UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 9, 2008
AGILENT TECHNOLOGIES, INC. |
(Exact name of registrant as specified in its charter) |
Delaware |
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001-15405 |
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77-0518772 |
(State or other jurisdiction |
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(Commission |
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(IRS Employer |
of incorporation) |
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File Number) |
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Identification No.) |
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5301 Stevens Creek Boulevard, Santa Clara, CA |
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95051 |
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(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code (408) 553-2424
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
Amended and Restated Indemnification Agreement
The Compensation Committee of the Board of Directors of Agilent Technologies, Inc. (the Company), approved a new form of Indemnification Agreement (the New Indemnification Agreement) to be entered into with its directors, Section 16 executive officers and other Board-elected officers of the Company. Effective April 9, 2008, copies of the New Indemnification Agreement were executed on behalf of the Company and were distributed to the eligible individuals for counter-signature.
For the current directors and executive officers of the Company who had entered into the Companys previous form of indemnification agreement, the entry into the New Indemnification Agreement will amend and restate the previous agreement. As is the case with the previous form of indemnification agreement, the New Indemnification Agreement commits the Company to indemnify the indemnitee to the fullest extent permitted under Delaware law.
The New Indemnification Agreement incorporates changes in the General Corporation Law of Delaware providing that the Companys obligation to make advance payments of expenses to indemnitees is subject to the Companys receipt of an undertaking by or on behalf of the indemnitee to repay the amounts advanced, if and when and to the extent such indemnitee would not be permitted to be so indemnified under applicable law. The New Indemnification Agreement also limits the recovery of expenses by indemnitees to those that are actually and reasonably incurred.
The foregoing summary of the New Indemnification Agreement is qualified in its entirety by reference to Exhibit 10.01 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers.
Amended and Restated Change of Control Severance Agreements
Upon a recommendation of the Compensation Committee, the Companys Board of Directors (the Board) amended and restated the forms of Change of Control Severance Agreements to be entered into by the Companys Chief Executive Officer (the CEO Agreement), Section 16 Officers (the Section 16 Agreement) and specified non-Section 16 executives of the Company (the Executive Agreement and collectively with the CEO Agreement and Section 16 Agreement, the Amended and Restated Change of Control Agreements). Effective April 9, 2008, the Amended and Restated Change of Control Agreements were executed on behalf of the Company and were distributed to the eligible individuals for counter-signature.
The conditions under which severance benefits become payable under the Amended and Restated Change of Control Agreements are substantially the same as those under the prior change of control severance agreements. In general, two conditions must be met: (i) a change of control, as defined in the agreement, must have occurred and (ii) (a) the executives employment is involuntarily terminated without cause, (b) the executive resigns due to an event constituting a constructive termination of employment, or (c) prior to a change of control the executive is terminated without cause, or resigns because of a Company action constituting constructive termination of employment, which termination or Company action was at the request of an acquiror of the Company. The involuntary or voluntary termination in (a) and (b) must
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occur within the period beginning 3 months before and ending 24 months following a change of control of the Company.
The severance benefits under the Amended and Restated Change of Control Agreements are substantially the same as those under the prior change of control severance agreements and consist of the following: (i) a severance payment for the CEO, Section 16 Officers and other officers equal to three times, two times and one time, respectively, of such officers annual base salary and target bonus; (ii) a lump sum cash payment in lieu of continued COBRA benefits; (iii) vesting of all outstanding non-performance-based stock options and restricted stock; and (iv) the prorated amount, if any, of any amount otherwise payable based on actual performance under any applicable variable pay programs.
Additional key amendments to the Amended and Restated Change of Control Agreements include eliminating the non-compete provision, allowing the Company to make non-material and non-adverse changes to the agreements without the executives consent, providing an excise tax gross-up and addressing other potential tax consequences under the Internal Revenue Code of 1986, as amended.
The foregoing summary of the Amended and Restated Change of Control Agreements is qualified in its entirety by reference to Exhibits 10.2, 10.3 and 10.4 of this Current Report on Form 8-K and are incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. |
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Description |
10.1 |
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Form of Agilent Technologies, Inc. Amended and Restated Indemnification Agreement between Agilent Technologies, Inc. and Directors of the Company, Section 16 Officers and Board-elected Officers of the Company. |
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10.2 |
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Form of Amended and Restated Change of Control Severance Agreement between Agilent Technologies, Inc. and the Chief Executive Officer. |
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10.3 |
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Form of Amended and Restated Change of Control Severance Agreement between Agilent Technologies, Inc. and Section 16 Officers (other than the Companys Chief Executive Officer). |
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10.4 |
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Form of Amended and Restated Change of Control Severance Agreement between Agilent Technologies, Inc. and specified Executives of the Company. |
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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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AGILENT TECHNOLOGIES, INC. |
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By: |
/s/ Marie Oh Huber |
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Name: |
Marie Oh Huber |
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Title: |
Vice President, Deputy General Counsel and |
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Assistant Secretary |
Date: April 10, 2008
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EXHIBIT INDEX
Exhibit No. |
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Description |
10.1 |
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Form of Agilent Technologies, Inc. Amended and Restated Indemnification Agreement between Agilent Technologies, Inc. and Directors of the Company, Section 16 Officers and Board-elected Officers of the Company. |
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10.2 |
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Form of Amended and Restated Change of Control Severance Agreement between Agilent Technologies, Inc. and the Chief Executive Officer. |
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10.3 |
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Form of Amended and Restated Change of Control Severance Agreement between Agilent Technologies, Inc. and Section 16 Officers (other than the Companys Chief Executive Officer). |
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10.4 |
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Form of Amended and Restated Change of Control Severance Agreement between Agilent Technologies, Inc. and specified Executives of the Company. |
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EXHIBIT 10.1
[FORM OF]
AGILENT TECHNOLOGIES, INC.
AMENDED AND RESTATED
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (Agreement) is entered into as of April , 2008 by and between Agilent Technologies, Inc., a Delaware corporation (the Company ) and ( Indemnitee ).
RECITALS
A. The Company and Indemnitee recognize the continued difficulty in obtaining liability insurance for its directors, officers, employees, agents and fiduciaries, the significant increases in the cost of such insurance and the general reductions in the coverage of such insurance.
B. The Company and Indemnitee further recognize the substantial increase in corporate litigation in general, subjecting directors, officers, employees, agents and fiduciaries to expensive litigation risks at the same time as the availability and coverage of liability insurance has been severely limited.
C. Indemnitee does not regard the current protection available as adequate under the present circumstances, and Indemnitee and other directors, officers, employees, agents and fiduciaries of the Company may not be willing to continue to serve in such capacities without additional protection.
D. The Company desires to attract and retain the services of highly qualified individuals, such as Indemnitee, to serve the Company and, in part, in order to induce Indemnitee to continue to provide services to the Company, wishes to provide for the indemnification and advancing of expenses to Indemnitee to the maximum extent permitted by law.
E. In view of the considerations set forth above, the Company desires that Indemnitee be indemnified by the Company as set forth herein.
NOW, THEREFORE , the Company and Indemnitee hereby agree as follows:
1. Indemnification .
(a) Indemnification of Expenses . The Company shall indemnify Indemnitee to the fullest extent permitted by law if Indemnitee was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, any threatened, pending or completed action, suit, proceeding or alternative dispute resolution mechanism, or any hearing, inquiry or investigation that
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Indemnitee in good faith believes might lead to the institution of any such action, suit, proceeding or alternative dispute resolution mechanism, whether civil, criminal, administrative, investigative or other (hereinafter a Claim) by reason of (or arising in part out of) any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or any subsidiary of the Company, or is or was serving at the request of the Company as a director, officer, employee, agent or fiduciary of another corporation, limited liability company, partnership, joint venture, trust or other enterprise, or by reason of any action or inaction on the part of Indemnitee while serving in such capacity (hereinafter an Indemnifiable Event) against any and all expenses (including attorneys fees and all other costs, expenses and obligations actually and reasonably incurred by Indemnitee on his behalf in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any such action, suit, proceeding, alternative dispute resolution mechanism, hearing, inquiry or investigation), judgments, fines, penalties and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) of such Claim and any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement (collectively, hereinafter Expenses), including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses. Such payment of Expenses shall be made by the Company as soon as practicable but in any event no later than five days after written demand by Indemnitee therefore is presented to the Company.
