreement, dated as of May 31, 2006, between the Parties (the “ Master Separation Agreement ”).

 

WHEREAS , it is the intent of the Parties, by this Agreement and the other agreements and instruments provided for in the Master Separation Agreement, that Agilent and its Subsidiaries convey to Verigy and its Subsidiaries substantially all of the business and assets of the Business.

 

WHEREAS , it is further intended between the Parties that Verigy assume certain of the liabilities related to the Business, as provided in this Agreement, the Master Separation Agreement or the other agreements and instruments provided for in the Master Separation Agreement.

 

NOW, THEREFORE , in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

ARTICLE I

 

DEFINITIONS AND RULES OF CONSTRUCTION

 

1.1     Definitions.

 

Unless otherwise provided herein, capitalized terms used in this Agreement have the meanings ascribed to them by definition in this Agreement or in Annex A .

 

1.2     Rules of Construction.

 

(a)   This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.

 

(b)   The words “hereof, “herein” and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole (including any annexes, exhibits and schedules to this Agreement) and not to any particular provision of this Agreement, and section and subsection references are to this Agreement unless otherwise specified. The words “include”, “including”, or “includes” when used herein shall be deemed in each case to be followed by the words “without limitation” or words having similar import. The headings and table of contents in this Agreement are included for convenience of reference only and will not limit or otherwise affect the meaning or interpretation of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms.

 

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ARTICLE II

 

TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES

 

2.1     Transfer of Assets.

 

(a)   Upon the terms and subject to the conditions set forth in this Agreement, effective on the Separation Date (subject to subsection (c) hereof), Agilent shall or shall cause one or more of its Subsidiaries to assign, transfer, convey and deliver to Verigy or one or more of its Subsidiaries, and Verigy or such Subsidiaries shall accept from Agilent or such Subsidiaries, all of Agilent’s and such Subsidiaries’ respective right, title and interest in and to the Transferred Assets.

 

(b)   Upon the terms and subject to the conditions set forth in the Intellectual Property Matters Agreement, effective on the Separation Date (subject to subsection (c) hereof), Agilent shall or shall cause one or more of its Subsidiaries to assign, transfer, convey and deliver to Verigy or one or more of its Subsidiaries, and Verigy or such Subsidiaries shall accept from Agilent or such Subsidiaries, all of Agilent’s and such Subsidiaries’ respective right, title and interest in and to the Transferred Licenses, the Transferred Intellectual Property Rights and the Business Technology.

 

(c)   Such assignment, transfer or conveyance will be effective as of such times as provided in each respective Ancillary Agreement or any other Transaction Agreement and will be subject to the terms and conditions of this Agreement, any applicable Ancillary Agreement or other Transaction Agreement.

 

2.2     Assumption by Verigy of Certain Liabilities; Retention by Agilent of Remaining Liabilities.

 

(a)   Upon the terms and subject to the conditions set forth in this Agreement, effective on the Separation Date, Verigy or one or more of its Subsidiaries shall assume, pay, perform and discharge when due any and all liabilities, obligations, guarantees (including lease guarantees), commitments, damages, losses, debts, claims, demands, judgments or settlements of any nature or kind, whether known or unknown, fixed, accrued, absolute or contingent, liquidated or unliquidated, matured or unmatured, (collectively, “ Liabilities ”) of Agilent and its Subsidiaries to the extent (but only to the extent) arising out of or relating to the Business or its predecessors, the Transferred Assets, the Transferred Licenses, the Transferred Intellectual Property Rights or the Business Technology, whether arising on, prior to or after the Separation Date, other than the Excluded Liabilities (the “ Assumed Liabilities ”). Without in any way limiting the generality of the foregoing, except to the extent any such Liability is an Excluded Liability, the Assumed Liabilities shall include, without limitation, the following:

 

(i)    all Liabilities of Agilent or its Subsidiaries arising on, prior to or after the Separation Date under the Assumed Contracts and the Transferred Licenses;

 

(ii)   all Liabilities of Agilent and its Subsidiaries in respect of the products sold or manufactured by the Business or its predecessors at any time, including Liabilities for refunds, adjustments, allowances, repairs, exchanges, returns and warranty, merchantability and other claims arising on, prior to or after the Separation Date;

 

