EXHIBIT 10.8
FORM OF INDEMNITY AGREEMENT FOR DIRECTORS AND OFFICERS
INDEMNITY AGREEMENT
-------------------
This Agreement made and entered into this ___ day of _______, 1999, by and
between Varian, Inc., a Delaware corporation (the "Company"), and ______________
("Indemnitee"):
WHEREAS, there is a general awareness that competent and experienced
persons are becoming more reluctant to serve as directors or officers of a
publicly-held corporation unless they are provided with adequate protection
against claims and actions against them for their activities on behalf of the
corporation, generally through insurance and indemnification; and
WHEREAS, the uncertainties in the interpretations of the statutes and
regulations, laws and public policies, relating to indemnification of corporate
directors and officers are such as to make adequate, reliable assessment of the
risks to which directors and officers of publicly-held corporations may be
exposed difficult, particularly in light of the proliferation of lawsuits
against directors and officers; and
WHEREAS, the Board of Directors of the Company, based upon its business
experience, has concluded that the continuation of present trends in litigation
against corporate directors and officers will inevitably make it more difficult
for the Company to retain directors and officers of the highest competence
committed to the active and effective direction and supervision of the business
and affairs of the Company and its subsidiaries and affiliates and the operation
of their facilities, and the Board deems such consequences to be so detrimental
to the best interests of the Company's stockholders that it has concluded that
the Company should act to assure its directors and officers of maximum
protection against inordinate risks attendant on their positions in order to
ensure that the most capable persons otherwise available will be attracted to
such positions and, therefore, said directors have further concluded that it is
not only reasonable and prudent but necessary for the Company to contractually
obligate itself to indemnify to the fullest extent permitted by applicable law
its directors and officers and the directors and officers of its affiliates and
to assume to the maximum extent permitted by law liability for expenses and
liabilities which might be incurred by its directors and officers in connection
with claims lodged against them for their decisions and actions as directors or
officers; and
WHEREAS, Section 145 of the General Corporation Law of the State of
Delaware, under which law the Company is organized, empowers corporations to
indemnify persons serving as a director, officer, employee or agent of the
corporation or a person who serves at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, employee benefit plan, trust, or other enterprise, and further
specifies that the indemnification provided by said section "shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise", and further empowers a corporation to "purchase and
maintain insurance" (on behalf of such persons) "against any liability asserted
against him or incurred by him in any such capacity, or arising out of
Indemnitee's status as such, whether or not the corporation would have the power
to indemnify him against such liability
under the provisions of" (said laws); and
WHEREAS, the Company has investigated the type of insurance available, to
insure the directors and officers of the Company and of its affiliates against
expenses (including attorneys' fees), costs, judgments, fines and amounts paid
in settlement actually and reasonably incurred by them in connection with any
action, suit or proceeding to which they are or are threatened to be made a
party by reason of their status and/or decisions or actions in such positions,
has studied the nature and extent of the coverage provided by such insurance and
the cost thereof to the Company, and has purchased such insurance to the extent
reasonably available; however, upon receiving such information, and
notwithstanding the purchase of such insurance when reasonably available, which
insurance is subject to certain significant exclusions and may cease to be
available (even with such exclusions), the directors of the Company have
concluded that it would be in the best interests of the stockholders for the
Company to contract to indemnify such persons as hereinafter provided; and
WHEREAS, the Company desires to have Indemnitee serve or continue to serve
as a director or officer of the Company and/or a director, officer, partner,
trustee, agent or fiduciary of such other corporations, partnerships, joint
ventures, employee benefit plans, trusts or other enterprises (herein
collectively called "Affiliate of the Company") of which Indemnitee has been or
is serving, or will serve at the request of or for the convenience of or to
represent the interests of the Company, free from undue concern for
unpredictable, inappropriate or unreasonable claims for damages by reason of
Indemnitee's being a director or officer of the Company or a director, officer,
employee, trustee, partner, agent or fiduciary of an Affiliate of the Company,
or by reason of Indemnitee's decisions or actions on their behalf; and
WHEREAS, Indemnitee is willing to serve, or to continue to serve, or to
take on additional service for, the Company and/or the Affiliates in such
aforesaid capacities on the condition that Indemnitee be indemnified as provided
for herein;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. SERVICES TO THE COMPANY. Indemnitee will serve and/or continue to
-----------------------
serve, at the will of the Company or under separate contract, if any such
contract exists, as a director and/or officer of the Company and/or as a
director, officer, employee, trustee, partner, agent or fiduciary of an
Affiliate of the Company faithfully and to the best of Indemnitee's ability so
long as Indemnitee is duly elected and qualified in accordance with the
provisions of the Bylaws or other applicable constitutive documents thereof;
provided that Indemnitee may at any time and for any reason resign from such
position (subject to any contractual obligation which Indemnitee shall have
assumed apart from this Agreement) and further provided that neither the Company
nor any Affiliate shall have any obligation under this Agreement to continue the
Indemnitee in any such position.
