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Exhibit 10.36
AGILENT TECHNOLOGIES, INC.
2005 DEFERRED COMPENSATION PLAN
(Amended and Restated Effective November 14, 2006)
The Agilent
Technologies, Inc. 2005 Deferred Compensation Plan was adopted
and established effective November 1, 2004. The Plan continues
the program of deferred compensation embodied in the document for
the Agilent Technologies, Inc. Deferred Compensation Plan (the
"Prior Plan Document") in a manner designed to comply with the
requirements of the American Jobs Creation Act of 2004. The rules
of this Plan document, rather than those of the Prior Plan
Document, will govern new deferrals. The Plan provides deferred
compensation for a select group of management or highly compensated
employees as established in Title I of ERISA.
The Plan is
intended to be an unfunded and unsecured deferred compensation
arrangement between the Participant and Agilent, in which the
Participant agrees to give up a portion of the Participant's
current compensation in exchange for Agilent's unfunded and
unsecured promise to make a payment at a future date, as specified
in Section 6. Agilent retains the right, as provided in
Section 13, to amend or terminate the Plan at any time.
Certain capitalized words used in the text of the Plan are defined
in Section 21 in alphabetical order.
2.1 All
Eligible Employees on the U.S. payroll of Agilent are eligible to
defer Base Pay, Bonus or awards under the Agilent
Technologies, Inc. Long-Term Performance Plan ("LTPP") under
the Plan if they have Base Pay, at the time of election as
specified in Section 3.1(a), equal to or in excess of the Base
Pay Threshold. In addition, the Committee may provide that company
contributions may be made to the Plan for the benefit of a
Participant under the terms and conditions as may be specified by
Agilent, in any manner Agilent deems appropriate; provided,
however, that any such contribution shall comply with
Section 409A of the Code, and any contribution made with
respect to a Covered Officer must be consistent with the
requirements for deductibility of compensation under
Section 162(m) of the Code.
Eligible
Employees shall make elections to participate in the Plan, as
follows:
3.1
Base Pay Deferrals
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(a)
Timing of Base Pay Deferral.
With respect to a deferral of Base Pay, an
election to participate must be made on or before December 31,
or such earlier date established by the Committee, of the calendar
year preceding the calendar year with respect to which an election
to defer Base Pay is made, in accordance with procedures
established by the Committee. Notwithstanding the foregoing, a
newly hired Eligible Employee may make an initial deferral election
by the date the Committee specifies after the individual receives
enrollment materials. Currently, the Committee has specified that
for a newly hired Eligible Employee an initial deferral election
must be made within 30 days of becoming an Eligible
Employee.
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(b)
Amount of Base Pay Deferral
. The amount that will be deferred from Base
Pay for an Eligible Employee is determined as follows:
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(i) The
Eligible Employee will elect an annual whole dollar amount to be
deferred from Base Pay. The maximum annual whole dollar amount of
Base Pay that may be deferred each calendar year is equal to the
amount that Base Pay exceeds the Base Pay Threshold.
(ii) The
annual whole dollar amount of Base Pay will be divided equally into
the number of pay periods falling within the calendar year to which
the election pertains (the "Pay Period Deferral Amount").
(iii) The
Pay Period Deferral Amount or parts thereof will be deferred to the
extent that a Participant has cash compensation sufficient to cover
the Pay Period Deferral Amount or parts thereof.
(c)
Suspension and Reinstatement of
Deferral . In situations where a
Participant's participation in the Plan is suspended as described
in Section 3.5, all deferrals cease. If the Participant is
reinstated into the Plan during the same calendar year as the
suspension, the per pay period Deferred Amount will be reinstated
and deferred for the pay periods remaining in the calendar
year.
3.2
Bonus Deferrals
.
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(a)
Timing of Bonus Deferral
. Participants must make an election to
defer a Bonus according to rules and procedures established by the
Committee and designed to comply with the advance election
provisions of Section 409A of the Code. Notwithstanding the
foregoing, an election to defer a Bonus payable for a period after
the fiscal year begins may be amended or revoked at any time prior
to the date on which it becomes irrevocable, in accordance with any
rules and procedures established by the Committee. Notwithstanding
the foregoing, a newly hired Eligible Employee may make an initial
bonus deferral election by the date the Committee specifies
(currently 30 days after becoming an Eligible Employee), which
date shall comply with applicable law.
