Exhibit 10.34
AGILENT TECHNOLOGIES, INC.
PERFORMANCE-BASED COMPENSATION
PLAN FOR COVERED
EMPLOYEES
Amended and Restated Effective
December 18, 2008
1.
Purpose.
The purpose of the Agilent
Technologies, Inc. Performance-Based Compensation Plan for
Covered Employees is to provide certain employees of Agilent
Technologies, Inc. and its subsidiaries with incentive
compensation based upon the level of achievement of financial,
business and other performance criteria. Effective
December 18, 2008 the Plan was amended pursuant to
Section 10(e) by the Assistant Secretary of the Company
to make a minor administrative change made desirable by
Section 409A of the Code.
2.
Definitions.
As used in the Plan, the following
terms shall have the meanings set forth below:
(a)
“Affiliate” shall mean (i) any entity that, directly or
indirectly, is controlled by the Company and (ii) any entity
in which the Company has a significant equity interest, in either
case as determined by the Committee.
(b)
“AFM”
shall mean the Company’s
Accounting and Financial Manual, as posted from time to time on the
Company’s internal web site.
(c)
“Base Pay”
shall mean the annual base rate of
cash compensation, excluding bonuses, commissions, overtime pay,
Variable Payments, Target Variable Payments, shift differential,
payments under the Agilent Technologies, Inc. Disability Plan
and the Agilent Technologies, Inc. Supplemental Income
Protection Plan, or any other additional compensation.
(d)
“Board”
shall mean the Board of Directors of
the Company.
(e)
“Code”
shall mean the Internal Revenue Code
of 1986 and the regulations promulgated thereunder, all as amended
from time to time and any successors thereto.
(f)
“Committee” shall mean the Committee designated pursuant to
Section 4 of the Plan.
(g)
“Company”
shall mean Agilent
Technologies, Inc., a Delaware corporation.
(h)
“Covered
Officer” shall mean
at any date (i) any individual who with respect to the
previous taxable year of the Company, was a “covered
employee” of the Company within the meaning of
Section 162(m);
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(i)
provided, however that the term
“Covered Officer” shall not include any such individual
who is designated by the Committee, in its sole discretion, at the
time of any Variable Payment or at any subsequent time, as
reasonably expected not to be such a “covered employee”
with respect to the then current taxable year of the Company, and
(ii) any individual who is designated by the Committee, in its
sole discretion, at the time of any Variable Payment or at any
subsequent time, as reasonably expected to be such a “covered
employee” with respect to the then current taxable year of
the Company or with respect to the taxable year of the Company in
which any applicable Variable Payment will be paid.
(j)
“Fiscal
Year” shall mean
the twelve-month period from November 1 through
October 31.
(k)
“Net Order
Dollars” shall be
as defined in the Company’s Corporate Marketing Policy, as
posted on the Company’s internal web site at the start of the
Performance Period.
(l)
“Net Profit
Dollars” shall be
as defined in the AFM at the start of the Performance
Period.
(m)
“Net Profit
Growth” shall be
defined with respect to any Performance Period as determined by the
Committee, in its sole discretion.
(n)
“Net Revenue
Dollars” shall be
as defined in the AFM at the start of the Performance
Period.
(o)
“Participant”
shall mean each salaried employee of
the Company or its Affiliates in active service whose position is
designated by the Committee as eligible for participation in the
Plan and who is selected by the Committee for participation in the
Plan prior to the Predetermination Date.
(p)
“Performance
Measure” shall mean
any measurable criteria tied to the Company’s success that
the Committee may determine, including Net Order Dollars, Net
Profit Dollars, Net Profit Growth, Net Revenue Dollars, Revenue
Growth, individual performance, earnings per share, return on
assets, return on equity, return on invested capital, other Company
and business unit financial objectives, customer satisfaction
indicators and operational efficiency measures.
(q)
“Performance
Period” shall mean
a six-month period of time based upon the halves of the
Company’s Fiscal Year, or such other time period as shall be
determined by the Committee.
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(r)
“Plan”
shall mean the Agilent
Technologies, Inc. Performance-Based Compensation Plan for
Covered Employees, as amended from time to time.
(s)
“Predetermination
Date” shall mean
(i) the earlier of, a date 90 days after the commencement of
the Performance Period, or a date not later than the expiration of
25% of the Performance Period, provided that the satisfaction of
selected Performance Measures is substantially uncertain at such
time, or (ii) such other date on which a performance goal is
considered to be pre-established pursuant to
Section 162(m).
(t)
“Revenue
Growth” shall be
defined with respect to any Performance Period as determined by the
Committee, in its sole discretion.
(u)
“Section 162(m)”
shall mean
Section 162(m) of the Code.
(v)
“Target Variable
Payment” shall mean
a Variable Payment amount that may be paid if 100% of all
applicable Performance Measures are achieved in the Performance
Period. The Target Variable Payment shall be equal to a fixed
percentage of the Participant’s Base Pay for such Performance
Period. Except as otherwise provided in Section 6, the
Committee shall determine such percentage prior to the
Predetermination Date.
(w)
“Threshold Variable Payment
Percentage” shall
mean a Variable Payment amount that may be paid if the minimum
level (or percentage) of applicable Performance Measures is
achieved for a Performance Period.
(x)
“Variable
Payment” shall mean
a cash payment, which may be an addition to Base Pay, made pursuant
to the Plan with respect to a particular Performance Period.
The amount of a Variable Payment may be less than, equal to or
greater than the Target Variable Payment; provided ,
however , that a Variable Payment shall not be greater than
an amount equal to two hundred percent (200%) of the Target
Variable Payment.
3.
Eligibility.
Persons employed by the Company or
any of its Affiliates during a Performance Period and in active
service are eligible to be Participants under the Plan for such
Performance Period, whether or not so employed or living at the
date a Variable Payment is paid, and may be considered by the
Committee for a Variable Payment. A Participant is not
rendered ineligible to be a Participant by reason of being a member
of the Board. Notwithstanding anything herein to the
contrary, the Committee shall have sole discretion to designate or
approve the Participants for any given Performance
Period.
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4.
Administration.
(a)
Unless otherwise designated by the
Board, the Compensation Committee of the Board shall be the
Committee under the Plan. A director may serve as a member or
an alternate member of the Committee only during periods in which
the director is an “outside director” as described in
Section 162(m). Subsequent determination that a member
or alternate member of the Committee was not an “outside
director” shall not invalidate the actions taken by the
Committee during such period. The Committee shall have full
power and authority to construe, interpret and administer the
Plan. It may issue rules and regulations for
administration of the Plan and shall meet at such times and places
as it may determine. A majority of the members of the
Committee shall constitute a quorum and all decisions of the
Committee shall be final, conclusive and binding upon all parties,
including the Company, its stockholders, employees and
Participants.
(b)
The expenses of the administration
of the Plan shall be borne by the Company.
5.
Term.
Subject to Section 10(l)
, the amended and restated Plan shall be effective as of
December