(iii)  all Liabilities arising on, prior to, or after the Separation Date for any actual or alleged infringement or misappropriation with respect to the Business or its predecessors of (A) the rights of any other Person relating to Intellectual Property Rights, or (B) any right of any other Person pursuant to any license, sublicense or agreement relating to Intellectual Property Rights including the Transferred Licenses;

 

(iv)  all accounts payable due to third parties incurred in connection with the operation of the Business or its predecessors;

 

(v)   all Liabilities relating to or arising out of: (A) the presence at any time of any Hazardous Materials, on, prior to, or after the Separation Date, in soil, groundwater, surface water, air or

 

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building materials as a result of, or attributable or allocable to, the Business or its predecessors (“ Business Contamination ”); (B) any Hazardous Materials Activity conducted at any time on, prior to or after the Separation Date as a result of, or attributable or allocable to, the Business or its predecessors (“ Business Hazardous Materials Activities ”); (C) the exposure of any person to Hazardous Materials in the course of or as a consequence of any Business Hazardous Materials Activities or to Business Contamination, without regard to whether any health effect of the exposure has been manifested as of the Separation Date; (D) the violation of any Environmental Laws by the Business or its predecessors; and (E) any actions or proceedings brought or threatened by any third party with respect to any of the foregoing.;

 

(vi)  any restructuring, transition or set-up costs or expenses related to the Business and any costs incurred in connection with the Separation, in each case, incurred on or after the Separation Date;

 

(vii) the Assumed Transferred Employee Liabilities; and

 

(viii) all Liabilities of Agilent or its Subsidiaries under the Flextronics Transfer Agreements and Verigy’s reimbursement obligations, if any, pursuant to Section 6.5 of the Master Separation Agreement.

 

(b)   Any other provision of this Agreement notwithstanding, neither Verigy nor its Subsidiaries shall be obligated to assume, pay, perform, discharge or be responsible for any of the following Liabilities of Agilent or any of its Subsidiaries (collectively, the “ Excluded Liabilities ”):

 

(i)    any Liability to the extent arising out of or relating to the operation or conduct by Agilent or any of its Subsidiaries of any Retained Business or its predecessors or of any business other than the Business or its predecessors;

 

(ii)   any Liability for which Agilent is responsible pursuant to the terms of the Tax Sharing Agreement;

 

(iii)  any Liability to the extent arising out of or relating to any Excluded Asset;

 

(iv)  the Excluded Transferred Employee Liabilities;

 

(v)   any Indebtedness of Agilent or its Subsidiaries (other than Verigy and its Subsidiaries);

 

(vi)  any Liability arising out of any environmental claim other than as provided in Section 2.2(a)(v);

 

(vii) any cost or expense or any Liability of Agilent or its Subsidiaries incurred before, on or after the Separation Date to the extent arising out of the Distribution;

 

(viii) any cost or expense of Agilent or its Subsidiaries incurred before, on or after the Separation Date incurred in order to effect the IPO (other than (A) underwriting discounts and commissions and (B) any Liabilities arising under any Law (including, without limitation, the Securities Act or the Exchange Act), other than any such Liabilities with respect to which Agilent has expressly agreed to provide indemnification pursuant to Section 9.2 of the Master Separation Agreement);

 

(ix)  any transition or set-up costs or expenses relating to the Business and any costs incurred in contemplation of the Separation, in each case incurred prior to the Separation Date;

 

(x)   any cost or expense or any Liability of Agilent or its Subsidiaries, incurred before, on or after, the Separation Date to the extent arising out of the Agilent Restructurings other than any Assumed Transferred Employee Liabilities; or

 

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(xi)  except as specifically provided for herein, any Liabilities with respect to Contracts other than Assumed Contracts.