(b) Reviewing Party . Notwithstanding the foregoing, (i) the obligations of the Company under Section 1(a) shall be subject to the condition that the Reviewing Party (as described in Section 10(e) hereof) shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 1(c) hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an advance payment of Expenses to Indemnitee pursuant to Section 2(a) (an Expense Advance) shall be subject to the Companys receipt of an undertaking by or on behalf of the Indemnitee to repay such amount advanced, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). Indemnitees obligation to reimburse the Company for any Expense Advance shall be unsecured and no interest shall be charged thereon. If there has not been a Change in Control (as defined in Section 10(c) hereof), the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved
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by a majority of the Companys Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 1(c) hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
(c) Change in Control . The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Companys Board of Directors who were directors immediately prior to such Change in Control) then, with respect to all matters thereafter arising concerning the rights of Indemnitees to payments of Expenses and Expense Advances under this Agreement or any other agreement or under the Companys Certificate of Incorporation or Bylaws as now or hereafter in effect, Independent Legal Counsel (as defined in Section 10(d) hereof) shall be selected by Indemnitee and approved by the Company (which approval shall not beunreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law and the Company agrees to abide by such opinion. The Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to fully indemnify such counsel against any and all expenses (including attorneys fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(d) Mandatory Payment of Expenses . Notwithstanding any other provision of this Agreement other than Section 9 hereof, to the extent that Indemnitee has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, in defense of any action, suit, proceeding, inquiry or investigation referred to in Section (1)(a) hereof or in the defense of any claim, issue or matter therein, in whole or in part, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee in connection therewith.
2. Expenses; Indemnification Procedure .
(a) Advancement of Expenses . The Company shall advance all Expenses incurred by Indemnitee upon receipt of an undertaking by or on behalf of the Indemnitee to repay such amounts advanced to the extent required by applicable law. The advances to be made hereunder shall be paid by the Company to Indemnitee as soon as practicable but in any event no later than five days after written demand by Indemnitee therefor to the Company.
(b) Notice/Cooperation by Indemnitee . Indemnitee shall, as a condition precedent to Indemnitees right to be indemnified under this Agreement, give the
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Company notice in writing as soon as practicable of any Claim made against Indemnitee for which indemnification will or could be sought under this Agreement. Notice to the Company shall be directed to the Chief Executive Officer of the Company at the address shown on the signature page of this Agreement (or such other address as the Company shall designate in writing to Indemnitee). In addition, Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitees power.
(c) No Presumptions; Burden of Proof . For purposes of this Agreement, to the fullest extent permitted by applicable law, the termination of any Claim by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law, shall be a defense to Indemnitees claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
(d) Notice to Insurers . If, at the time of the receipt by the Company of a notice of a Claim pursuant to Section 2(b) hereof, the Company has liability insurance in effect which may cover such Claim, the Company shall give prompt notice of the commencement of such Claim to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such action, suit, proceeding, inquiry or investigation in accordance with the terms of such policies.
(e) Selection of Counsel . In the event the Company shall be obligated hereunder to pay the Expenses of any Claim, the Company shall be entitled to assume the defense of such Claim with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same Claim; provided that, (i) Indemnitee shall have the right to employ Indemnitees counsel in any such Claim at Indemnitee expense and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there is a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the
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Company shall not continue to retain such counsel to defend such Claim, then the fees and expenses of Indemnitee counsel shall be at the expense of the Company. The Company shall have the right to conduct such defense as it sees fit in its sole discretion, including the right to settle any claim against Indemnitee without the consent of the Indemnitee.
3. Additional Indemnification Rights; Nonexclusivity .
(a) Scope . The Company hereby agrees to indemnify Indemnitee to the fullest extent permitted by law, notwithstanding that such indemnification is not specifically authorized by the other provisions of this Agreement, the Companys Certificate of Incorporation, the Companys Bylaws or by statute. In the event of any change after the date of this Agreement in any applicable law, statute or rule which expands the right of a Delaware corporation to indemnify a member of its Board of Directors or an officer, employee, agent or fiduciary, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits afforded by such change. In the event of any change in any applicable law, statute or rule which narrows the right of a Delaware corporation to indemnify a member of its Board of Directors or an officer, employee, agent or fiduciary, such change, to the extent not otherwise required by such law, statute or rule to be applied to this Agreement, shall have no effect on this Agreement or the parties rights and obligations hereunder except as set forth in Section 8(a) hereof.
(b) Nonexclusivity . The indemnification provided by this Agreement shall be in addition to any rights to which Indemnitee may be entitled under the Companys Certificate of Incorporation, its Bylaws, any agreement, any vote of stockholders or disinterested directors, the General Corporation Law of the State of Delaware, or otherwise. The indemnification provided under this Agreement shall continue as to Indemnitee for any action Indemnitee took or did not take while serving in an indemnified capacity even though Indemnitee may have ceased to serve in such capacity.
4. No Duplication of Payments . The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Certificate of Incorporation, Bylaw or otherwise) of the amounts otherwise indemnifiable or subject to a claim for advancement hereunder.
5. Partial Indemnification . If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Claim, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee are entitled.
6. Mutual Acknowledgement . Both the Company and Indemnitee acknowledge that in certain instances, Federal law or applicable public policy may prohibit the Company from indemnifying its directors, officers, employees, agents or fiduciaries
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under this Agreement or otherwise. Indemnitee understands and acknowledges that the Company has undertaken or may be required in the future to undertake with the Securities and Exchange Commission to submit the question of indemnification to a court in certain circumstances for a determination of the Companys right under public policy to indemnify Indemnitee.
7. Liability Insurance . To the extent the Company maintains liability insurance applicable to directors, officers, employees, agents or fiduciaries, Indemnitee shall be covered by such policies in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured of the Companys directors, if Indemnitee is a director; or of the Companys officers, if Indemnitee is not a director of the Company but is an officer; or of the Companys key employees, agents or fiduciaries, if Indemnitee is not an officer or director but is a key employee, agent or fiduciary.
8. Exceptions . Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement :
(a) Excluded Action or Omissions . (i) To indemnify Indemnitee for Indemnitees acts, omissions or transactions from which Indemnitee or the Indemnitee may not be indemnified under applicable law; or (ii) to indemnify Indemnity for Indemnitys intentional acts or transactions in violation of the Companys policies;
(b) Claims Initiated by Indemnitee . To indemnify or advance expenses to Indemnitee with respect to Claims initiated or brought voluntarily by Indemnitee and not by way of defense, except (i) with respect to actions or proceedings brought to establish or enforce a right to indemnification under this Agreement or any other agreement or insurance policy or under the Companys Certificate of Incorporation or Bylaws now or hereafter in effect relating to Claims for Indemnifiable Events, but only to the event Indemnitee is successful on the underlying claim for such indemnification, advance expense payment or insurance recovery, as the case may be, (ii) in specific cases if the Board of Directors has approved the initiation or bringing of such Claim, or (iii) as otherwise required under Section 145 of the Delaware General Corporation Law,
(c) Lack of Good Faith . To indemnify Indemnitee for any expenses incurred by Indemnitee with respect to any proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous; or
(d) Claims Under Section 16(b) . To indemnify Indemnitee for expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.
9. Period of Limitations . No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitees
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estate, spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action, such shorter period shall govern.
10. Construction of Certain Phrases .
(a) For purposes of this Agreement, references to the Company shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee, agent or fiduciary of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to other enterprises shall include employee benefit plans; references to fines shall include any excise taxes assessed on Indemnitee with respect to an employee benefit plan; and references to serving at the request of the Company shall include any service as a director, officer, employee, agent or fiduciary of the Company which imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan, its participants or its beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner not opposed to the best interests of the Company as referred to in this Agreement.
(c) For purposes of this Agreement a Change in Control shall be deemed to have occurred if (i) any person (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, (A) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 10% or more of the combined voting power of the Companys then outstanding Voting Securities, increases his beneficial ownership of such securities by 5% or more over the percentage so owned by such person, or (B) becomes the beneficial owner (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing more than 20% of the total voting power represented by the Companys then outstanding
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Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Companys stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Companys assets.