2. INDEMNIFICATION. The Company shall indemnify Indemnitee to the fullest
---------------
extent permitted, and in the manner required, by applicable law as in effect as
of the date hereof or as such laws may from time to time, be amended:
(a) If Indemnitee is a person who was or is made a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative in
nature, other than an action by or in the right of the Company, by reason of the
fact that Indemnitee is or was a director, officer, employee, trustee, partner,
agent, or fiduciary of the Company or is or was serving at the request of the
Company as a director, officer, employee, trustee, partner, agent or fiduciary
of an Affiliate of the Company, or by reason of anything done or not done by
Indemnitee in any such capacity, against expenses (including attorneys' fees),
costs, judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with such action, suit or
proceeding (including, but not limited to, the investigation, defense or appeal
thereof) if Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
Indemnitee's conduct was unlawful, or
(b) If Indemnitee is a person who was or is made a party or is
threatened to be made a party to any threatened, pending or completed action or
suit brought in the right of the Company to procure a judgment in its favor by
reason of the fact that Indemnitee is or was a director, officer, employee,
trustee, partner, agent or fiduciary of the Company or an Affiliate of the
Company or by reason of anything done or not done by Indemnitee in any such
capacity, against expenses (including attorneys' fees) and costs actually and
reasonably incurred by Indemnitee in connection with such action or suit
(including, but not limited to, the investigation, defense, settlement or appeal
thereof) if Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, except
that no such indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for gross
negligence or misconduct in the performance of Indemnitee's duty to the Company
unless, and only to the extent that, the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses and costs as such court shall deem proper.
(c) Notwithstanding any other provisions of this Agreement, to the
extent Indemnitee (i) has prepared to serve or has served as a witness or (ii)
has been successful on the merits or otherwise in defense of any action, suit,
investigation or proceeding referred to in subsections (a) or (b) of this
section, or in the defense of any claim, issue or matter described therein, the
Company shall indemnify Indemnitee against expenses (including attorneys' fees)
and costs actually and reasonably incurred by Indemnitee in connection therewith
(including, but not limited to, the preparation, service, investigation, defense
or appeal of such action, suit, investigation or proceeding).
(d) Notwithstanding anything to the contrary in the foregoing
provisions of this Section 2, Indemnitee shall not be entitled, as a matter of
right, to indemnification pursuant to this Section 2 (i) against costs and
expenses incurred in connection with any action, suit or proceeding commenced by
Indemnitee against the Company or any person who is or was a director or officer
of the Company or any of its affiliates, as defined in Rule 405 under the
Securities Act of 1933 ("Securities Act Affiliate") or any Affiliate of the
Company, but such indemnification may be provided by the Company in a specific
case as contemplated by Section
6 hereof; or (ii) in the event that Indemnitee has served as a witness in
cooperation with any party or entity which has threatened or brought any action,
suit or proceeding, whether civil, criminal, administrative, or investigative,
against the Company, any Securities Act Affiliate, any Affiliate of the Company,
or any director, officer, employee, trustee, partner, agent or fiduciary of any
thereof, but such indemnification may be provided by the Company in a specific
case as contemplated by Section 6 hereof.