 

2.3     Transfer of Transferred Assets and Assumed Liabilities.

 

(a)   The Transferred Assets shall be sold, conveyed, transferred, assigned and delivered, and the Assumed Liabilities shall be assumed, pursuant to transfer and assumption agreements and such other instruments in such form as may be necessary or appropriate to effect a conveyance of the Transferred Assets and an assumption of the Assumed Liabilities in the jurisdictions in which such transfers are to be made. Such transfer and assumption agreements shall be jointly prepared by the Parties and may include: (i) a bill of sale in substantially the form attached hereto as Exhibit A (the “ Bill of Sale ”); (ii) an assignment and assumption agreement in substantially the form attached hereto as Exhibit B (the “ Assignment and Assumption Agreement ”); (iii) local asset transfer agreements for each jurisdiction other than the United States in which Transferred Assets or Assumed Liabilities are located in substantially the form attached hereto as Exhibit C with such deviations therefrom as are required by or advisable under local Law (the “ Local Asset Transfer Agreements ”) and (iv) such other agreements as may reasonably be required to effect the purchase and assignment of the Transferred Assets and Assumed Liabilities under applicable local law (collectively, clauses (i)-(iv), the “ Ancillary Agreements ”) and shall be executed on or about the Separation Date by Agilent and/or one or more of its Subsidiaries, as appropriate, and Verigy or one of its Subsidiaries. The Leases of the Assigned Real Property shall be assigned and delivered, and the related Assumed Liabilities shall be assumed, pursuant to the Lease Assignments and the Subleased Real Property shall be delivered, and the related Assumed Liabilities shall be assumed, pursuant to the Sublease Agreements, in each case, effective as of the Separation Date.

 

(b)   Notwithstanding the foregoing and unless otherwise stated in the Master Separation Agreement, Verigy and Agilent will jointly prepare such Transferred Assets, which are located at any facilities that are currently occupied by Agilent or any of its Subsidiaries which will not be purchased, assigned, subleased, transferred to or otherwise occupied by Verigy pursuant to this Agreement or the Master Separation Agreement (each such facility, an “ Agilent Facility ”), for relocation and relocate such Transferred Assets from the relevant Agilent Facility. Subject to the terms of this Section 2.3(b), Agilent agrees, and agrees to cause its Subsidiaries, to cooperate with Verigy and provide Verigy all assistance reasonably requested by Verigy in connection with the planning and implementation of the transfer of Transferred Assets or any portion of any of them to such location as Verigy shall designate. Transferred Assets shall be transported by or on behalf of Verigy, and until all of the Transferred Assets are removed from an Agilent Facility, Agilent will, and will cause its Subsidiaries to, permit Verigy and its authorized agents or representatives, upon prior notice, to have reasonable access to Agilent Facility to the extent necessary to disconnect, detach, remove, package and crate the Transferred Assets for transport. Verigy shall be responsible for disconnecting and detaching all fixtures and equipment that are Transferred Assets from the floor, ceiling and walls of an Agilent Facility so as to be freely removed from an Agilent Facility by Verigy, repairing any damage caused by such disconnection, detachment and removal, and otherwise restoring such Agilent Facility to its condition prior to the disconnection, detachment and removal of such fixtures and equipment. Verigy shall be responsible for packaging and loading the Transferred Assets for transporting to and reinstalling the Transferred Assets at such location(s) as Verigy shall determine. All risk of loss as to the Transferred Assets shall be borne by, and shall pass to, Verigy as of the Separation Date.

 

(c)   In connection with the transactions contemplated by this Agreement and the Master Separation Agreement, each Party will take, and will cause each of its respective Affiliates to take, such action as is reasonably necessary to consummate the transactions contemplated by the Global Reorganization and Restructuring Plan (whether prior to or after the Separation Date).

 

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2.4     Approvals and Consents and Satisfaction of Conditions.

 

(a)   Notwithstanding anything to the contrary contained in this Agreement, and subject to the provisions of Sections 2.5 and 2.6, to the extent that the sale, conveyance, transfer, assignment or delivery or attempted sale, conveyance, transfer, assignment or delivery to Verigy of any Transferred Asset would result in a violation of any applicable Law, would require any Consent or waiver of any Governmental Authority or third party, or would require another applicable condition to such transfer to be satisfied, and such Consent or waiver shall not have been obtained or such condition shall not have been satisfied prior to the Separation Date, this Agreement shall not constitute a sale, conveyance, transfer, assignment or delivery, or an attempted sale, conveyance, transfer, assignment or delivery thereof if any of the foregoing would constitute a breach of applicable Law, any Contract or the rights of any third party. Following the Separation Date, the Parties shall use commercially reasonable efforts, and shall cooperate with each other, to obtain promptly such Consent or waiver or satisfy any remaining condition; provided , further , however, that neither Party nor any of its Subsidiaries shall be required to pay any consideration therefor.