(d) For purposes of this Agreement, Independent Legal Counsel shall mean an attorney or firm of attorneys, selected in accordance with the provisions of Section 1(c) hereof, who shall not have otherwise performed services for the Company or Indemnitee within the last three years (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(e) For purposes of this Agreement, a Reviewing Party shall mean, subject to the requirements of applicable law any appropriate person or body consisting of a member or members of the Companys Board of Directors or any other person or body appointed by the Board of Directors who is not a party to the particular Claim for which Indemnitee are seeking indemnification, or Independent Legal Counsel.
(f) For purposes of this Agreement, Voting Securities shall mean any securities of the Company that vote generally in the election of directors.
11. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall constitute an original.
12. Binding Effect; Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, and personal and legal representatives. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all, or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such
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succession had taken place. This Agreement shall continue in effect with respect to Claims relating to Indemnifiable Events regardless of whether Indemnitee continues to serve as a director, officer, employee, agent or fiduciary of the Company or of any other enterprise at the Companys request.
13. Attorneys Fees . In the event that any action is instituted by Indemnitee under this Agreement or under any liability insurance policies maintained by the Company to enforce or interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be paid all Expenses incurred by Indemnitee with respect to such action, , and shall be entitled to the advancement of Expenses with respect to such action to the extent Indemnitee is successful on the underlying claim for such indemnification, advance expense payment or insurance recovery, as the case may be; unless, as a part of such action, a court of competent jurisdiction over such action determines that each of the material assertions made by Indemnitee as a basis for such action was not made in good faith or was frivolous. In the event of an action instituted by or in the name of the Company under this Agreement to enforce or interpret any of the terms of this Agreement, Indemnitee shall be entitled to be paid all Expenses incurred by Indemnitee in defense of such action (including costs and expenses incurred with respect to Indemnitee counterclaims and cross-claims made in such action), and shall be entitled to the advancement of Expenses with respect to such action, unless, as a part of such action, a court having jurisdiction over such action determines that each of Indemnitee material defenses to such action was made in bad faith or was frivolous.
14. Notice . All notices and other communications required or permitted hereunder shall be in writing, shall be effective when given, and shall in any event be deemed to be given (a) five (5) days after deposit with the U.S. Postal Service or other applicable postal service, if delivered by first class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one business day after the business day of deposit with Federal Express or similar overnight courier, freight prepaid, or (d) one day after the business day of delivery by facsimile transmission, if delivered by facsimile transmission, with copy by first class mail, postage prepaid, and shall be addressed if to Indemnitee, at the Indemnitee address as set forth beneath Indemnitee signatures to this Agreement and if to the Company at the address of its principal corporate offices (attention: Secretary) or at such other address as such party may designate by ten days advance written notice to the other party hereto.
15. Consent to Jurisdiction . The Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection with any action or proceeding which arises out of or relates to this Agreement and agree that any action instituted under this Agreement shall be commenced, prosecuted and continued only in the Court of Chancery of the State of Delaware in and for New Castle County, which shall be the exclusive and only proper forum for adjudicating such a claim.
16. Severability . The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or
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otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent possible, the provisions of this Agreement (including, without limitations, each portion of this Agreement containing any provision held to be invalid, void or otherwise unenforceable, that is not itself invalid, void or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
17. Choice of Law . This Agreement shall be governed by and its provisions construed and enforced in accordance with the laws of the State of Delaware, as applied to contracts between Delaware residents, entered into and to be performed entirely within the State of Delaware, without regard to the conflict of laws principles thereof.
18. Subrogation . In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights.
19. Amendment and Termination . No amendment, modification, termination or cancellation of this Agreement shall be effective unless it is in writing signed by both the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
20. Integration and Entire Agreement . This Agreement sets forth the entire understanding between the parties hereto and supersedes and merges all previous written and oral negotiations, commitments, understandings and agreements relating to the subject matter hereof between the parties hereto.
21. No Construction as Employment Agreement . Nothing contained in this Agreement shall be construed as giving Indemnitee any right to be retained in the employ of the Company or any of its subsidiaries.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
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EXHIBIT 10.2
[FORM OF CHIEF EXECUTIVE OFFICER AGREEMENT]
AMENDED & RESTATED
CHANGE OF CONTROL SEVERANCE AGREEMENT
This Change of Control Severance Agreement (the Agreement) is entered into this day of , 2008 (the Effective Date) between (Executive) and Agilent Technologies, Inc., a Delaware corporation (the Company). This Agreement supersedes and replaces all prior agreements and understandings on the matters set forth herein, including but not limited to the Change of Control Severance Agreement dated , 200 (as further amended on , 2004 and on , 2005) between Executive and the Company. This Agreement is intended to provide Executive with the compensation and benefits described herein upon the occurrence of specific events following a change of control of the ownership of the Company (defined as Change of Control).
RECITALS
A. As is the case with most, if not all, publicly-traded businesses, it is expected that the Company from time to time may consider or may be presented with the need to consider the possibility of an acquisition by another company or other change in control of the ownership of the Company. The Board of Directors of the Company (the Board) recognizes that such considerations can be a distraction to Executive and can cause the Executive to consider alternative employment opportunities or to be influenced by the impact of a possible change in control of the ownership of the Company on Executives personal circumstances in evaluating such possibilities. The Board has determined that it is in the best interests of the Company and its shareholders to assure that the Company will have the continued dedication and objectivity of Executive, notwithstanding the possibility, threat or occurrence of a Change of Control of the Company.
B. The Board believes that it is in the best interests of the Company and its shareholders to provide Executive with an incentive to continue his or her employment and to motivate Executive to maximize the value of the Company upon a Change of Control for the benefit of its shareholders.
C. The Board believes that it is important to provide Executive with certain benefits upon Executives termination of employment in certain instances upon or following a Change of Control that provide Executive with enhanced financial security and incentive and encouragement to Executive to remain with the Company notwithstanding the possibility of a Change of Control.
D. At the same time, the Board expects the Company to receive certain benefits in exchange for providing Executive with this measure of financial security and incentive under the Agreement. Therefore, the Board believes that the Executive should provide various specific commitments which are intended to assure the Company that Executive will not direct
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Executives skills, experience and knowledge to the detriment of the Company for a period not to exceed the period during which payments are being made to Executive under this Agreement.
E. Certain capitalized terms used in this Agreement are defined in Article VII.
The Company and Executive hereby agree as follows:
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This Section 3.3 provides only for the Companys payment of the Health Expense Benefit. This Section 3.3 does not affect the rights of Executive or Executives covered dependents under any applicable law with respect to health insurance continuation coverage.
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(whether because subject to joint escrow instructions or otherwise) shall be delivered to Executive or his designee as soon as administratively feasible after the occurrence of a Termination Event. Executives restricted stock awards that are subject to performance-based vesting shall be covered by the terms of the applicable award agreement.
3.7 Compliance with Section 409A . In the event that (i) one or more payments of compensation or benefits received or to be received by Executive pursuant to this Agreement (Agreement Payment) would constitute deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the Code) and (ii) Executive is deemed at the time of such termination of employment to be a specified employee under Section 409A(a)(2)(B)(i) of the Code, then such Agreement Payment shall not be made or commence until the earlier of (i) the expiration of the six (6)-month period measured from the date of Executives separation from service (as such term is at the time defined in Treasury Regulations under Section 409A of the Code) with the Company or (ii) such earlier time permitted under Section 409A of the Code and the regulations or other authority promulgated thereunder; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Executive under Section 409A of the Code, including (without limitation) the additional twenty percent (20%) tax for which Executive would otherwise be
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liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. During any period in which an Agreement Payment to Executive is deferred pursuant to the foregoing, Executive shall be entitled to interest on the deferred Agreement Payment at a per annum rate equal to the highest rate of interest applicable to six (6)-month non-callable certificates of deposit with daily compounding offered by the following institutions: Citibank N.A., Wells Fargo Bank, N.A. or Bank of America, on the date of such separation from service. Upon the expiration of the applicable deferral period, any Agreement Payment which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to Executive or his beneficiary in one lump sum, including all accrued interest.