3. PARTIAL INDEMNIFICATION. If Indemnitee is only partially successful in
-----------------------
the defense, investigation, settlement or appeal of any action, suit,
investigation or proceeding described in Section 2 hereof and therefore not
entitled hereunder to indemnification by the Company for the total amount of the
expenses (including attorneys' fees), costs, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee, the
Company shall nevertheless indemnify Indemnitee to the extent Indemnitee has
been partially successful.
4. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
-----------------------------------------------
(a) Upon written request by Indemnitee for indemnification pursuant
to Section 2 hereof, the determination as to whether or not Indemnitee shall be
entitled to indemnification by reason of satisfying the applicable standard of
conduct as set forth in Section 2 shall be made (i) by the Board of Directors of
the Company by a majority vote of a quorum consisting of Disinterested Directors
(as hereinafter defined) or, (ii) if such a quorum is not obtainable or, even if
obtainable, if the Board of Directors by the majority vote of Disinterested
Directors so directs, by Independent Counsel in a written opinion to the Board
of Directors, a copy of which shall be delivered to the Indemnitee, or (iii) by
the stockholders. A determination as to the entitlement of Indemnitee to
indemnification pursuant to Section 2 hereof shall be made as aforesaid not
later than 60 days after the Company shall have received a written request for
indemnification. Indemnitee shall cooperate with the Company in making its
determination as aforesaid of Indemnitee's entitlement to indemnification,
including providing to the Company upon reasonable advance request any
documentation or information reasonably available to Indemnitee and material to
such determination. Any costs (including attorneys' fees) or expenses incurred
by Indemnitee in so cooperating with the Company shall be borne by the Company
and the Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom irrespective of the outcome of the determination as to Indemnitee's
satisfaction of the applicable standard of conduct set forth in Section 2.
(b) The termination of any action, suit, investigation or
proceeding described in Section 2 hereof by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption for the purposes of this Agreement that Indemnitee
did not act in good faith and in a manner which Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company and, with respect
to any criminal action or proceeding, that Indemnitee had reasonable cause to
believe that Indemnitee's conduct was unlawful.
(c) In making a determination pursuant to Section 4(a) hereof as
to whether or not Indemnitee satisfied the applicable standard of conduct set
forth in Section 2 hereof, the person or persons making such determination shall
presume that Indemnitee met the applicable standard
of conduct set forth in Section 2(a), 2(b), or 2(c), as the case may be, absent
evidence to the contrary and the absence or unavailability of evidence on the
matter to be decided Indemnitee shall be entitled to the benefit of such
presumption. The Company shall have the burden of proof in the making of any
determination contrary to such presumption.
(d) For purposes of this Agreement:
(i) "Disinterested Director" with respect to any request
by Indemnitee for indemnification hereunder shall mean a director of the Company
who is or was not a party to or a subject of the action, suit, investigation or
proceeding in respect of which indemnification is being sought by Indemnitee.
(ii) "Independent Counsel" shall mean a law firm or a
member of a law firm that neither is nor in the past five years has been
retained to represent in any material matter the Company or any Securities Act
Affiliate or Indemnitee or any other party to the action, suit, investigation or
proceeding giving rise to a claim for indemnification hereunder and which, under
applicable standards of professional conduct then prevailing, would not have a
conflict of interest in representing either the Company or Indemnitee in an
action to determine Indemnitee's right to indemnification under this Agreement
and that is reasonably acceptable to the Company and Indemnitee. For purposes
hereof, counsel shall not be deemed to regularly represent any government or
governmental entity which may have commenced any action, suit, investigation or
proceeding or be asserting any claim against Indemnitee solely by reason of
having regularly represented any department, commission, authority, subdivision
or public benefit corporation of or created by such government or governmental
entity which is a party to such action, suit, investigation or proceeding or
before which it is being prosecuted or which is making any such claim. In the
event that the parties are unable to agree on the selection of Independent
Counsel, such counsel shall be selected by lot from among the Wilmington,
Delaware law firms having more than ten attorneys and having a rating of "av" or
better in the then current Xxxxxxxxxx-Xxxxxxx Law directory. Such selection
shall be made in the presence of Indemnitee (or Indemnitee's representative),
and the parties shall contact, in the order of their selection by lot, such law
firms, requesting each such firm to accept engagement to make the determination
required hereunder until one of such firms accepts such engagement. The fees and
expenses of counsel in connection with making any determination contemplated
hereunder shall be paid by the Company and, if requested by such counsel, the
Company shall give such counsel an appropriate written agreement with respect to
the payment of their fees and expenses and such other matters as may be
reasonably requested by counsel.