 

(b)   Once such Consent or waiver is obtained or such condition satisfied, Agilent shall, or shall cause its Subsidiaries to, sell, assign, transfer, convey and license such Transferred Asset to Verigy or its Subsidiaries for no additional consideration. Applicable Transfer Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid in accordance with the Tax Sharing Agreement.

 

(c)   To the extent that any Transferred Asset cannot be provided to Verigy following the Separation Date pursuant to this Section 2.4, Verigy and Agilent shall use commercially reasonable efforts to enter into such arrangements (including subleasing, sublicensing or subcontracting) to provide to the Parties the economic (taking into account Tax costs and benefits) and, to the extent permitted under applicable Law, operational equivalent of having completed such transfer and the performance by Verigy of its related obligations. To the extent permitted under applicable Law, Agilent shall hold in trust for and pay to Verigy promptly upon receipt thereof, such Transferred Assets and all income, proceeds and other monies received by Agilent to the extent related to any such Transferred Asset in connection with the arrangements under this Section 2.4. Agilent shall be permitted to set off against such amounts all direct costs associated with the retention and maintenance of such Transferred Assets. Notwithstanding the foregoing, in no event shall Agilent have any obligation to retain any portion of the Business (including any Transferred Assets) beyond the Distribution Date. Nothing in this Section 2.4 applies to Consents or releases with respect to the Assigned Real Property or Subleased Real Property, such Consents and releases to be obtained pursuant to the provisions of Section 2.6.

 

2.5     Novation and Assignment.

 

(a)   Each Party shall, and shall cause their respective Subsidiaries to use commercially reasonable efforts to obtain or to cause to be obtained any Consent, substitution, or amendment required to novate (including with respect to any federal governmental contract) or assign all rights and obligations under Assumed Contracts and other obligations or liabilities of any nature whatsoever that constitute the Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Verigy will be solely responsible for such rights and Assumed Liabilities from and after the Separation Date, provided , however, that neither Party nor any of its Subsidiaries shall be obligated to pay any consideration therefor to any third party from whom such Consents, substitutions and amendments are requested.

 

(b)   If either Party or any of its Subsidiaries is unable to obtain, or to cause to be obtained, any such required Consent, release, substitution or amendment, (i) Agilent shall, or shall cause its Subsidiary to, continue to be bound by such Assumed Contracts and other obligations and, (ii) unless not permitted by the terms thereof or applicable Law, Verigy shall, as agent or subcontractor for Agilent or such Subsidiary, pay, perform and discharge fully, or cause to be paid, transferred or

 

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discharged all the obligations or other Liabilities of Agilent or such Subsidiary thereunder from and after the Separation Date (except to the extent expressly otherwise provided herein or in the other Transaction Documents). Agilent shall, without further consideration, pay and remit, or cause to be paid or remitted, to Verigy promptly all money, rights and other consideration received by it in respect of such performance. 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, Agilent shall, or shall cause such Subsidiary to, thereafter assign, or cause to be assigned, all its rights, obligations and other liabilities thereunder to Verigy or its Subsidiaries without receipt of further consideration and Verigy or its Subsidiaries shall, without the payment of any further consideration, assume such rights and obligations. Notwithstanding the foregoing, the provisions of this Section 2.5 shall not apply to Consents or releases with respect to the Assigned Real Property or Subleased Real Property, such Consents and releases to be obtained pursuant to the provisions of Section 2.6.

 

2.6     Consents for Real Property Assignments.

 