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4.3 Employee Release Prior to Receipt of Benefits. Upon the occurrence of a Termination Event, and prior to the receipt of any benefits under this Agreement on account of the occurrence of a Termination Event, Executive shall, as of the date of a Termination Event, execute an employee release substantially in the form attached hereto as Exhibit A (Release) as shall be determined by the Company. Such employee Release shall specifically relate to all of Executives rights and claims in existence at the time of such execution relating to Executives employment with the Company, but shall not include (i) Executives rights under this Agreement; (ii) Executives rights under any employee benefit plan sponsored by the Company; or (iii) Executives rights to indemnification under the Companys bylaws or other governing instruments or under any agreement addressing such subject matter between Executive and the Company or under any merger or acquisition agreement addressing such subject matter; (iv) Executives rights of insurance under any liability policy covering the Companys officers or (v) claims which Executive may not Release as a matter of law, including, but not limited to, indemnification claims under applicable law. It is understood that Executive has twenty-one (21) days after receipt of the form of Release from the Company to consider whether to execute such employee Release and Executive may revoke such employee In the event that the Executive has not received a form of Release from the Company by the tenth (10th) day following the Termination Event, the Executive may execute the form of Release attached hereto as Exhibit A and that shall be deemed acceptable to the Company. Release within seven (7) days after execution of such employee release. In the event Executive does not execute such employee Release within the twenty-one (21) day period, or if Executive revokes such employee Release within the seven (7) day period, no benefits shall be payable under this Agreement and this Agreement shall be null and void. Nothing in this Agreement shall limit the scope or time of applicability of such employee Release once it is executed and not timely revoked.
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No benefit hereunder shall be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so shall be void.
For purposes of the Agreement, the following terms shall have the meanings set forth below:
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(iii) The acquisition of beneficial ownership (within the meaning of Rules 13d-3 and 13d-5 promulgated under the Exchange Act) of at least 25% of the total voting power of the outstanding voting securities of the Company by a person or group (as such terms are defined or described in Sections 3(a) (9) and 13(d) (3) of the Exchange Act).
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Agilent
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Exhibit A: Employee General Release
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CONFIDENTIAL
Exhibit A
GENERAL RELEASE AND AGREEMENT
This General Release and Agreement (the Agreement) is made and entered into by (Executive). The Agreement is part of an agreement between Executive and Agilent Technologies, Inc. (Agilent) to terminate Executives employment with Agilent on terms that are satisfactory both to Agilent and to Executive. Therefore, Executive agrees as follows:
1. Executive agrees to attend a Functional Exit Interview on , 20 at which time all company property and identification will be turned in and the appropriate personnel documents will be executed. Thereafter, Executive agrees to do such other acts as may be reasonably requested by Agilent in order to effectuate the terms of this agreement. Executive agrees to remove all personal effects from his current office within seven days of signing this agreement and in any event not later than , 20 .
2. Executive agrees not to make any public statement or statements to the press concerning Agilent, its business objectives, its management practices, or other sensitive information without first receiving Agilents written approval. Executive further agrees to take no action which would cause Agilent or its employees or agents any embarrassment or humiliation or otherwise cause or contribute to Agilents or any such persons being held in disrepute by the general public or Agilents employees, clients, or customers.
3. Executive, on behalf of Executives heirs, estate, executors, administrators, successors and assigns does fully release, discharge, and agree to hold harmless Agilent, its officers, agents, employees, attorneys, subsidiaries, affiliated companies, successors and assigns from all actions, causes of action, claims, judgments, obligations, damages, liabilities, costs, or expense of whatsoever kind and character which he may have, including but not limited to ;
a. any claims relating to employment discrimination on account of race, sex, age, national origin, creed, disability, or other basis, whether or not arising under the Federal Civil Rights Acts, the Age Discrimination in Employment Act, California Fair Employment and Housing Act, the Rehabilitation Act of 1973, the Americans With Disabilities Act, any amendments to the foregoing laws, or any other federal, state, county, municipal, or other law, statute, regulation or order relating to employment discrimination;
b. any claims relating to pay or leave of absence arising under the Fair Labor Standards Act, the Family Medical Leave Act, and any similar laws enacted in California;
c. any claims for reemployment, salary, wages, bonuses, vacation pay, stock options, acquired rights, appreciation from stock options, stock appreciation rights, benefits or other compensation of any kind;
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d. any claims relating to, arising out of, or connected with Executives employment with Agilent, whether or not the same be based upon any alleged violation of public policy; compliance (or lack thereof) with any internal Agilent policy, procedure, practice or guideline; or any oral, written. express, and/or implied employment contract or agreement, or the breach of any terms thereof, including but not limited to, any implied covenant of good faith and fair dealing; or any federal, state, county or municipal law, statute, regulation, or order whether or not relating to labor or employment; and
e. any claims relating to, arising out of, or connected with any other matter or event occurring prior to the execution of this Agreement whether or not brought before any judicial, administrative, or other tribunal.
The foregoing release shall not apply to (i) Executives rights under the Amended and Restated Change of Control Severance Agreement between Executive and the Company; (ii) Executives rights under any employee benefit plan sponsored by the Company; (iii) Executives rights to indemnification under the Companys bylaws or other governing instruments or under any agreement addressing such subject matter between Executive and the Company or under any merger or acquisition agreement addressing such subject matter; (iv) Executives rights of insurance under any liability policy covering the Companys officers or (v) claims which Executive may not release as a matter of law, including, but not limited to, indemnification claims under applicable law.
4. Executive represents and warrants that Executive has not assigned any such claim or authorized any other person or entity to assert such claim on Executives behalf. Further, Executive agrees that under this Agreement Executive waives any claim for damages incurred at any time in the future because of alleged continuing effects of past wrongful conduct involving any such claims and any right to sue for injunctive relief against the alleged continuing effects of past wrongful conduct involving such claims.
5. In entering into this Agreement, the parties have intended that this Agreement be a full and final settlement of all matters, whether or not presently disputed, that could have arisen between them.
6. Executive understands and expressly agrees that this Agreement extends to all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, past or present and all rights under Section 1542 of the California Civil Code and/or any similar statute or law or any other jurisdiction are hereby expressly waived. Such section reads as follows:
Section 1542. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
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7. It is expressly agreed that the claims released pursuant to this Agreement include all claims against individual employees of Agilent, whether or not such employees were acting within the course and scope of their employment.
8. Executive understands and agrees that, as a condition of this Agreement, Executive shall not be entitled to any employment (including employment as an independent contractor or otherwise) with Agilent, its subsidiaries or related companies, or any successor, and Executive hereby waives any right, or alleged right, of employment or re-employment with Agilent. Executive further agrees not to apply for employment with Agilent in the future and not to institute or join any action, lawsuit or proceeding against Agilent, its subsidiaries, related companies or successors for any failure to employ Executive. In the event Executive should secure such employment, it is agreed that such employment is voidable without cause in the sole discretion of Agilent. After terminating Executives employment, should Executive become employed by another company which Agilent merges with or acquires after the date of this Agreement, Executive may continue such employment only if Agilent makes offers of employment to all employees of the acquired or merged company.
9. Executive agrees that the terms, amount and fact of settlement shall be confidential until Agilent Technologies needs to make any required disclosure of any agreements between Agilent and Executive. Therefore, except as may be necessary to enforce the rights contained herein in an appropriate legal proceeding or as may be necessary to receive professional services from, an attorney, accountant, or other professional adviser in order for such adviser to render professional services, Executive agrees not to disclose any information concerning these arrangements to anyone, including, but not limited to, past, present and future employees of Agilent, until such time of the public filings.
10. At Agilents request, Executive shall cooperate fully in connection with any legal matter, proceeding or action relating to Agilent.
11. The terms of this Agreement are intended by the parties as a final expression of their agreement with respect to such terms as are included in this Agreement and may not be contradicted by evidence of any prior or contemporaneous agreement. The parties further intend that this Agreement constitutes the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial or other proceeding, if any, involving this Agreement. No modification of this Agreement shall be effective unless in writing and signed by both parties hereto.