(b)
Amount of Bonus Deferral
. An Eligible Employee may defer any
portion, up to 95%, of any Bonus to which he or she may become
entitled, so long as the deferral amount is expressed in terms of a
whole percentage point. Once an election is made by an Eligible
Employee to defer any portion or all of a Bonus, the appropriate
dollar amount will be withheld from the Bonus when this amount
would have otherwise been paid.
3.3
LTPP Deferrals
.
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(a)
Timing of LTPP Award Deferral
. Participants must make an election to
defer an LTPP Award on or before December 31, or such earlier
date established by the Committee, of the calendar year immediately
preceding the calendar year in which a performance period under the
LTPP ends, according to rules and procedures established by the
Committee and designed to comply with the advance election
provisions of Section 409A of the Code. Notwithstanding the
foregoing, a newly hired Eligible Employee may make an initial LTPP
Award deferral election by the date the Committee specifies
(currently 30 days after becoming an Eligible Employee), which
date shall comply with applicable law.
(b)
Amount of Deferral of LTPP Award
. An Eligible Employee may defer any
portion, up to 95%, of any LTPP Award to which he or she may become
entitled, so long as the deferral amount is expressed in terms of a
whole percentage point. Once an election is made by an Eligible
Employee to defer any portion or all of a Bonus, the appropriate
dollar amount will be withheld from the Bonus when this amount
would have otherwise been paid.
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3.4
Effect of Taxes on Maximum Deferrals
. Notwithstanding any provision herein to
the contrary, Agilent may withhold Taxes from any cash payment made
under the Plan or Bonus plan or arrangement, owing as a result of
any deferral or payment hereunder, as Agilent deems appropriate in
its sole discretion. If, with respect to the pay period within
which a deferral, payment or Bonus is made under the Plan or Bonus
plan or arrangement, or the Participant receives insufficient
actual cash compensation to cover such Taxes, then Agilent may
withhold any remaining Taxes owing from the Participant's
subsequent cash compensation received, until such Tax obligation is
satisfied, or otherwise make appropriate arrangements with the
Participant for satisfaction of such obligation.
3.5
Suspension
. A Participant's participation in the Plan
shall be suspended for any period during which he or she:
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(i) Is
on a formal leave of absence without pay authorized by Agilent;
(ii) Is
on military leave, in accordance with Agilent's policy with respect
to such leaves; or
(iii) Ceases
to qualify as an Eligible Employee but remains an Employee.
However, during any such suspension period, the Participant's
Accounts shall continue to share in the Plan, and such Participant
may continue to make investment directions pursuant to
Section 5 hereof.
3.6
End of Suspension
. When a Participant returns from a
suspension period during a calendar year in which an election for
that Participant exists, the Pay Period Deferral Amount for any
remaining pay periods will be deferred. Any amounts that would have
been deferred during the suspension period if such suspension had
not occurred will no longer be considered part of the election for
Deferral Amounts.
3.7
Committee Discretion
. Notwithstanding anything in this
Section 3 to the contrary, the Committee shall have the
discretion to modify the availability and timing of a valid
deferral election under this Section 3, in any manner it deems
appropriate; provided, however, that any alteration shall comply
with Section 409A of the Code, and any alteration with respect
to a Covered Officer must be consistent with the requirements for
deductibility of compensation under Section 162(m) of the
Code.
3.8
Company Contributions
. Notwithstanding anything provided in this
Section 3 or otherwise in the Plan to the contrary, the
Committee shall have the discretion to provide that company
contributions may be made to the Plan for the benefit of a
Participant under the terms and conditions as may be specified by
Agilent, in any manner Agilent deems appropriate; provided,
however, that any such contribution shall comply with
Section 409A of the Code.
Amounts deferred
pursuant to Section 3 shall be credited to a Deferral Account
in the name of the Participant. Deferred Amounts arising from
deferrals of Base Pay shall be credited to a Deferral Account at
least quarterly. Deferrals resulting from amounts credited to a
Participant's Deferral Account from the deferral of Bonuses shall
be credited to a Deferral Account as soon as practicable after such
Bonus would otherwise have been paid. Deferrals resulting from
amounts credited to a Participant's Deferral Account from the
deferral of LTPP Awards shall be credited to a Deferral Account as
soon as practicable after such LTPP Award would otherwise have been
paid. The Participant's rights in the Deferral Account shall be no
greater than the rights of any other unsecured general creditor of
Agilent. Deferred Amounts and Earnings thereon invested hereunder
shall for all purposes be part of the general funds of Agilent. Any
payout to a Participant of amounts credited to a Participant's
Deferral Account is not due, nor are such amounts ascertainable,
until the Payout Commencement Date.