(a)   With respect to any Assigned Real Property or Subleased Real Property to which Agilent or any of its Subsidiaries is the lessee, Agilent shall or shall cause such Subsidiary to contact the Landlords of the Assigned Real Property or Subleased Real Property and seek each Landlord’s consent to the applicable lease assignment or sublease, if such consent is necessary for such assignment or sublease. Agilent shall, or shall cause such Subsidiary to use commercially reasonable efforts to obtain such Consents in form reasonably acceptable to Verigy, but shall not be required to commence judicial proceedings against any Landlord due to the Landlord’s failure or refusal to issue a Consent. Agilent or such Subsidiary shall have the right, in its sole and absolute discretion, but shall not be required, to pay any additional consideration or provide any additional security or guarantees to the Landlords. Verigy and its Subsidiaries shall cooperate with Agilent or such Subsidiary in attempting to obtain the Consents set forth above, including (i) providing financial statements and references as may be reasonably requested by the relevant Landlords, (ii) entering into any amendments to the Leases of the Assigned Real Property or Subleased Real Property as may be reasonably requested by the relevant Landlords; provided such amendments could not reasonably be expected to increase the tenant’s liability or decrease the tenant’s rights thereunder or (iii) entering into direct Leases of the Assigned Real Property or Subleased Real Property with the relevant Landlords, if reasonably requested by such Landlords, on terms that are not materially more adverse to Verigy in comparison to those of the applicable existing Lease or otherwise acceptable to Verigy in its reasonable discretion. Neither Verigy nor any Subsidiary of Verigy shall communicate directly with any of Agilent’s, or its Subsidiaries’ Landlords without the prior written consent of Agilent, such consent not to be unreasonably withheld.

 

(b)   If, despite the efforts of the Parties as set forth above, a Landlord of an Assigned Real Property or Subleased Real Property fails to consent to the applicable lease assignment or sublease prior to the Separation Date, subject to Section 2.6(c):

 

(i)    Verigy or its Subsidiaries shall be entitled to occupy the relevant Assigned Real Property or Subleased Real Property as a licensee upon the terms and conditions contained in the Lease with Agilent or its Subsidiary with respect to such Assigned Real Property or Subleased Real Property. Such license shall not be revocable due to the relevant Landlord’s failure to consent, unless (A) the relevant Landlord formally, unconditionally refuses to consent and provides written notice stating that Verigy’s occupancy pursuant to the license violates the Lease with respect to the Assigned Real Property or Subleased Real Property, and (B) an enforcement action or forfeiture by the relevant Landlord due to Verigy’s or its Subsidiary’s occupation of such Assigned Real Property or Subleased Real Property cannot, in the reasonable opinion of Agilent, be avoided other than by requiring Verigy or such Subsidiary to immediately vacate the relevant Assigned Real Property or Subleased Real Property. In either such event, Agilent may terminate the license by delivering written notice to Verigy, and Verigy or its Subsidiary shall vacate the relevant Assigned

 

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Real Property or Subleased Real Property immediately or by such other date as may be specified in a notice served by Agilent.

 

(ii)   For as long as Verigy or its Subsidiary occupies or is entitled to occupy such Assigned Real Property or Subleased Real Property as licensee as provided above, Verigy or such Subsidiary shall, effective as of the Separation Date: (A) pay Agilent or its Subsidiary all rents, service charges, insurance premiums and other sums payable by Agilent or such Subsidiary under the relevant Lease of the Assigned Real Property or Subleased Real Property, but only with respect to the portion of the Subleased Real Property that Verigy or its Subsidiary occupies or is entitled to occupy and (B) subject to the provisions of Section 2.2(b) hereof, observe and perform all of the covenants, obligations and conditions of Agilent or such Subsidiary contained in the relevant Lease of the Assigned Real Property or Subleased Real Property.

 

(c)   If, despite the efforts of the Parties as set forth above, a Landlord of an Assigned Real Property or Subleased Real Property formally and unconditionally refuses to consent to the applicable assignment or sublease and provides written notice stating that Verigy’s or its Subsidiary’s occupancy violates the Lease with respect to such Assigned Real Property or Subleased Real Property:

 

(i)    With respect to any such Assigned Real Property, without limiting the rights of Agilent or any of its Subsidiaries as set forth in subparagraphs (ii) and (iii) below, Agilent may, by written notice to Verigy elect to apply to the relevant Landlord for consent to sublease to Verigy or its Subsidiary all of the Assigned Real Property for the remainder of the relevant Lease term at a rent equal to the rent from time to time under the relevant Lease, and otherwise on substantially the same terms and conditions as the relevant Lease and pursuant to the terms of a reasonable sublease form prepared by Agilent or such Subsidiary. If Agilent makes such an election after the Separation Date (or before the Separation Date, if the Landlord consent is not received before the Separation Date), the provisions of Section 2.6(b) will apply; provided that upon receipt of the consent required to sublease the relevant Assigned Real Property, Agilent shall, or shall cause such Subsidiary to sublease to Verigy or its Subsidiary the Assigned Real Property as set forth herein. If Agilent makes such an election before the Separation Date and the relevant Lease consent is obtained before the Separation Date, Agilent or its Subsidiary shall sublease to Verigy or its Subsidiary the relevant Assigned Real Property on the Separation Date as set forth above.

