EXHIBIT 2.12
MASTER CONFIDENTIAL DISCLOSURE AGREEMENT
between
HEWLETT-PACKARD COMPANY
and
AGILENT TECHNOLOGIES, INC.
Effective as of ___________, 1999
MASTER CONFIDENTIAL DISCLOSURE AGREEMENT
This Master Confidential Disclosure Agreement (the "Agreement") is
effective as of __________, 1999 (the "Effective Date"), between Hewlett-Packard
Company, a Delaware corporation ("HP"), having an office at 3000 Hanover Street,
Palo Alto, California 94304 and Agilent Technologies, Inc., a Delaware
corporation ("Agilent"), having an office at 3000 Hanover Street, Palo Alto,
California 94304.
WHEREAS, the Board of Directors of HP has determined that it is in the best
interest of HP and its stockholders to separate HP's existing businesses into
two independent businesses;
WHEREAS, as part of the foregoing, HP and Agilent have entered into a
Master Separation Agreement (as defined below), which provides, among other
things, for the separation of certain Agilent assets and Agilent liabilities,
the initial public offering of Agilent stock, the distribution of such stock and
the execution and delivery of certain other agreements in order to facilitate
and provide for the foregoing; and
WHEREAS, also as part of the foregoing, the parties further desire to enter
into this Agreement to provide for the protection of their Confidential
Information (as defined below).
NOW, THEREFORE, in consideration of the mutual promises of the parties, and
of good and valuable consideration, it is agreed by and between the parties as
follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement the following capitalized terms are
defined in this Article I and shall have the meaning specified herein:
1.1 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
Exhibit A hereto and, with respect to Agilent, any entity in which Agilent holds
a 50% or less ownership interest and that is listed on Exhibit A hereto;
provided, however, that any such entity listed in Exhibit A shall be considered
to be an Affiliated Company under this Agreement only if it agrees in writing to
be bound by the terms and conditions of this Agreement. Exhibit A may be amended
from time to time after the date hereof upon mutual consent of the parties.
1.2 ANCILLARY AGREEMENTS. "Ancillary Agreements" means the items and
agreements listed in Section 2.1 of the Master Separation Agreement and all
agreements and documents contemplated by such agreements.
1.3 CONFIDENTIAL INFORMATION.
(a) "Confidential Information" means information, technical data and
know-how which is not otherwise in the public domain and of which the owner
actively undertakes to restrict or
control the disclosure to Third Parties in a manner reasonably intended to
maintain its confidentiality, and which is either (i) the subject of any
Transaction Agreement and known to or in the possession of the Receiving Party
as of the Separation Date or (ii) disclosed to the Receiving Party pursuant to
any Transaction Agreement during the period from the Separation Date to November
1, 2001. Confidential Information may include information relating to, by way of
example, research, products, services, customers, markets, software,
developments, inventions, processes, designs, drawings, engineering, marketing
or finances, and may be in writing, disclosed orally or learned by inspection of
computer programming code, equipment or facilities.
(b) Confidential Information of Third Parties that is known to, in the
possession of or acquired by a Receiving Party pursuant to a relationship with
the Disclosing Party shall be deemed the Disclosing Party's Confidential
Information for purposes herein.
(c) Notwithstanding the foregoing provisions of this Section 1.3,
Confidential Information shall exclude information that: (i) was in the
Receiving Party's possession before receipt from the Disclosing Party and
obtained from a source other than the Disclosing Party and other than through
the prior relationship of the Disclosing Party and the Receiving Party before
the Separation Date; (ii) is or becomes a matter of public knowledge through no
fault of the Receiving Party; (iii) is rightfully received by the Receiving
Party from a Third Party without a duty of confidentiality; (iv) is disclosed by
the Disclosing Party to a Third Party without a duty of confidentiality on the
Third Party; (v) is independently developed by the Receiving Party; (iv) is
disclosed under operation of law; or (vii) is disclosed by the Receiving Party
with the Disclosing Party's prior written approval.
