EXHIBIT 10.8
AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT
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THIS AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT ("Agreement") is
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entered into effective as of November 1, 1998, by and between VARIAN ASSOCIATES,
INC., a Delaware corporation (the "Company")/1/, and J. ▇▇▇▇▇ ▇'▇▇▇▇▇▇, an
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employee of the Company ("Employee").
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The Company's Board of Directors (the "Board") has determined that it is in
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the best interest of the Company and its stockholders for the Company to agree
to pay Employee termination compensation in the event Employee should leave the
employ of the Company under the circumstances described below. The Board
recognizes that the possibility of a proposal from a third person, whether or
not solicited by the Company, concerning a possible "Change in Control" of the
Company (as such language is defined in Section 3(d)) will be unsettling to
Employee. Therefore, the arrangements set forth in this Agreement are being
made to help assure a continuing dedication by Employee to Employee's duties to
the Company notwithstanding the proposal or occurrence of a Change in Control.
The Board believes it imperative, should the Company receive any proposal from a
third party, that Employee, without being influenced by the uncertainties of
Employee's own situation, be able to assess and advise the Board whether such
proposals are in the best interest of the Company and its stockholders, and to
enable Employee to take action regarding such proposals as the Board might
determine to be appropriate. The Board also wishes to demonstrate to key
personnel that the Company desires to enhance management relations and its
ability to retain and, if needed, to attract new management, and intends to
ensure that loyal and dedicated management personnel are treated fairly.
In view of the foregoing, the Company and Employee agree as follows:
1. EFFECTIVE DATE AND TERM OF AGREEMENT.
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This Agreement is effective and binding on the Company and Employee as
of the date hereof; provided, however, that, subject to Section 2(d), the
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provisions of Sections 3 and 4 shall become operative only upon the Change in
Control Date.
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/1/ "Company" shall include the Company, any successor to the Company's
business and/or assets, and any party which executes and delivers the
agreement required by Section 7(e) or which otherwise becomes bound by the
terms and conditions of this Agreement by operation of law or otherwise.
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2. EMPLOYMENT OF EMPLOYEE.
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(a) Except as provided in Sections 2(b), 2(c) and 2(d), nothing in
this Agreement shall affect any right which Employee may otherwise have to
terminate Employee's employment, nor shall anything in this Agreement affect any
right which the Company may have to terminate Employee's employment at any time
in any lawful manner.
(b) In the event of a Potential Change in Control, to be entitled to
receive the benefits provided by this Agreement, Employee will not voluntarily
leave the employ of the Company, and will continue to perform Employee's regular
duties and the services specified in the recitals of this Agreement until the
Change in Control Date. Should Employee voluntarily terminate employment prior
to the Change in Control Date, this Agreement shall lapse upon such termination
and be of no further force or effect.
(c) If Employee's employment terminates on or after the Change in
Control Date, the Company will provide to Employee the payments and benefits as
provided in Sections 3 and 4.
(d) If Employee's employment is terminated by the Company prior to
the Change in Control Date but on or after a Potential Change in Control Date,
then the Company will provide to Employee the payments and benefits as provided
in Sections 3 and 4 unless the Company reasonably demonstrates that Employee's
termination of employment neither (i) was at the request of a third party who
has taken steps reasonably calculated to effect a Change in Control nor (ii)
arose in connection with or in anticipation of a Change in Control. Solely for
purposes of determining the timing of payments and the provision of benefits in
Sections 3 and 4 under the circumstances described in this Section 2(d),
Employee's date of termination shall be deemed to be the Change in Control Date.
3. TERMINATION FOLLOWING CHANGE IN CONTROL.
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(a) If a Change in Control shall have occurred, Employee shall be
entitled to the benefits provided in Section 4 upon the subsequent termination
of Employee's employment within the applicable period set forth in Section 4
unless such termination is due to Employee's death, Retirement or Disability or
is for Cause or is effected by Employee other than for Good Reason (as such
terms are defined in Section 3(d)).
(b) If following a Change in Control, Employee's employment is
terminated by reason of Employee's death or Disability, Employee shall be
entitled to death or long-term disability benefits from the Company no less
favorable than the most favorable benefits to which Employee would have been
entitled had the death or Disability occurred at any time during the period
commencing one (1) year prior to the Change in Control.
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(c) If Employee's employment shall be terminated by the Company for
Cause or by Employee other than for Good Reason during the term of this
Agreement, the Company shall pay Employee's Base Salary through the date of
termination at the rate in effect at the time notice of termination is given,
and the Company shall have no further obligations to Employee under this
Agreement.