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5.1
Crediting in General
. Amounts in a Participant's Deferral
Account will be credited at least quarterly with Earnings until
such amounts are paid out to the Participant under this Plan as set
forth in Section 6. All Earnings attributable to the Deferral
Account shall be added to the liability of and retained therein by
Agilent. Any such addition to the liability shall be appropriately
reflected on the books and records of Agilent and identified as an
addition to the total sum owing the Participant. The Deferral
Account of a Rollover Participant shall be credited with Earnings
at the same time and accounted for in the same manner as the
Deferral Account of a Participant (regardless of the Rollover
Participant's eligibility to participate in the Plan), pro-rated to
reflect the date on which the deferral account from a Rollover Plan
is transferred into the Plan.
5.2
Hypothetical Investment Options
. Except as otherwise provided in this
Section 5.2, and subject to provisions of Section 4, the
Committee may, in its discretion, offer Participants a choice among
various Hypothetical Investment Options on which their Deferral
Accounts may be credited. Such a choice is nominal in nature, and
grants Participants no real or beneficial interest in any specific
fund or property. Provision of a choice among Hypothetical
Investment Options grants the Participant no ability to affect the
actual aggregate investments Agilent may or may not make to cover
its obligations under the Plan. Any adjustments Agilent may make in
its actual investments for the Plan may only be instigated by
Agilent, and may or may not bear a resemblance to the Participants'
hypothetical investment choices on an account-by-account basis. The
timing, allowance and frequency of hypothetical investment choices,
and a Participant's ability to change how his or her Deferral
Account is credited, is within the sole discretion of the
Committee.
5.3
Investment Directions
. A Participant may direct the deemed
investment of the Participant's Deferred Amounts among the
Hypothetical Investment Options, in the manner prescribed by
Agilent at the time of enrollment or re-enrollment. Investment
elections shall be in such minimum percentage amounts with respect
to each Fund as permitted by Agilent. Notwithstanding any other
provision of the Plan to the contrary, all deferrals of non-cash
LTPP Awards shall be deemed to be invested wholly in Shares, and
such Shares shall be credited with dividend equivalents until such
Shares are paid out in accordance with Section 6. Dividend
equivalents shall be automatically deemed reinvested in additional
Shares under the Plan.
5.4
Reinvestment Directions
. On a daily basis, by instructing Agilent
in the manner prescribed, a Participant may direct the reinvestment
of the Participant's Deferral Accounts among the various
Hypothetical Investment Options. A Participant shall specify the
reinvestment amounts of the Participant's Deferred Account to be
invested in such Hypothetical Investment Options. Reinvestment
directions shall be in such minimum dollar or percentage amounts as
permitted by Agilent. Notwithstanding any other provision of the
Plan to the contrary, Participants may not direct the reinvestment
of their deferral of non-cash LTPP Awards.
5.5
No Investment Directions
. In the event that the Participant fails to
direct his or her investment, a Participant's Deferral Account
shall be credited with the deemed return on investment in Vanguard
Institutional Index 500 Fund. Notwithstanding the foregoing, all
deferrals of non-cash LTPP Awards shall be deemed to be invested
wholly in Shares, and such deferrals shall be credited with any
fluctuations in the value of the Shares in accordance with
Section 5.1.
6.1
Termination
. If a Participant's Deferral Account
balance is equal to or greater than $25,000 on the Termination
Date, the form and commencement of benefit may be made in
accordance with the Participant's election at the time of deferral
and this Section 6.1.
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(a)
Form of Payout
. A Participant making a valid election
under this Section 6.1, and whose Termination Date occurs during
the first six (6) months of the calendar year, may elect to
receive either (a) a single lump sum payout in the first pay
period in January of the year following the Termination Year, or
(b) a payout in annual installments over a five (5) to
fifteen (15) year period beginning with the first pay period
in January following the Termination Year. A Participant making a
valid election under this Section 6.1, and whose Termination Date
occurs during the second six (6) months of the calendar year,
may elect to receive either (a) a single lump sum payout in
the first pay period in January of the second year following the
Termination Year, or (b) a payout in annual installments over
a five (5) to fifteen (15) year period beginning with the
first pay period in January of the second year following the
Termination Year.
(b)
Commencement of Payout
. A Participant making a valid election
under this Section 6.1 may elect to further defer the Payout
Commencement Date, under either the single lump sum or the annual
installment election addressed in Section 6.1(a), by an
additional one (1), two (2) or three (3) years.
(c)
Earnings on Deferral Accounts
. Whatever the form of
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