1.4 CONFIDENTIALITY PERIOD. "Confidentiality Period" means, (i) with
respect to Confidential Information that is not Highly Confidential Information,
three (3) years, and (ii) with respect to Highly Confidential Information, ten
(10) years, after either (A) the Separation Date with respect to Confidential
Information of the Disclosing Party that is known to or in the possession of the
Receiving Party as of the Separation Date or (B) the date of disclosure with
respect to Confidential Information that is disclosed by the Disclosing Party to
the Receiving Party after the Separation Date. Notwithstanding the foregoing,
the Confidentiality Period with respect to Highly Confidential Information
described in Section 1.7(ii) shall continue only for so long as the restriction
in Article IV of the ICBD Technology Agreement continues with respect to such
Highly Confidential Information, but, in any event no less than three (3) years.
1.5 DISCLOSING PARTY. "Disclosing Party" means the party owning or
disclosing the relevant Confidential Information.
1.6 DISTRIBUTION DATE. "Distribution Date" has the meaning set forth in the
Master Separation Agreement.
1.7 HIGHLY CONFIDENTIAL INFORMATION. "Highly Confidential Information"
means Confidential Information that is (i) source code for products that are
commercially released or for which substantial steps have been taken to
commercialization; (ii) ICBD Technology (as defined in the ICBD Technology
Agreement) that is Confidential Information; or (iii) listed in the Highly
Confidential Information Database.
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1.8 HIGHLY CONFIDENTIAL INFORMATION DATABASE. "Highly Confidential
Information Database" means the Highly Confidential Information Database, as it
may be updated by the parties upon mutual agreement to add Highly Confidential
Information.
1.9 ICBD TECHNOLOGY AGREEMENT. "ICBD Technology Agreement" means the ICBD
Technology Ownership and License Agreement between the parties.
1.10 MASTER SEPARATION AGREEMENT. "Master Separation Agreement" means the
Master Separation and Distribution Agreement between the parties.
1.11 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.
1.12 RECEIVING PARTY. "Receiving Party" means the non-owning party or
recipient of the relevant Confidential Information.
1.13 SEPARATION DATE. "Separation Date" means 12:01 a.m., Pacific Time,
November 1, 1999 or such other date as may be fixed by the Board of Directors of
HP.
1.14 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 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 the 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 (as defined in the Master Separation Agreement), including the
actions taken pursuant to the Non-US Plan (as defined in the Master Separation
Agreement). For example, if HP owns 70% of the stock of another corporation, and
that corporation owns 60% of the equity interest of a limited liability company,
then that corporation is a Subsidiary of HP but that limited liability company
is not. However, if such corporation owns 90% of the equity interest of a
limited liability company, then that limited liability company is a Subsidiary
of HP. For the avoidance of doubt, this definition of Subsidiary is different
from the definition of Subsidiary in the Master Separation Agreement.
1.15 THIRD PARTY. "Third Party" means a Person other than HP and its
Subsidiaries and Affiliated Companies and Agilent and its Subsidiaries and
Affiliated Companies.
1.16 TRANSACTION AGREEMENTS. "Transaction Agreements" means the Master
Separation Agreement and the Ancillary Agreements.
ARTICLE II
CONFIDENTIALITY
2.1 CONFIDENTIALITY AND NON-USE OBLIGATIONS. During the Confidentiality
Period, the Receiving Party shall (i) protect the Confidential Information of
the Disclosing Party by using the same degree of care, but no less than a
reasonable degree of care, to prevent the
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unauthorized use, dissemination, or publication of the Confidential Information
as Receiving Party uses to protect its own confidential information of a like
nature, (ii) not use such Confidential Information in violation of any use
restriction in any Transaction Agreement, and (iii) not disclose such
Confidential Information to any Third Party, except as expressly permitted under
this Agreement, in the Transaction Agreements or in any other agreements entered
into between the parties in writing, without prior written consent of the
Disclosing Party.