(e) In the event that a determination shall be made pursuant to (i)
Section 4(a) hereof that Indemnitee shall not be entitled to indemnification
hereunder in respect of any claim made by Indemnitee therefor by reason of
Indemnitee's failing to satisfy the applicable standard set forth in Section 2
hereof, or (ii) Section 5 hereof not to pay Indemnitee's expenses and costs, or
in the event such determination is not made, Indemnitee shall be entitled, at
Indemnitee's option, to a final judicial determination or determination in
arbitration of Indemnitee's entitlement to indemnification hereunder in respect
of such claim (including application of the standards set forth in Section 4(b)
and (c) hereof to the making of such determination) or Indemnitee's entitlement
to such an advancement of expenses and costs pursuant to Section 5
hereof. In the event Indemnitee seeks a judicial determination, Indemnitee may
initially seek such determination by commencing an appropriate action in an
appropriate court of the State of Delaware or any other court of competent
jurisdiction. In the event Indemnitee seeks a determination in arbitration, such
arbitration shall be conducted pursuant to the rules of the American Arbitration
Association and any such determination shall be made within 60 days of following
the filing of the demand for arbitration. The Company shall not raise as a
defense in any such judicial determination or determination in arbitration of
the entitlement of Indemnitee to indemnification hereunder any prior
determination made pursuant to this Agreement of Indemnitee's right to
indemnification under this Agreement or advancement of expenses and costs on
such claim or any other claim, and for all purposes of this Agreement any such
judicial determination or determination in arbitration shall be made de novo and
without prejudice by reason of any such prior determination. The Company further
agrees to stipulate to any court or arbitrator in which such action or
arbitration shall have been commenced or appealed that the Company agrees to be
bound, for the purposes of such judicial determination or determination in
arbitration, by the presumption and burden of proof provisions set forth in
Section 4(c) hereof. If the court or arbitrator shall determine that Indemnitee
is entitled to indemnification or advancements hereunder as to any expenses
(including attorneys' fees) costs, judgments, penalties, fines and amounts paid
in settlement in respect of any claim, issue or matter involved in the action,
suit, investigation or proceeding in respect of which indemnification is sought
hereunder, the Company shall pay all expenses (including attorneys' fees) and
costs actually incurred by Indemnitee in connection with such judicial
determination or determination in arbitration (including, but not limited to,
any appellate proceedings).
(f) If, and to the extent it is finally determined hereunder that
Indemnitee is not entitled to indemnification, or is entitled only to partial
indemnification, Indemnitee agrees to reimburse the Company for all expenses and
costs advanced or prepaid hereunder, or the proper proportion thereof, as the
case may be, within 180 days after receipt of an itemized written statement
therefor from the Company, other than the expenses of (i) obtaining the judicial
determination referred to in Sections 4(e) and 5 hereof, (ii) cooperating with
the Company in making its determination, as set forth in Section 4(a) hereof, or
(iii) obtaining the opinion of Independent Counsel pursuant to Section 4(a)
hereof.