12. It is further expressly agreed and understood that Executive has not relied upon any advice from Agilent Technologies, Inc. and/or its attorneys whatsoever as to the taxability, whether pursuant to federal, state, or local income tax statutes or regulations or otherwise, of the payments made hereunder and that Executive will be solely liable for all tax obligations, if any, arising from payment of the sums specified herein and shall hold Agilent Technologies, Inc. harmless from any tax obligations arising from said payment.
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13. If there is any dispute arising out of or related to this Agreement, which cannot be settled by good faith negotiation between the parties, such dispute will be submitted to JAMS for non-binding mediation. If complete agreement cannot be reached within 60 days of submission to mediation, any remaining issues will be submitted to JAMS for final and binding arbitration pursuant to JAMS Arbitration Rules and Procedures for Employment Disputes. The reference to JAMS shall refer to any successor to JAMS, if applicable. BY ENTERING INTO THIS AGREEMENT, EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE IS WAIVING EXECUTIVES RIGHT TO JURY TRIAL OF ANY DISPUTE COVERED BY THIS AGREEMENT.
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14. The following notice is provided in accordance with the provisions of Federal Law:
You have up to twenty-one days (21) days from the date this General Release and Agreement is given to you in which to accept its terms, although you may accept it any time within those twenty-one (21) days. You are advised to consult with an attorney regarding this Agreement. You have the right to revoke your acceptance of this Agreement at any time within seven (7) days from the date you sign it, and this Agreement will not become effective and enforceable until this seven (7) day revocation period has expired. To revoke your acceptance, you must send a written notice of revocation to Agilent Technologies, Inc., Attention: Senior Vice President and General Counsel located at 5301 Stevens Creek Boulevard, MS 1A-11, Santa Clara, CA 95051 by 5:00 p.m. on or before the seventh day after you sign this Agreement.
EXECUTIVE FURTHER STATES THAT EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT WITH THE ATTORNEY OF EXECUTIVES CHOICE, THAT EXECUTIVE HAS CAREFULLY READ THIS AGREEMENT, THAT EXECUTIVE HAS HAD AMPLE TIME TO REFLECT UPON AND CONSIDER ITS CONSEQUENCES, THAT EXECUTIVE FULLY UNDERSTANDS ITS FINAL AND BINDING EFFECT, THAT THE ONLY PROMISES MADE TO EXECUTIVE TO SIGN THIS AGREEMENT ARE THOSE STATED ABOVE OR IN THAT CHANGE OF CONTROL SEVERANCE AGREEMENT BETWEEN AGILENT AND EXECUTIVE, AND THAT EXECUTIVE IS SIGNING THIS AGREEMENT VOLUNTARILY.
IN WITNESS WHEREOF, this Agreement has been executed in duplicate originals on the date indicated below, and shall become effective as indicated above.
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EXHIBIT 10.3
[FORM OF SECTION 16 OFFICER AGREEMENT]
AMENDED & RESTATED
CHANGE OF CONTROL SEVERANCE AGREEMENT
This Change of Control Severance Agreement (the Agreement) is entered into this day of , 2008 (the Effective Date) between (Executive) and Agilent Technologies, Inc., a Delaware corporation (the Company). This Agreement supersedes and replaces all prior agreements and understandings on the matters set forth herein, including but not limited to the Change of Control Severance Agreement dated , 200 (as further amended on , 2004 and on , 2005) between Executive and the Company. This Agreement is intended to provide Executive with the compensation and benefits described herein upon the occurrence of specific events following a change of control of the ownership of the Company (defined as Change of Control).
RECITALS
A. As is the case with most, if not all, publicly-traded businesses, it is expected that the Company from time to time may consider or may be presented with the need to consider the possibility of an acquisition by another company or other change in control of the ownership of the Company. The Board of Directors of the Company (the Board) recognizes that such considerations can be a distraction to Executive and can cause the Executive to consider alternative employment opportunities or to be influenced by the impact of a possible change in control of the ownership of the Company on Executives personal circumstances in evaluating such possibilities. The Board has determined that it is in the best interests of the Company and its shareholders to assure that the Company will have the continued dedication and objectivity of Executive, notwithstanding the possibility, threat or occurrence of a Change of Control of the Company.
B. The Board believes that it is in the best interests of the Company and its shareholders to provide Executive with an incentive to continue his or her employment and to motivate Executive to maximize the value of the Company upon a Change of Control for the benefit of its shareholders.
C. The Board believes that it is important to provide Executive with certain benefits upon Executives termination of employment in certain instances upon or following a Change of Control that provide Executive with enhanced financial security and incentive and encouragement to Executive to remain with the Company notwithstanding the possibility of a Change of Control.
D. At the same time, the Board expects the Company to receive certain benefits in exchange for providing Executive with this measure of financial security and incentive under the Agreement. Therefore, the Board believes that the Executive should provide various specific commitments which are intended to assure the Company that Executive will not direct
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Executives skills, experience and knowledge to the detriment of the Company for a period not to exceed the period during which payments are being made to Executive under this Agreement.
E. Certain capitalized terms used in this Agreement are defined in Article VII.
The Company and Executive hereby agree as follows:
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Upon the occurrence of a Termination Event, Executive shall be entitled to receive a payment equal to Eighty-Thousand U.S. Dollars ($80,000) (the Health Expense Benefit). The purpose of the Health Expense Benefit is to assist Executive with healthcare expenses, including additional health plan premium payments that may result from the occurrence of a Termination Event. Amounts to be paid under this section shall be paid in a lump sum no later than thirty (30) days after the date of the Termination Event or the date of an Effective Release.
This Section 3.3 provides only for the Companys payment of the Health Expense Benefit. This Section 3.3 does not affect the rights of Executive or Executives covered dependents under any applicable law with respect to health insurance continuation coverage.
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Executives restricted stock awards that are subject to performance-based vesting shall be covered by the terms of the applicable award agreement.
3.7 Compliance with Section 409A . In the event that (i) one or more payments of compensation or benefits received or to be received by Executive pursuant to this Agreement (Agreement Payment) would constitute deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the Code) and (ii) Executive is deemed at the time of such termination of employment to be a specified employee under Section 409A(a)(2)(B)(i) of the Code, then such Agreement Payment shall not be made or commence until the earlier of (i) the expiration of the six (6)-month period measured from the date of Executives separation from service (as such term is at the time defined in Treasury Regulations under Section 409A of the Code) with the Company or (ii) such earlier time permitted under Section 409A of the Code and the regulations or other authority promulgated thereunder; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Executive under Section 409A of the Code, including (without limitation) the additional twenty percent (20%) tax for which Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. During any period in which an Agreement Payment to Executive is deferred pursuant to the foregoing,
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Executive shall be entitled to interest on the deferred Agreement Payment at a per annum rate equal to the highest rate of interest applicable to six (6)-month non-callable certificates of deposit with daily compounding offered by the following institutions: Citibank N.A., Wells Fargo Bank, N.A. or Bank of America, on the date of such separation from service. Upon the expiration of the applicable deferral period, any Agreement Payment which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to Executive or his beneficiary in one lump sum, including all accrued interest.
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would be inadequate and, in recognition of this fact, Executive agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, shall, with respect to a breach or threatened breach of Section 4.2(a) or Section 4.2(b) only, obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction, or any other equitable remedy which may then be available.
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being subject to the Excise Tax (Reduced Amount), taking into account all applicable federal, state, local and foreign income, employment and other taxes and (2) after reducing the Payment by such Reduced Amount, Executive would receive, on a pre-tax basis, an amount not less than ninety percent (90%) of the value of the unreduced Payment on a pre-tax basis (the Threshold Payment Level). The intent of the parties is that if Executive is entitled to a Gross-Up Payment pursuant to this Section 4.4, the Company shall be solely responsible for, and shall pay, any Excise Tax on the Payment and the Gross-Up Payment and any income, employment and other taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment. The Company shall be responsible for any loss of tax deduction that the Company has to forego caused by the Payment or the Gross-Up Payment. Any Gross-up Payments pursuant to this Section 4.4 shall be paid not later than the end of the taxable year following the taxable year in which the determination under this Section 4.4 was made.