2.2 DISCLOSURE TO SUBLICENSEES. The Receiving Party has the right to
disclose to its sublicensees permitted under a Transaction Agreement portions of
Confidential Information as reasonably necessary in the exercise of the
Receiving Party's sublicense rights under such Transaction Agreement, subject to
the sublicensee's agreement in writing to confidentiality and non-use terms at
least as protective of the Disclosing Party as the provisions of this Agreement.
2.3 CONTRACT MANUFACTURERS AND FOUNDRIES. The Receiving Party has the right
to disclose to its contract manufacturers and foundries permitted under any
Transaction Agreement portions of the Confidential Information as reasonably
necessary in the exercise of the Receiving Party's "have made" rights under any
Transaction Agreement, subject to the contract manufacturer's and foundry's
agreement in writing to confidentiality and non-use terms at least as protective
of the Disclosing Party as the provisions of this Agreement.
2.4 RESIDUALS. Notwithstanding any other provision of this Agreement, the
Receiving Party shall be free, and the Disclosing Party hereby grants to the
Receiving Party the right, to use for any purpose the Residuals resulting from
access to or work with the Confidential Information of the Disclosing Party.
"Residuals" means information retained in the unaided memory of an individual
who has had access to Confidential Information without conscious attempt by such
individual to memorize such information. The Receiving Party shall have no
obligation to pay royalties for any use of Residuals.
2.5 COMPELLED DISCLOSURE. If the Receiving Party or any of its respective
Subsidiaries or Affiliated Companies believes that it will be compelled by a
court or other authority to disclose Confidential Information of the Disclosing
Party, it shall (i) give the Disclosing Party prompt written notice so that the
Disclosing Party may take steps to oppose such disclosure, but in any event the
Receiving Party shall not be prohibited from complying with such requirement and
(ii) cooperate with the Disclosing Party in its attempts to oppose such
disclosure.
2.6 NO RESTRICTION ON DISCLOSING PARTY. Nothing in this Agreement shall
restrict the Disclosing Party from using, disclosing, or disseminating its own
Confidential Information in any way.
2.7 NO RESTRICTION ON REASSIGNMENT. This Agreement shall not restrict
reassignment of the Receiving Party's employees.
2.8 THIRD PARTY RESTRICTIONS. Nothing in the Agreement supersedes any
restriction imposed by Third Parties on their Confidential Information, and
there is no obligation on the Disclosing Party to conform Third Party agreements
to the terms of this Agreement.
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ARTICLE III
WARRANTY DISCLAIMER
EACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS
PROVIDED ON AN "AS IS, WHERE IS" BASIS AND THAT NEITHER PARTY NOR ANY OF ITS
SUBSIDIARIES OR AFFILIATED COMPANIES HAS MADE OR WILL MAKE ANY WARRANTY
WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
ENFORCEABILITY OR NON-INFRINGEMENT.
ARTICLE IV
CONFIDENTIALITY OF AGREEMENT
Each party agrees that the terms and conditions of the Transaction
Agreements marked as confidential shall be treated as Confidential Information
and that neither party will disclose such terms or conditions to any Third Party
without the prior written consent of the other party, provided, however, that
each party may disclose such terms and conditions of such agreements marked as
confidential:
(a) as required by any court or other governmental body (subject to
Section 2.5);
(b) as otherwise required by law (subject to Section 2.5);
(c) in confidence, to legal counsel of the parties, accountants, and
other professional advisors;
(d) in confidence to banks, investors and other financing sources and
their advisors;
(e) in connection with the enforcement of this Agreement or rights
under this Agreement; or
(f) in confidence, in connection with an actual or prospective merger
or acquisition or similar transaction.
ARTICLE V
TERM AND TERMINATION
5.1 TERM. This Agreement shall remain in full force and effect unless and
until terminated by the mutual written agreement of the parties.
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5.2 SURVIVAL. Articles II (with respect to Confidential Information
acquired or disclosed prior to the date of termination), III, IV, VI, VII and
VIII shall survive any termination of this Agreement.