5. ADVANCEMENT OF EXPENSES AND COSTS. All reasonable expenses (including
---------------------------------
attorneys' fees) and costs incurred by Indemnitee in preparing to serve or
serving as a witness or in investigating, defending, or appealing any
threatened, pending or completed civil or criminal action, suit or proceeding,
administrative or investigative, described in Section 2 hereof and not excluded
by clauses (i) or (ii) of Section 2(d), or in connection with a judicial
determination or determination in arbitration pursuant to Section 4(e) or 5
hereof, shall be paid by the Company (in advance of the final disposition of
such action, suit or proceeding) at the request of Indemnitee within 20 days
after the receipt by the Company from the Indemnitee of a statement reasonably
evidencing the expenses and costs incurred by Indemnitee in connection
therewith, and averring that they do not relate to matters described in the
aforesaid clauses (i) or (ii) of Section 2(d), together with a written
undertaking by or on behalf of Indemnitee to repay such amount if it is
ultimately determined that Indemnitee is not entitled to be indemnified against
such expenses and costs by the Company as provided by this Agreement, the
Company's Certificate of Incorporation or By-Laws, applicable law or otherwise.
Except when such
advances relate to service as a witness only, the Board of Directors shall make
a determination in the specific case regarding Indemnitee's entitlement to such
advancements of expenses and costs within 14 days after receipt of the aforesaid
statement and undertaking. In the event the Board of Directors determines not to
so pay Indemnitee's expenses and costs, Indemnitee shall be entitled, at
Indemnitee's option, to a judicial determination or determination in arbitration
Indemnitee's right to such advancement of expenses and costs as set forth in
Section 4(e) hereof.
6. OTHER RIGHTS TO INDEMNIFICATION. The indemnification and advancement
-------------------------------
of expenses (including attorneys' fees) and costs provided by this Agreement
shall not be deemed exclusive of any other rights to which Indemnitee may now or
in the future be entitled under any provision of law, the Certificate of
Incorporation or any Bylaw of the Company or any other agreement or any vote of
stockholders or directors or otherwise, whether as to action in Indemnitee's
official capacity or in another capacity while occupying any of the positions or
having any of the relationships referred to in Section 2 of this Agreement;
provided, however, that Indemnitee hereby acknowledges and agrees that the
reorganization transactions and the distribution of shares of the Company's
common stock to the stockholders of Varian Associates, Inc. ("Varian") pursuant
to the Distribution Agreement by and among the Company, Varian and Varian
Semiconductor Equipment Associates, Inc. dated January 14, 1999 (the
"Distribution") does not constitute a transaction contemplated by Section 7(b)
of the Indemnity Agreement by and between Indemnitee and Varian dated
______________, 19__ and that such Section 7(b) does not apply to the
Distribution.
7. MERGER OR CONSOLIDATION OF THE COMPANY.
--------------------------------------
(a) In the event that the Company or a Securities Act Affiliate of
the Company shall be a constituent corporation in a consolidation or a merger,
whether or not the Company or such Securities Act Affiliate of the Company, as
the case may be, is the resulting or surviving corporation, Indemnitee shall
stand in the same position under this Agreement with respect to the resulting or
surviving corporation as Indemnitee would have with respect to the Company if
its separate existence had continued or with respect to the Securities Act
Affiliate of the Company if such affiliation had continued.
(b) In addition to any other provision of this Agreement, the
Company hereby covenants and agrees that it will not consummate any
consolidation, merger or other business combination nor will it transfer 50% or
more of its assets (in one or a series of related transactions) unless the
ultimate parent of the other party to such transaction, whether or not in the
event of a business combination the Company is the surviving entity, shall have
executed an agreement stating that such party (i) shall use its best efforts to
maintain any director and officer insurance policy in an amount and with
coverage no less favorable than that which exists as of the date hereof, or the
closest practicable equivalent thereto, (ii) shall indemnify Indemnitee, except
in the circumstances set forth in Section 2(d)(i) and (ii) of this Agreement
against any expenses (including attorneys' fees), costs, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with any suit or proceeding, whether civil, criminal,
administrative or investigative in nature, to which Indemnitee was or is made a
party or witness or is threatened to be made a party or witness, by reason of
the fact that Indemnitee is or was a director, officer, employee, trustee,
partner, agent or
fiduciary of the Company or is or was serving at the request of the Company as a
director, officer, employee, trustee, partner, agent or fiduciary of an
Affiliate of the Company, or by reason of anything done or not done by
Indemnitee in such capacity, and (iii) shall pay, except in the circumstances
set forth in Section 2(d)(i) and (ii) (in advance of the final disposition of
the action, suit or proceeding) all reasonable expenses (including attorneys'
fees) and costs incurred by Indemnitee in preparing to serve or serving as a
witness or in investigating, defending or appealing any threatened, pending or
completed civil or criminal action, suit or proceeding, administrative or
investigative, in each case within 20 days of the submission by Indemnitee of a
statement requesting the payment of such expenses and costs and reasonably
evidencing the expenses and costs incurred by Indemnitee in connection
therewith, and (iv) shall maintain irrevocable standby letters of credit in the
aggregate amount of $5 million for all directors and officers.