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instead Executive shall be entitled to receive from the Company the Reduced Amount as well as the full Gross-Up Payment, with the value of that portion of the Reduced Amount that would have originally been paid in the form of the equity securities of the Company now payable by delivery of marketable equity securities that are immediately saleable by Executive in the public securities market in which such securities are traded.
(e) The elements of the Executives Payments hereunder that constitute the Reduced Amount shall be chosen as follows, but only if necessary to avoid the application of Section 409A of the Code: any reduction will first be made by reducing any cash payments due hereunder, subject to Section 409A of the Code; second by any cash payments due hereunder not subject to Section 409A of the Code; third by any equity vesting or payments due hereunder subject to Section 409A of the Code; and lastly by any equity vesting or payments due hereunder not subject to Section 409A of the Code.
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Executive as an at-will employee, or (iii) to change the Companys policies regarding termination or alteration of employment.
No benefit hereunder shall be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so shall be void.
For purposes of the Agreement, the following terms shall have the meanings set forth below:
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(within the meaning of Rules 13d-3 and 13d-5 promulgated under the Exchange Act) of more than 75% of the total voting power of the outstanding voting securities of the corporation resulting from such transaction in substantially the same proportion as their ownership of the total voting power of the outstanding voting securities of the Company immediately prior to such merger or consolidation; or
(iii) The acquisition of beneficial ownership (within the meaning of Rules 13d-3 and 13d-5 promulgated under the Exchange Act) of at least 25% of the total voting power of the outstanding voting securities of the Company by a person or group (as such terms are defined or described in Sections 3(a)(9) and 13(d)(3) of the Exchange Act).
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IN WITNESS WHEREOF , the parties have executed this Agreement effective on the day and year written above.
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Exhibit A: Employee General Release
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CONFIDENTIAL
Exhibit A
GENERAL RELEASE AND AGREEMENT
This General Release and Agreement (the Agreement) is made and entered into by (Executive). The Agreement is part of an agreement between Executive and Agilent Technologies, Inc. (Agilent) to terminate Executives employment with Agilent on terms that are satisfactory both to Agilent and to Executive. Therefore, Executive agrees as follows:
1. Executive agrees to attend a Functional Exit Interview on , 20 at which time all company property and identification will be turned in and the appropriate personnel documents will be executed. Thereafter, Executive agrees to do such other acts as may be reasonably requested by Agilent in order to effectuate the terms of this agreement. Executive agrees to remove all personal effects from his current office within seven days of signing this agreement and in any event not later than , 20 .
2. Executive agrees not to make any public statement or statements to the press concerning Agilent, its business objectives, its management practices, or other sensitive information without first receiving Agilents written approval. Executive further agrees to take no action which would cause Agilent or its employees or agents any embarrassment or humiliation or otherwise cause or contribute to Agilents or any such persons being held in disrepute by the general public or Agilents employees, clients, or customers.
3. Executive, on behalf of Executives heirs, estate, executors, administrators, successors and assigns does fully release, discharge, and agree to hold harmless Agilent, its officers, agents, employees, attorneys, subsidiaries, affiliated companies, successors and assigns from all actions, causes of action, claims, judgments, obligations, damages, liabilities, costs, or expense of whatsoever kind and character which he may have, including but not limited to ;
a. any claims relating to employment discrimination on account of race, sex, age, national origin, creed, disability, or other basis, whether or not arising under the Federal Civil Rights Acts, the Age Discrimination in Employment Act, California Fair Employment and Housing Act, the Rehabilitation Act of 1973, the Americans With Disabilities Act, any amendments to the foregoing laws, or any other federal, state, county, municipal, or other law, statute, regulation or order relating to employment discrimination;
b. any claims relating to pay or leave of absence arising under the Fair Labor Standards Act, the Family Medical Leave Act, and any similar laws enacted in California;
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c. any claims for reemployment, salary, wages, bonuses, vacation pay, stock options, acquired rights, appreciation from stock options, stock appreciation rights, benefits or other compensation of any kind;
d. any claims relating to, arising out of, or connected with Executives employment with Agilent, whether or not the same be based upon any alleged violation of public policy; compliance (or lack thereof) with any internal Agilent policy, procedure, practice or guideline; or any oral, written. express, and/or implied employment contract or agreement, or the breach of any terms thereof, including but not limited to, any implied covenant of good faith and fair dealing; or any federal, state, county or municipal law, statute, regulation, or order whether or not relating to labor or employment; and
e. any claims relating to, arising out of, or connected with any other matter or event occurring prior to the execution of this Agreement whether or not brought before any judicial, administrative, or other tribunal.
The foregoing release shall not apply to (i) Executives rights under the Amended and Restated Change of Control Severance Agreement between Executive and the Company; (ii) Executives rights under any employee benefit plan sponsored by the Company; (iii) Executives rights to indemnification under the Companys bylaws or other governing instruments or under any agreement addressing such subject matter between Executive and the Company or under any merger or acquisition agreement addressing such subject matter; (iv) Executives rights of insurance under any liability policy covering the Companys officers or (v) claims which Executive may not release as a matter of law, including, but not limited to, indemnification claims under applicable law.
4. Executive represents and warrants that Executive has not assigned any such claim or authorized any other person or entity to assert such claim on Executives behalf. Further, Executive agrees that under this Agreement Executive waives any claim for damages incurred at any time in the future because of alleged continuing effects of past wrongful conduct involving any such claims and any right to sue for injunctive relief against the alleged continuing effects of past wrongful conduct involving such claims.
5. In entering into this Agreement, the parties have intended that this Agreement be a full and final settlement of all matters, whether or not presently disputed, that could have arisen between them.
6. Executive understands and expressly agrees that this Agreement extends to all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, past or present and all rights under Section 1542 of the California Civil Code and/or any similar statute or law or any other jurisdiction are hereby expressly waived. Such section reads as follows:
Section 1542. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
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7. It is expressly agreed that the claims released pursuant to this Agreement include all claims against individual employees of Agilent, whether or not such employees were acting within the course and scope of their employment.
8. Executive understands and agrees that, as a condition of this Agreement, Executive shall not be entitled to any employment (including employment as an independent contractor or otherwise) with Agilent, its subsidiaries or related companies, or any successor, and Executive hereby waives any right, or alleged right, of employment or re-employment with Agilent. Executive further agrees not to apply for employment with Agilent in the future and not to institute or join any action, lawsuit or proceeding against Agilent, its subsidiaries, related companies or successors for any failure to employ Executive. In the event Executive should secure such employment, it is agreed that such employment is voidable without cause in the sole discretion of Agilent. After terminating Executives employment, should Executive become employed by another company which Agilent merges with or acquires after the date of this Agreement, Executive may continue such employment only if Agilent makes offers of employment to all employees of the acquired or merged company.
9. Executive agrees that the terms, amount and fact of settlement shall be confidential until Agilent Technologies needs to make any required disclosure of any agreements between Agilent and Executive. Therefore, except as may be necessary to enforce the rights contained herein in an appropriate legal proceeding or as may be necessary to receive professional services from, an attorney, accountant, or other professional adviser in order for such adviser to render professional services, Executive agrees not to disclose any information concerning these arrangements to anyone, including, but not limited to, past, present and future employees of Agilent, until such time of the public filings.
10. At Agilents request, Executive shall cooperate fully in connection with any legal matter, proceeding or action relating to Agilent.
11. The terms of this Agreement are intended by the parties as a final expression of their agreement with respect to such terms as are included in this Agreement and may not be contradicted by evidence of any prior or contemporaneous agreement. The parties further intend that this Agreement constitutes the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial or other proceeding, if any, involving this Agreement. No modification of this Agreement shall be effective unless in writing and signed by both parties hereto.
12. It is further expressly agreed and understood that Executive has not relied upon any advice from Agilent Technologies, Inc. and/or its attorneys whatsoever as to the taxability, whether pursuant to federal, state, or local income tax statutes or regulations or otherwise, of the payments made hereunder and that Executive will be solely liable for all tax obligations, if any, arising from payment of the sums specified herein and shall hold Agilent Technologies, Inc. harmless from any tax obligations arising from said payment.