(d) For purposes of this Agreement:
"Base Salary" shall mean the annual base salary paid to Employee
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immediately prior to a Change in Control, provided that such amount shall in no
event be less than the annual base salary paid to Employee during the one (1)
year period immediately prior to the Change in Control.
A "Change in Control" shall be deemed to have occurred if:
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(i) Any individual or group constituting a "person", as such
term is used in Sections 13(d) and 14(d)(2) of the Exchange Act (other than
(A) the Company or any of its subsidiaries or (B) any trustee or other
fiduciary holding securities under an employee benefit plan of the Company or
of any of its subsidiaries), is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing thirty percent (30%) or
more of the combined voting power of the Company's outstanding securities then
entitled ordinarily (and apart from rights accruing under special
circumstances) to vote for the election of directors; or
(ii) Continuing Directors cease to constitute at least a
majority of the Board; or
(iii) there occurs a reorganization, merger, consolidation or
other corporate transaction involving the Company (a "Transaction"), in each
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case with respect to which the stockholders of the Company immediately prior
to such Transaction do not, immediately after the Transaction, own more than
50% of the combined voting power of the Company or other corporation resulting
from such Transaction; or
(iv) all or substantially all of the assets of the Company are
sold, liquidated or distributed;
provided, however, that a "Change in Control" shall not be deemed to have
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occurred under this Agreement if, prior to the occurrence of a specified event
that would otherwise constitute a Change in Control hereunder, the disinterested
Continuing Directors then in office, by a majority vote thereof, determine that
the occurrence of such specified event shall not be deemed to be a Change in
Control with respect to Employee hereunder if the Change in Control results from
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actions or events in which Employee is a participant in a capacity other than
solely as an officer, employee or director of the Company; provided further,
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however, that a "Change in Control" shall not include the contemplated
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reorganization of the Company (the "Triple Spin") into three distinct corporate
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entities with separate management (the "Post-Spin Companies").
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"Change in Control Date" shall mean the date on which a Change
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in Control occurs.
"Cause" shall mean:
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(i) The continued willful failure of Employee to perform
Employee's duties to the Company (other than any such failure resulting from
Employee's incapacity due to physical or mental illness) after written notice
thereof (specifying the particulars thereof in reasonable detail) and a
reasonable opportunity to be heard and cure such failure are given to Employee
by the Board or a committee thereof; or
(ii) The willful commission by Employee of a wrongful act
that caused or was reasonably likely to cause substantial damage to the
Company, or an act of fraud in the performance of Employee's duties on behalf
of the Company; or
(iii) The conviction of Employee for commission of a felony in
connection with the performance of Employee's duties on behalf of the Company;
or
(iv) The order of a federal or state regulatory authority
having jurisdiction over the Company or its operations or by a court of
competent jurisdiction requiring the termination of Employee's employment by
the Company.
"Continuing Directors" shall mean the directors of the Company
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in office on the date hereof and any successor to any such director who was
nominated or selected by a majority of the Continuing Directors in office at
the time of the director's nomination or selection and who is not an
"affiliate" or "associate" (as defined in Regulation 12B under the Exchange
Act) of any person who is the beneficial owner, directly or indirectly, of
securities representing ten percent (10%) or more of the combined voting power
of the Company's outstanding securities then entitled ordinarily to vote for
the election of directors.
"Disability" shall mean Employee's incapacity due to physical or
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mental illness such that Employee shall have become qualified to receive
benefits under the Company's long-term disability plan as in effect on the date
of the Change in Control.
"Dispute" shall mean, in the case of termination of Employee's
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employment for Disability or Cause, that Employee challenges the existence of
Disability or
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Cause, and in the case of termination of Employee's employment for Good
Reason, that the Company challenges the existence of Good Reason for
termination of Employee's employment.
"Exchange Act" means the Securities Exchange Act of 1934, as
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amended.