ARTICLE VI
DISPUTE RESOLUTION
6.1 NEGOTIATION. The parties shall make a good faith attempt to resolve any
dispute or claim arising out of or related to this Agreement through
negotiation. Within thirty (30) days after notice of a dispute or claim is given
by either party to the other party, the parties' first tier negotiating teams
(as determined by each party's Director of Intellectual Property or his or her
delegate) shall meet and make a good faith attempt to resolve such dispute or
claim and shall continue to negotiate in good faith in an effort to resolve the
dispute or claim or renegotiate the applicable section or provision without the
necessity of any formal proceedings. If the first tier negotiating teams are
unable to agree within thirty (30) days of their first meeting, then the
parties' second tier negotiating teams (as determined by each party's Director
of Intellectual Property or his or her delegate) shall meet within thirty (30)
days after the end of the first thirty (30) day negotiating period to attempt to
resolve the matter. During the course of negotiations under this Section 6.1,
all reasonable requests made by one party to the other for information,
including requests for copies of relevant documents, will be honored. The
specific format for such negotiations will be left to the discretion of the
designated negotiating teams but may include the preparation of agreed upon
statements of fact or written statements of position furnished to the other
party.
6.2 NONBINDING MEDIATION. In the event that any dispute or claim arising
out of or related to this Agreement is not settled by the parties within fifteen
(15) days after the first meeting of the second tier negotiating teams under
Section 6.1, the parties will attempt in good faith to resolve such dispute or
claim by nonbinding mediation in accordance with the American Arbitration
Association Commercial Mediation Rules. The mediation shall be held within
thirty (30) days of the end of such fifteen (15) day negotiation period of the
second tier negotiating teams. Except as provided below in Section 6.3, no
litigation for the resolution of such dispute may be commenced until the parties
try in good faith to settle the dispute by such mediation in accordance with
such rules and either party has concluded in good faith that amicable resolution
through continued mediation of the matter does not appear likely. The costs of
mediation shall be shared equally by the parties to the mediation. Any
settlement reached by mediation shall be recorded in writing, signed by the
parties, and shall be binding on them.
6.3 PROCEEDINGS. Nothing herein, however, shall prohibit either party from
initiating litigation or other judicial or administrative proceedings if such
party would be substantially harmed by a failure to act during the time that
such good faith efforts are being made to resolve the dispute or claim through
negotiation or mediation. In the event that litigation is commenced under this
Section 6.3, the parties agree to continue to attempt to resolve any dispute or
claim according to the terms of Sections 6.1 and 6.2 during the course of such
litigation proceedings under this Section 6.3.
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ARTICLE VII
LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES OR AFFILIATED COMPANIES
BE LIABLE TO THE OTHER PARTY OR ITS SUBSIDIARIES OR AFFILIATED COMPANIES FOR ANY
SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST
PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE)
ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 EXPORT RESTRICTIONS. Both parties shall adhere to all applicable laws,
regulations and rules relating to the export of technical data, and shall not
export or reexport any technical data, any products received from Disclosing
Party, or the direct product of such technical data, to any proscribed country
listed in such applicable laws, regulations and rules unless properly
authorized.
8.2 NO IMPLIED LICENSES. Nothing contained in this Agreement shall be
construed as conferring any rights by implication, estoppel or otherwise, under
any intellectual property right, other than the rights expressly granted in this
Agreement with respect to Confidential Information. Neither party is required
hereunder to furnish or disclose to the other any technical or other
information.
8.3 INFRINGEMENT SUITS. Neither party shall have any obligation hereunder
to institute any action or suit against Third Parties for misappropriation of
any of its Confidential Information or to defend any action or suit brought by a
Third Party that alleges infringement of any intellectual property rights by the
Receiving Party's authorized use of the Disclosing Party's Confidential
Information.
8.4 NO OTHER OBLIGATIONS. NEITHER PARTY ASSUMES ANY RESPONSIBILITIES OR
OBLIGATIONS WHATSOEVER, OTHER THAN THE RESPONSIBILITIES AND OBLIGATIONS
EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN AGREEMENT BETWEEN
THE PARTIES.