8. ATTORNEYS' FEES. In the event that Indemnitee is subject to or
---------------
intervenes in any legal action in which the validity or enforceability of this
Agreement is at issue or institutes any legal action to enforce Indemnitee's
rights under, or to recover damages for breach of, this Agreement (other than an
action referred to in Section 4(e) hereof), Indemnitee, if Indemnitee prevails
in whole or in part in such action, shall be entitled to recover from the
Company and shall be indemnified by the Company against, any actual expenses for
attorneys' fees and disbursements reasonably incurred by Indemnitee.
9. DURATION OF AGREEMENT; SUCCESSORS AND ASSIGNS.
---------------------------------------------
(a) This Agreement shall continue until and terminate upon the
later of: (i) ten years after Indemnitee has ceased to occupy any of the
positions or have any of the relationships referred to in Section 2 of this
Agreement or (ii) the termination of all pending or threatened actions, suits,
proceedings or investigations.
(b) This Agreement shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of Indemnitee and
Indemnitee's spouse, heirs, devisees, executors and administrators.
10. SEVERABILITY. If any provision or provisions of this Agreement shall
------------
be held to be invalid, illegal or unenforceable for any reason whatsoever (i)
the validity, legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby, and (ii) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable that are not themselves invalid, illegal
or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
11. IDENTICAL COUNTERPARTS. This Agreement may be executed ln one or more
----------------------
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one
such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the
existence of this Agreement.
12. HEADINGS. The headings of the paragraphs of this Agreement are
--------
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
13. USE OF CERTAIN TERMS. As used in this Agreement, the words "herein,"
--------------------
"hereof," and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph, subparagraph
or other subdivision. For purposes of this Agreement, references to "fines"
shall include any excise taxes assessed on Indemnitee with respect to any
employee benefit plan; and references to "serving at the request of the Company"
shall include any service as a director, officer, employee, trustee, partner,
agent or fiduciary of the Company which imposes duties on, or involves services
by, Indemnitee with respect to any employee benefit plan, its participants or
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.
14. MODIFICATION AND WAIVER. No supplement, modification or amendment of
-----------------------
this Agreement shall be binding unless executed in writing by both of 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.
15. NOTICE BY INDEMNITEE. Indemnitee agrees to promptly notify the Company
--------------------
in writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any matter which maybe
subject to indemnification covered hereunder, either civil, criminal or
investigative.
16. NOTICES. All notices, requests, demand and other communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed or if (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
(a) If to Indemnitee, at the address indicated on the signature
page hereof.
(b) If to the Company to:
Varian, Inc.
0000 Xxxxxx Xxx
Xxxx Xxxx, XX 00000-0000
Attn: Vice President and General Counsel
or to such other address as either may subsequently furnish to the other in
writing.
17. GOVERNING LAW. The parties hereto agree that this Agreement shall be
-------------
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, without regard to the conflicts of law principles thereof.
18. SUBROGATION. In the event of any payment under this Agreement, the
-----------
Company shall be subrogated to the extent of such payment to all 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.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
VARIAN, INC. INDEMNITEE
_________________________________ _________________________________
[Name] [Name]
[Title] [Address]
ATTEST:
_________________________________
[Name]
[Title]