"Good Reason" shall mean:
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(i) The assignment of Employee to duties which are materially
different from Employee's duties immediately prior to the Change in Control and
which result in a material reduction in Employee's authority and responsibility
when compared to the highest level of authority and responsibility assigned to
Employee at any time during the six (6) month period prior to the Change in
Control Date; or
(ii) A reduction of Employee's total compensation as the same
may have been increased from time to time after the Change in Control Date
other than (A) a reduction implemented with the consent of Employee or (B) a
reduction that is generally comparable (proportionately) to compensation
reductions imposed on senior executives of the Company generally; or
(iii) The failure to provide to Employee the benefits and
perquisites, including participation on a comparable basis in the Company's
stock option, incentive, and other similar plans in which employees of the
Company of comparable title and salary grade participate, as were provided to
Employee immediately prior to a Change in Control, or with a package of benefits
and perquisites that are substantially comparable in all material respects to
such benefits and perquisites provided prior to the Change in Control; provided,
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that the use by Employee of aircraft owned or leased by the Company shall not be
considered in determining whether Good Reason exists under this clause (iii); or
(iv) The relocation of the office of the Company where
Employee is employed immediately prior to the Change in Control Date (the "CIC
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Location") to a location which is more than 50 miles away from the CIC
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Location or the Company's requiring Employee to be based more than 50 miles
away from the CIC Location (except for required travel on the Company's
business to an extent substantially consistent with Employee's customary
business travel obligations in the ordinary course of business prior to the
Change in Control Date);
(v) The failure of the Company to obtain promptly upon any
Change in Control the express written assumption of an agreement to perform
this Agreement by any successor as contemplated in Section 7(e); or
(vi) The attempted termination of Employee's employment for
Cause on grounds insufficient to constitute a basis of termination for Cause
under this Agreement; or
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(vii) The failure of the Company to promptly make any payment
into escrow when so required by Section 3(f).
"Potential Change in Control" shall mean the earliest to occur
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of (a) the execution of an agreement or letter of intent, the consummation of
the transactions described in which would result in a Change in Control, (b)
the approval by the Board of a transaction or series of transactions, the
consummation of which would result in a Change in Control, or (c) the public
announcement of a tender offer for the Company's voting stock, the completion
of which would result in a Change in Control; provided, that no such event
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shall be a "Potential Change in Control" unless (i) in the case of any
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agreement or letter of intent described in clause (a), the transaction
described therein is subsequently consummated by the Company and the other
party or parties to such agreement or letter of intent and thereupon
constitutes a "Change in Control", (ii) in the case of any Board-approved
transaction described in clause (b), the transaction so approved is
subsequently consummated and thereupon constitutes a "Change in Control" or
(iii) in the case of any tender offer described in clause (c), such tender
offer is subsequently completed and such completion thereupon constitutes a
"Change in Control".
"Potential Change in Control Date" shall mean the date on which
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a Potential Change in Control occurs.
"Retirement" shall mean Employee's actual retirement after
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reaching the normal or early retirement date provided for in the Company's
Retirement and Profit-Sharing Program as in effect on the date of Employee's
termination of employment.
(e) Any termination of employment by the Company or by Employee
shall be communicated by written notice, specify the date of termination,
state the specific basis for termination and set forth in reasonable detail
the facts and circumstances of the termination in order to provide a basis for
determining the entitlement to any payments under this Agreement.
(f) If within thirty (30) days after notice of termination is given,
the party to whom the notice was given notifies the other party that a Dispute
exists, the parties will promptly pursue resolution of such Dispute with
reasonable diligence; provided, however, that pending resolution of any such
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Dispute, the Company shall pay 75% of any amounts which would otherwise be due
Employee pursuant to Section 4 if such Dispute did not exist into escrow pending
resolution of such Dispute and pay 25% of such amounts to Employee. Employee
agrees to return to the Company any such amounts to which it is ultimately
determined that he is not entitled.
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4. PAYMENTS AND BENEFITS UPON TERMINATION.
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(a) If within eighteen (18) months after a Change in Control, the
Company terminates Employee's employment other than by reason of Employee's
death, Disability, Retirement or for Cause, or if Employee terminates Employee's
employment for Good Reason, then the Employee shall be entitled to the following
payments and benefits:
(i) The Company shall pay to Employee as compensation for
services rendered, no later than five (5) business days following the date
of termination, a lump sum severance payment equal to 2.99 multiplied by
the sum of (A) Employee's Base Salary and (B) the highest annual bonus paid
to Employee in any of the three years ending prior to the date of
termination under the Company's Management Incentive Plan (MIP).
(ii) The Company shall pay to Employee as compensation for
services rendered, no later than five (5) business days following the date
of termination, a lump sum payment equal to a pro rata portion (based on
the number of days elapsed during the year in which the termination occurs)
of Employee's target bonus under the Company's Management Incentive Plan
(MIP) for the year in which the termination occurs.