 

(ii)   With respect to any Assigned Real Property or Subleased Real Property, if the Landlord takes such action prior to the Separation Date, Agilent may elect by written notice to Verigy to delete the relevant Assigned Real Property or Subleased Real Property from this Agreement. In such case, on the Separation Date, Agilent shall not assign or sublease such Assigned Real Property or Subleased Real Property to Verigy.

 

2.7     No Representation or Warranties.     Verigy (on behalf of itself and its Subsidiaries) acknowledges and agrees that, except as expressly set forth in this Agreement or any Ancillary Agreement, (a) neither Agilent nor any of its Subsidiaries is making any representations or warranties in this Agreement or any Ancillary Agreement, express or implied, as the condition, quality, merchantability or fitness of any Transferred Assets, Transferred Intellectual Property Rights, Business Technology or Transferred Licenses transferred pursuant to this Agreement, any Ancillary Agreement or any other agreement contemplated hereby or thereby, (b) all such Transferred Assets, Transferred Intellectual Property Rights, Business Technology and Transferred Licenses will be transferred on an “as is,” “where is” based and (c) Verigy and its Affiliates will bear the economic and legal risks that any conveyance will prove to be insufficient to vest in them good and marketable title, free and clear of any security interest, pledge, lien, charge, claim or other encumbrance of any nature whatsoever.

 

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2.8     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) Transferred Assets, Transferred Intellectual Property Rights, Business Technology or Transferred Licenses that the parties discover were, contrary to the agreements between the parties, by mistake or omission, transferred to Verigy or its Subsidiaries or retained by Agilent or its Subsidiaries or (ii) Liabilities that the parties discover were, contrary to the agreements between the parties, by mistake or omission, assumed by Verigy or its Subsidiaries or not assumed by Verigy or its Subsidiaries. The Parties shall cooperate in good faith to effect the transfer or re-transfer of such Transferred Assets, Transferred Intellectual Property Rights, Business Technology or Transferred Licenses 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 Transferred Assets, Transferred Intellectual Property Rights, Business Technology or Transferred Licenses to be transferred to or Liabilities to be assumed by Verigy. 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 Transferred Assets, Transferred Intellectual Property Rights, Business Technology or Transferred Licenses transferred hereby or any of the Liabilities assumed hereby.

 

2.9     Litigation.

 

(a)     Allocation.

 

(i)     Litigation to Be Transferred to Verigy.     On the Separation Date, the responsibilities for management of the litigation identified on Schedule 1 of the litigation disclosure letter mutually agreed upon by Agilent and Verigy attached hereto as Exhibit G (the “ Litigation Disclosure Letter ”), which will be delivered by Agilent to Verigy on the Separation Date, shall be transferred in their entirety from Agilent and its Subsidiaries to Verigy and its Subsidiaries. As of the Separation Date and thereafter, Verigy shall manage the defense of this litigation and shall cause its applicable Subsidiaries to do the same pursuant to the terms applicable to a “Controlling Party” in Section 9.3(d) of the Master Separation Agreement, and Agilent and its Subsidiaries shall comply with the provisions of Section 9.3(d) of the Master Separation Agreement applicable to a “Non-Controlling Party”. All other matters relating to such litigation, including but not limited to indemnification for such claims, shall be governed by the provisions of the Master Separation Agreement.

 

(ii)     Litigation to be Defended by Agilent at Verigy’s Expense.     Agilent shall defend, and shall cause its applicable Subsidiaries to defend, the litigation identified on Schedule 2 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 Master Separation Agreement.

 

(iii)     All Other Litigation.     All litigation arising on, prior to or after the Separation Date that is not included in the Litigation Disclosure Letter and which relates to a claim pursuant to which one Party may be entitled to indemnification under the Master Separation Agreement shall be treated as a Third-Party Claim under the Master Separation Agreement and the defense of such claim shall be determined in accordance with Section 9.3(d) of the Master Separation Agreement.

