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
Company’s 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
Company’s 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 Company’s 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 Company’s 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 Indemnitee’s 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 pr
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