13. If there is any dispute arising out of or related to this Agreement, which cannot be settled by good faith negotiation between the parties, such dispute will be submitted to JAMS for
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non-binding mediation. If complete agreement cannot be reached within 60 days of submission to mediation, any remaining issues will be submitted to JAMS for final and binding arbitration pursuant to JAMS Arbitration Rules and Procedures for Employment Disputes. The reference to JAMS shall refer to any successor to JAMS, if applicable. BY ENTERING INTO THIS AGREEMENT, EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE IS WAIVING EXECUTIVES RIGHT TO JURY TRIAL OF ANY DISPUTE COVERED BY THIS AGREEMENT.
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14. The following notice is provided in accordance with the provisions of Federal Law:
You have up to twenty-one days (21) days from the date this General Release and Agreement is given to you in which to accept its terms, although you may accept it any time within those twenty-one days. You are advised to consult with an attorney regarding this Agreement. You have the right to revoke your acceptance of this Agreement at any time within seven (7) days from the date you sign it, and this Agreement will not become effective and enforceable until this seven (7) day revocation period has expired. To revoke your acceptance, you must send a written notice of revocation to Agilent Technologies, Inc., Attention: Senior Vice President and General Counsel located at 5301 Stevens Creek Boulevard, MS 1A-11, Santa Clara, CA 95051 by 5:00 p.m. on or before the seventh day after you sign this Agreement.
EXECUTIVE FURTHER STATES THAT EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT WITH THE ATTORNEY OF EXECUTIVES CHOICE, THAT EXECUTIVE HAS CAREFULLY READ THIS AGREEMENT, THAT EXECUTIVE HAS HAD AMPLE TIME TO REFLECT UPON AND CONSIDER ITS CONSEQUENCES, THAT EXECUTIVE FULLY UNDERSTANDS ITS FINAL AND BINDING EFFECT, THAT THE ONLY PROMISES MADE TO EXECUTIVE TO SIGN THIS AGREEMENT ARE THOSE STATED ABOVE OR IN THAT CHANGE OF CONTROL SEVERANCE AGREEMENT BETWEEN AGILENT AND EXECUTIVE, AND THAT EXECUTIVE IS SIGNING THIS AGREEMENT VOLUNTARILY.
IN WITNESS WHEREOF, this Agreement has been executed in duplicate originals on the date indicated below, and shall become effective as indicated above.
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EXHIBIT 10.4
[FORM OF SPECIFIED EXECUTIVE OFFICER AGREEMENT]
AMENDED & RESTATED
CHANGE OF CONTROL SEVERANCE AGREEMENT
This Change of Control Severance Agreement (the Agreement ) is entered into this day of , 2008 (the Effective Date) between (Executive) and Agilent Technologies, Inc., a Delaware corporation (the Company ). This Agreement supersedes and replaces all prior agreements and understandings on the matters set forth herein, including but not limited to the Change of Control Severance Agreement dated , 200 (as further amended on , 200 and on , 200 ) between Executive and the Company. This Agreement is intended to provide Executive with the compensation and benefits described herein upon the occurrence of specific events following a change of control of the ownership of the Company (defined as Change of Control).
RECITALS
A. As is the case with most, if not all, publicly-traded businesses, it is expected that the Company from time to time may consider or may be presented with the need to consider the possibility of an acquisition by another company or other change in control of the ownership of the Company. The Board of Directors of the Company (the Board) recognizes that such considerations can be a distraction to Executive and can cause the Executive to consider alternative employment opportunities or to be influenced by the impact of a possible change in control of the ownership of the Company on Executives personal circumstances in evaluating such possibilities. The Board has determined that it is in the best interests of the Company and its shareholders to assure that the Company will have the continued dedication and objectivity of Executive, notwithstanding the possibility, threat or occurrence of a Change of Control of the Company.
B. The Board believes that it is in the best interests of the Company and its shareholders to provide Executive with an incentive to continue his or her employment and to motivate Executive to maximize the value of the Company upon a Change of Control for the benefit of its shareholders.
C. The Board believes that it is important to provide Executive with certain benefits upon Executives termination of employment in certain instances upon or following a Change of Control that provide Executive with enhanced financial security and incentive and encouragement to Executive to remain with the Company notwithstanding the possibility of a Change of Control.
D. At the same time, the Board expects the Company to receive certain benefits in exchange for providing Executive with this measure of financial security and incentive under the Agreement. Therefore, the Board believes that the Executive should provide various specific commitments which are intended to assure the Company that Executive will not direct
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Executives skills, experience and knowledge to the detriment of the Company for a period not to exceed the period during which payments are being made to Executive under this Agreement.
E. Certain capitalized terms used in this Agreement are defined in Article VII.
The Company and Executive hereby agree as follows:
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Upon the occurrence of a Termination Event, Executive shall be entitled to receive a equal to Forty-Thousand U.S. Dollars ($40,000) (the Health Expense Benefit). The purpose of the Health Expense Benefit is to assist Executive with healthcare expenses, including additional health plan premium payments that may result from the occurrence of a Termination Event . Amounts to be paid under this section shall be paid in a lump sum no later than the later of thirty (30) days after the date of the Termination Event or the date of an Effective Release.
This Section 3.3 provides only for the Companys payment of the Health Expense Benefit. This Section 3.3 does not affect the rights of Executive or Executives covered dependents under any applicable law with respect to health insurance continuation coverage.
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3.7 Compliance with Section 409A . In the event that (i) one or more payments of compensation or benefits received or to be received by Executive pursuant to this Agreement (Agreement Payment) would constitute deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the Code) and (ii) Executive is deemed at the time of such termination of employment to be a specified employee under Section 409A(a)(2)(B)(i) of the Code, then such Payment shall not be made or commence until the earlier of (i) the expiration of the six (6)-month period measured from the date of Executives separation from service (as such term is at the time defined in Treasury Regulations under Section 409A of the Code) with the Company or (ii) such earlier time permitted under Section 409A of the Code and the regulations or other authority promulgated thereunder; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Executive under Section 409A of the Code, including (without limitation) the additional twenty percent (20%) tax for which Executive would otherwise be liable under
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Section 409A(a)(1)(B) of the Code in the absence of such deferral. During any period in which an Agreement Payment to Executive is deferred pursuant to the foregoing, Executive shall be entitled to interest on the deferred Agreement Payment at a per annum rate equal to the highest rate of interest applicable to six (6)-month non-callable certificates of deposit with daily compounding offered by the following institutions: Citibank N.A., Wells Fargo Bank, N.A. or Bank of America, on the date of such separation from service. Upon the expiration of the applicable deferral period, any Agreement Payment which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to Executive or his beneficiary in one lump sum, including all accrued interest.
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(e) The elements of the Executives Payments hereunder that constitute the Reduced Amount shall be chosen as follows, but only if necessary to avoid the application of Section 409A of the Code: any reduction will first be made by reducing any cash payments due hereunder subject to Section 409A of the Code; second by any cash payments due hereunder not subject to Section 409A of the Code; third by any equity vesting or payments due hereunder subject to Section 409A of the Code; and lastly by any equity vesting or payments due hereunder not subject to Section 409A of the Code.
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No benefit hereunder shall be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so shall be void.
For purposes of the Agreement, the following terms shall have the meanings set forth below:
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(iii) The acquisition of beneficial ownership (within the meaning of Rules 13d-3 and 13d-5 promulgated under the Exchange Act) of at least 25% of the total voting power of the outstanding voting securities of the Company by a person or group (as such terms are defined or described in Sections 3(a)(9) and 13(d)(3) of the Exchange Act).
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IN WITNESS WHEREOF , the parties have executed this Agreement effective on the day and year written above.
Agilent Technologies, Inc.,
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Exhibit A: Employee General Release
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CONFIDENTIAL
Exhibit A
GENERAL RELEASE AND AGREEMENT
This General Release and Agreement (the Agreement) is made and entered into by
(Executive). The Agreement is part of an agreement between Executive and Agilent Technologies, Inc. (Agilent) to terminate Executives employment with Agilent on terms that are satisfactory both to Agilent and to Executive. Therefore, Executive agrees as follows:
1. Executive agrees to attend a Functional Exit Interview on , 20 at which time all company property and identification will be turned in and the appropriate personnel documents will be executed. Thereafter, Executive agrees to do such other acts as may be reasonably requested by Agilent in order to effectuate the terms of this agreement. Executive agrees to remove all personal effects from his current office within seven days of signing this agreement and in any event not later than , 20 .