 

(b)     Cooperation.     Agilent and Verigy and their respective Subsidiaries shall cooperate with each other in the defense of any litigation covered under this Section 2.9 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 the Master Separation Agreement. The foregoing agreement to cooperate includes, but

 

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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 the Master Separation Agreement.

 

2.10     Shared Contracts.

 

Upon the mutual agreement of Agilent and Verigy (which agreement shall not be unreasonably withheld by Agilent), Agilent will, and will cause its Subsidiaries to, to the extent permitted by the applicable Agilent Shared Contract and applicable law, make available to Verigy or its Subsidiaries the benefits and rights under the Agilent Shared Contracts (except where the benefits or rights under such Agilent Shared Contracts are specifically provided pursuant to a Transaction Document) which are substantially equivalent to the benefits and rights enjoyed by Agilent under each Agilent Shared Contract for which such request is made by Verigy, to the extent such benefits relate to the Business; provided , however , that Verigy will assume and discharge (or promptly reimburse Agilent for) the obligations and liabilities under the relevant Agilent Shared Contracts associated with the benefits and rights so made available to them.

 

Except as may be mutually agreed by Agilent and Verigy, the parties’ rights and obligations pursuant to this Section 2.10 will terminate upon the earliest to occur of (i) the Distribution Date, (ii) the termination of Agilent’s obligation to effect the Distribution pursuant to the Master Separation Agreement, and (iii) with respect to any particular Agilent Shared Contract, such time that the arrangement pursuant to this Section 2.10 is no longer permitted thereunder.

 

ARTICLE III

 

MISCELLANEOUS AGREEMENTS OF THE PARTIES

 

3.1     Miscellaneous.

 

The provisions of Article X of the Master Separation Agreement are hereby incorporated into this Agreement.

 

3.2     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 such Ancillary Agreement or other agreement shall prevail.

 

[SIGNATURE PAGES FOLLOW]

 

9

 

IN WITNESS WHEREOF , the Parties have caused this General Assignment and Assumption Agreement to be duly executed as of the date first above written.

 

	AGILENT TECHNOLOGIES, INC.
	By:	/s/  JOHN EATON
		Name:    John Eaton
		Title:    Vice President, Corporate Development

 

[AGILENT’S SIGNATURE PAGE TO GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT—
VERIGY’S SIGNATURE PAGE FOLLOWS]

 

 

	VERIGY LTD.
	By:	/s/  KEITH L. BARNES
		Name:    Keith L. Barnes
		Title:    President and Chief Executive Officer

 

[VERIGY’S SIGNATURE PAGE TO GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT]

 

 

ANNEX A

 

” Affiliate ” of a Person means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned Person. For purposes of this definition, “control,” when used with respect to any specified Person, means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through ownership of voting securities or by contract or otherwise, and the terms “controlling” and “controlled by” have meanings correlative to the foregoing

 

” Agilent ” shall have the meaning set forth in the Recitals to this Agreement.

 

” Agilent Facility ” shall have the meaning set forth in Section 2.3(b).

 

” Agilent Restructurings ” shall mean the three restructuring plans of Agilent which were initiated in 2001, 2002, 2003 and 2005, as described Agilent’s Annual Report on Form 10-K for the fiscal year ended October 31, 2005, and subsequent filings.

 

” Agilent Shared Contract ” means any Contract relating in part to the Business not included in the Transferred Assets.

 

” Agreement ” shall have the meaning set forth in the Recitals to the Agreement.

 

” Ancillary Agreements ” shall have the meaning as set forth in Section 2.3.

 

” Assigned Real Property ” shall mean all real property to be assigned to Verigy in accordance with Article II and as set forth on Schedule 1.

 

” Assignment and Assumption Agreement ” shall have the meaning set forth in Section 2.3.

 

” Assumed Contracts ” shall have the meaning set forth in Exhibit F .

 

” Assumed Liabilities ” shall have the meaning set forth in Section 2.2(a).

 

” Assumed Transferred Employee Liabilities ” shall have the meaning set forth in the Employee Matters Agreement.

 

” Automated Semiconductor Test Systems ” shall have the meaning set forth in the Intellectual Property Matters Agreement.

 

” Bill of Sale ” shall have the meaning set forth in Section 2.3.

 

” Business ” shall have the meaning set forth in the Master Separation Agreement.