8.5 ENTIRE AGREEMENT. This Agreement, the Master Separation Agreement and
the other Ancillary Agreements constitute the entire agreement between the
parties with respect to the subject matter hereof and shall supersede all prior
written and oral and all contemporaneous oral agreements and understandings with
respect to the subject matter hereof. Notwithstanding the foregoing, the parties
agree that any agreements entered into between them on or after the Separation
Date for the protection of specific Confidential Information shall supersede the
terms of this Agreement with respect to such Confidential Information.
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8.6 GOVERNING LAW. This Agreement shall be governed by and construed and
enforced 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.
8.7 DESCRIPTIVE HEADINGS. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
8.8 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered in person, by
telecopy with answer back, by express or overnight mail delivered by a
nationally recognized air courier (delivery charges prepaid), by registered or
certified mail (postage prepaid, return receipt requested) or by e-mail with
receipt confirmed by return e-mail to the respective parties as follows:
if to HP:
c/o Hewlett-Packard Company
3000 Hanover Street
Palo Alto, CA 94304
Attention: Associate General Counsel and
Director of Intellectual Property
Telecopy: (650) 852-8194
if to Agilent:
c/o Agilent Technologies, Inc.
3000 Hanover Street
Palo Alto, CA 94304
Attention: Assistant General Counsel and
Director of Intellectual Property
Telecopy: (650) 813-3095
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing in the manner set forth above. Any
notice or communication delivered in person shall be deemed effective on
delivery. Any notice or communication sent by e-mail, telecopy or by air
courier shall be deemed effective on the first Business Day following the day on
which such notice or communication was sent. Any notice or communication sent
by registered or certified mail shall be deemed effective on the third Business
Day following the day on which such notice or communication was mailed. As used
in this Section 8.8, "Business Day" means any day other than a Saturday, a
Sunday or a day on which banking institutions located in the State of California
are authorized or obligated by law or executive order to close.
8.9 NONASSIGNABILITY. Neither party may, directly or indirectly, in whole
or in part, whether by operation of law or otherwise, assign or transfer this
Agreement, without the other party's prior written consent, and any attempted
assignment, transfer or delegation without such prior written consent shall be
voidable at the sole option of such other party. Notwithstanding the
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foregoing,each party (or its permitted successive assignees or transferees
hereunder) may assign or transfer this Agreement as a whole without consent to a
Person that succeeds to all or substantially all of the business or assets of
such party. Without limiting the foregoing, this Agreement will be binding upon
and inure to the benefit of the parties and their permitted successors and
assigns.
8.10 SEVERABILITY. If any term or other provision of this Agreement is
determined by a nonappealable decision of a court, administrative agency or
binding arbitrator by any court or in any binding arbitration to be invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible.
8.11 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of either party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty or agreement herein, nor shall any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
8.12 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.
8.13 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which, taken together, shall be considered to be one and
the same instrument.
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WHEREFORE, the parties have signed this Master Confidential Disclosure
Agreement effective as of the date first set forth above.
HEWLETT-PACKARD COMPANY AGILENT TECHNOLOGIES, INC.
By:___________________________ By:______________________________
Name:_________________________ Name:____________________________
Title:________________________ Title:___________________________
EXHIBIT A
TO MASTER CONFIDENTIAL DISCLOSURE AGREEMENT
AFFILIATED COMPANIES
1. Hewlett-Packard Company Affiliated Companies
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ImagineCard
Idea LLC
Intria-HP
Intria-HP Potomac
Ericsson-HP Telecom (Sweden)
Ericsson-HP Telecom (France)
Hua-Pua
Putial Ome
PT Berka Services
Liquidity Management Group
Hugin Expert
Syc
Sopura Systems
2. Agilent Affiliated Companies
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Chartered Semiconductor Partners Singapore
LumiLEDS