2. Executive agrees not to make any public statement or statements to the press concerning Agilent, its business objectives, its management practices, or other sensitive information without first receiving Agilents written approval. Executive further agrees to take no action which would cause Agilent or its employees or agents any embarrassment or humiliation or otherwise cause or contribute to Agilents or any such persons being held in disrepute by the general public or Agilents employees, clients, or customers.
3. Executive, on behalf of Executives heirs, estate, executors, administrators, successors and assigns does fully release, discharge, and agree to hold harmless Agilent, its officers, agents, employees, attorneys, subsidiaries, affiliated companies, successors and assigns from all actions, causes of action, claims, judgments, obligations, damages, liabilities, costs, or expense of whatsoever kind and character which he may have, including but not limited to ;
a. any claims relating to employment discrimination on account of race, sex, age, national origin, creed, disability, or other basis, whether or not arising under the Federal Civil Rights Acts, the Age Discrimination in Employment Act, California Fair Employment and Housing Act, the Rehabilitation Act of 1973, the Americans With Disabilities Act, any amendments to the foregoing laws, or any other federal, state, county, municipal, or other law, statute, regulation or order relating to employment discrimination;
b. any claims relating to pay or leave of absence arising under the Fair Labor Standards Act, the Family Medical Leave Act, and any similar laws enacted in California;
c. any claims for reemployment, salary, wages, bonuses, vacation pay, stock options, acquired rights, appreciation from stock options, stock appreciation rights, benefits or other compensation of any kind;
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d. any claims relating to, arising out of, or connected with Executives employment with Agilent, whether or not the same be based upon any alleged violation of public policy; compliance (or lack thereof) with any internal Agilent policy, procedure, practice or guideline; or any oral, written. express, and/or implied employment contract or agreement, or the breach of any terms thereof, including but not limited to, any implied covenant of good faith and fair dealing; or any federal, state, county or municipal law, statute, regulation, or order whether or not relating to labor or employment; and
e. any claims relating to, arising out of, or connected with any other matter or event occurring prior to the execution of this Agreement whether or not brought before any judicial, administrative, or other tribunal.
The foregoing release shall not apply to (i) Executives rights under the Amended and Restated Change of Control Severance Agreement between Executive and the Company; (ii) Executives rights under any employee benefit plan sponsored by the Company; (iii) Executives rights to indemnification under the Companys bylaws or other governing instruments or under any agreement addressing such subject matter between Executive and the Company or under any merger or acquisition agreement addressing such subject matter; (iv) Executives rights of insurance under any liability policy covering the Companys officers or (v) claims which Executive may not release as a matter of law, including, but not limited to, indemnification claims under applicable law.
4. Executive represents and warrants that Executive has not assigned any such claim or authorized any other person or entity to assert such claim on Executives behalf. Further, Executive agrees that under this Agreement Executive waives any claim for damages incurred at any time in the future because of alleged continuing effects of past wrongful conduct involving any such claims and any right to sue for injunctive relief against the alleged continuing effects of past wrongful conduct involving such claims.
5. In entering into this Agreement, the parties have intended that this Agreement be a full and final settlement of all matters, whether or not presently disputed, that could have arisen between them.
6. Executive understands and expressly agrees that this Agreement extends to all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, past or present and all rights under Section 1542 of the California Civil Code and/or any similar statute or law or any other jurisdiction are hereby expressly waived. Such section reads as follows:
Section 1542. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
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7. It is expressly agreed that the claims released pursuant to this Agreement include all claims against individual employees of Agilent, whether or not such employees were acting within the course and scope of their employment.
8. Executive understands and agrees that, as a condition of this Agreement, Executive shall not be entitled to any employment (including employment as an independent contractor or otherwise) with Agilent, its subsidiaries or related companies, or any successor, and Executive hereby waives any right, or alleged right, of employment or re-employment with Agilent. Executive further agrees not to apply for employment with Agilent in the future and not to institute or join any action, lawsuit or proceeding against Agilent, its subsidiaries, related companies or successors for any failure to employ Executive. In the event Executive should secure such employment, it is agreed that such employment is voidable without cause in the sole discretion of Agilent. After terminating Executives employment, should Executive become employed by another company which Agilent merges with or acquires after the date of this Agreement, Executive may continue such employment only if Agilent makes offers of employment to all employees of the acquired or merged company.
9. Executive agrees that the terms, amount and fact of settlement shall be confidential until Agilent Technologies needs to make any required disclosure of any agreements between Agilent and Executive. Therefore, except as may be necessary to enforce the rights contained herein in an appropriate legal proceeding or as may be necessary to receive professional services from, an attorney, accountant, or other professional adviser in order for such adviser to render professional services, Executive agrees not to disclose any information concerning these arrangements to anyone, including, but not limited to, past, present and future employees of Agilent, until such time of the public filings.
10. At Agilents request, Executive shall cooperate fully in connection with any legal matter, proceeding or action relating to Agilent.
11. The terms of this Agreement are intended by the parties as a final expression of their agreement with respect to such terms as are included in this Agreement and may not be contradicted by evidence of any prior or contemporaneous agreement. The parties further intend that this Agreement constitutes the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial or other proceeding, if any, involving this Agreement. No modification of this Agreement shall be effective unless in writing and signed by both parties hereto.
12. It is further expressly agreed and understood that Executive has not relied upon any advice from Agilent Technologies, Inc. and/or its attorneys whatsoever as to the taxability, whether pursuant to federal, state, or local income tax statutes or regulations or otherwise, of the payments made hereunder and that Executive will be solely liable for all tax obligations, if any, arising from payment of the sums specified herein and shall hold Agilent Technologies, Inc. harmless from any tax obligations arising from said payment.
13. If there is any dispute arising out of or related to this Agreement, which cannot be settled by good faith negotiation between the parties, such dispute will be submitted to JAMS for non-binding mediation. If complete agreement cannot be reached within 60 days of
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submission to mediation, any remaining issues will be submitted to JAMS for final and binding arbitration pursuant to JAMS Arbitration Rules and Procedures for Employment Disputes. The reference to JAMS shall refer to any successor to JAMS, if applicable. BY ENTERING INTO THIS AGREEMENT, EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE IS WAIVING EXECUTIVES RIGHT TO JURY TRIAL OF ANY DISPUTE COVERED BY THIS AGREEMENT.
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14. The following notice is provided in accordance with the provisions of Federal Law:
You have up to twenty-one days (21) days from the date this General Release and Agreement is given to you in which to accept its terms, although you may accept it any time within those twenty-one (21) days. You are advised to consult with an attorney regarding this Agreement. You have the right to revoke your acceptance of this Agreement at any time within seven (7) days from the date you sign it, and this Agreement will not become effective and enforceable until this seven (7) day revocation period has expired. To revoke your acceptance, you must send a written notice of revocation to Agilent Technologies, Inc., Attention: Senior Vice President and General Counsel located at 5301 Stevens Creek Boulevard, MS 1A-11, Santa Clara, CA by 5:00 p.m. on or before the seventh day after you sign this Agreement.
EXECUTIVE FURTHER STATES THAT EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT WITH THE ATTORNEY OF EXECUTIVES CHOICE, THAT EXECUTIVE HAS CAREFULLY READ THIS AGREEMENT, THAT EXECUTIVE HAS HAD AMPLE TIME TO REFLECT UPON AND CONSIDER ITS CONSEQUENCES, THAT EXECUTIVE FULLY UNDERSTANDS ITS FINAL AND BINDING EFFECT, THAT THE ONLY PROMISES MADE TO EXECUTIVE TO SIGN THIS AGREEMENT ARE THOSE STATED ABOVE OR IN THAT CHANGE OF CONTROL SEVERANCE AGREEMENT BETWEEN AGILENT AND EXECUTIVE, AND THAT EXECUTIVE IS SIGNING THIS AGREEMENT VOLUNTARILY.
IN WITNESS WHEREOF, this Agreement has been executed in duplicate originals on the dates indicated below, and shall become effective as indicated above.
EXECUTIVE
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