 

” Business Day ” means a day other than a Saturday, a Sunday or a day on which banking institutions located in San Francisco, California are authorized or obligated by law or executive order to close.

 

” Business Facility ” means any facility or real property including the land, the improvements thereon, the groundwater thereunder and the surface water thereon, that is or at any time has been owned, operated, occupied, controlled or leased by Agilent or any of its Subsidiaries or Verigy or any of its Subsidiaries in connection with the operation of the Business or the Transferred Assets.

 

” Business Technology ” shall have the meaning set forth in the Intellectual Property Matters Agreement.

 

” Code ” shall mean the Internal Revenue Code of 1986, as amended.

 

” Consent ” shall mean all licenses, certificates, permits, approvals, clearances, expirations, waivers or terminations of applicable waiting periods, authorizations, qualifications and orders.

 

” Contract ” means any written or oral commitment, contract, subcontract, license, sublicense, lease, understanding, instrument, indenture, note or legally binding commitment or undertaking of any nature.

 

” Customer Contract ” means any Contract between Agilent or any of its Subsidiaries on the one hand and a customer, distributor or dealer of Agilent or any of its Subsidiaries on the other hand for

 

 

the purchase, sale, distribution, marketing, servicing, support or manufacturing (or similar matters) of Automated Semiconductor Test Systems.

 

” Distribution ” has the meaning set forth in the Master Separation Agreement.

 

” Distribution Date ” has the meaning set forth in the Master Separation Agreement.

 

” Employee Matters Agreement ” shall mean the Employee Matters Agreement attached as Exhibit C to the Master Separation Agreement.

 

” Environmental Laws ” shall mean any applicable foreign, federal, state or local Laws, statutes, regulations, codes, ordinances, permits, decrees, orders or common law relating to, or imposing standards regarding the protection or clean up of the environment, any Hazardous Material Activity, the preservation or protection of waterways, groundwater, drinking water, air, wildlife, plants or other natural resources, or the exposure of any individual to Hazardous Materials, including without limitation protection of health and safety of employees. Environmental Laws shall include, without limitation, the Federal Insecticide, Fungicide Rodenticide Act, Resource Conservation & Recovery Act, Clean Water Act, Safe Drinking Water Act, Atomic Energy Act, Occupational Safety and Health Act, Toxic Substance Control Act, Clean Air Act, Comprehensive Environmental Response, Compensation and Liability Act, Emergency Planning and Community Right to Know Act, Hazardous Materials Transportation Act and all analogous or related foreign, federal state or local law, each as amended.

 

” Excluded Assets ” shall mean the assets of Agilent and its Subsidiaries other than the Transferred Assets, the Business Technology, the Transferred Intellectual Property Rights and the Transferred Licenses, including, without limitation, those assets identified on Exhibit D .

 

” Excluded Liabilities ” shall have the meaning set forth in Section 2.2(b).

 

” Excluded Transferred Employee Liabilities ” shall have the meaning set forth in the Employee Matters Agreement.

 

” Flextronics ” shall have the meaning set forth in the Master Separation Agreement.

 

” Flextronics Transfer Agreements ” shall have the meaning set forth in the Master Separation Agreement.

 

” GAAP ” shall have the meaning set forth in the Master Separation Agreement.

 

” Global Reorganization and Restructuring Plan ” shall mean the Global Reorganization and Restructuring Plan in substantially the form attached to this Agreement as Exhibit E pursuant to which certain Transferred Assets and Assumed Liabilities with be transferred between the Parties and their Affiliates in connection with the Separation.

 

” Governmental Authority ” shall mean any United States, supranational or foreign, federal, state, provincial, municipal or local government, government agency, court of competent jurisdiction, administrative agency, court of competent jurisdiction, administrative agency or commission or other governmental or regulatory authority or instrumentality.

 

” Hazardous Materials ” shall mean any infectious, carcinogenic, radioactive, toxic or hazardous chemical or chemical compound, or any pollutant, contaminant or hazardous substance, material or waste, in each case, whether solid, liquid or gas, including, without limitation, petroleum, petroleum products, by products or derivatives, asbestos, microbiological pollutants, batteries or liquid solvents or similar chemicals, radon gas, mildew, fungus, mold, bacteria and/or other organic spore material, and any other substance, material or waste that