(iii) All waiting periods for the exercise of any stock options
granted to Employee and all conditions or restrictions of any restricted
stock granted to Employee shall terminate, and all such options shall be
exercisable in full according to their terms, and the restricted stock
shall be transferred to Employee as soon as reasonably practicable
thereafter.
(iv) Employee's participation as of the date of termination in
the life, medical/dental/vision and disability insurance plans and
financial/tax counseling plan of the Company shall be continued on the same
terms (including any cost sharing) as if Employee were an employee of the
Company (or equivalent benefits provided) until the earlier of Employee's
commencement of substantially equivalent full-time employment with a new
employer or twenty-four (24) months after the date of termination;
provided, however, that after the date of termination, Employee shall no
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longer be entitled to receive Company-paid executive physicals or, upon
expiration of the applicable memberships, Company-paid airline memberships.
In the event Employee shall die before the expiration of the period during
which the Company is required to continue Employee's participation in such
insurance plans, the participation of Employee's surviving spouse and
family in the Company's insurance plans shall continue throughout such
period.
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(v) Employee may elect upon termination to purchase any
automobile then in the possession of Employee and subject to a lease of
which the Company is the lessor by payment to the Company of the residual
value set forth in the lease, without any increase for remaining lease
payments during the term or other lease breakage costs. Employee may elect
to have any such payment deducted from any payments due the Employee
hereunder.
(vi) All payments and benefits provided under this Agreement
shall be subject to applicable tax withholding.
(b) Following Employee's termination of employment for any reason,
the Company shall have the unconditional right to reduce any payments owed to
Employee hereunder by the amount of any due and unpaid principal and interest
on any loans by the Company to Employee and Employee hereby agrees and
consents to such right on the part of the Company.
(c) Following Employee's termination of employment for any reason,
Employee shall no longer be entitled to (i) the use of aircraft owned or leased
by the Company or (ii) property tax subsidies from the Company.
5. GROSS-UP PAYMENT.
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(a) Notwithstanding anything herein to the contrary, if it is
determined that any Payment would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or
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any interest or penalties with respect to such excise tax (such excise tax,
together with any interest or penalties thereon, is herein referred to as an
"Excise Tax"), then Employee shall be entitled to an additional payment (a
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"Gross-Up Payment") in an amount that will place Employee in the same after-tax
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economic position that Employee would have enjoyed if the Excise Tax had not
applied to the Payment. The amount of the Gross-Up Payment shall be determined
by a nationally-recognized independent public accounting firm designated by
agreement between Employee and the Company (the "Accounting Firm"). No Gross-Up
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Payments shall be payable hereunder if the Accounting Firm determines that the
Payments are not subject to an Excise Tax.
"Payment" means (i) any amount due or paid to Employee under this
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Agreement, (ii) any amount that is due or paid to Employee under any plan,
program or arrangement of the Company and its subsidiaries and (iii) any amount
or benefit that is due or payable to Employee under this Agreement or under any
plan, program or arrangement of the Company and its subsidiaries not otherwise
covered under clause (i) or (ii) hereof which must reasonably be taken into
account under Section 280G of the Code in determining the amount the "parachute
payments" received by Employee, including, without limitation, any amounts which
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must be taken into account under Section 280G of the Code as a result of (A) the
acceleration of the vesting of any option, restricted stock or other equity
award, (B) the acceleration of the time at which any payment or benefit is
receivable by Employee or (C) any contingent severance or other amounts that are
payable to Employee.
(b) Subject to the provisions of Section 5(c), all determinations
required under this Section 5, including whether a Gross-Up Payment is required,
the amount of the Payments constituting excess parachute payments, and the
amount of the Gross-Up Payment, shall be made by the Accounting Firm, which
shall provide detailed supporting calculations both to Employee and the Company
within fifteen days of the date reasonably requested by Employee or the Company
on which a determination under this Section 5 is necessary or advisable. The
Company shall pay to Employee the initial Gross-Up Payment within 5 days of the
receipt by Employee and the Company of the determination of the Accounting Firm.
If the Accounting Firm determines that no Excise Tax is payable by Employee, the
Company shall cause its accountants to provide Employee with an opinion that the
Accounting Firm has substantial authority under the Code not to report an Excise
Tax on Employee's federal income tax return. Any determination by the
Accounting Firm shall be binding upon Employee and the Company. If the initial
Gross-Up Payment is insufficient to cover the amount of the Excise Tax that is
ultimately determined to be owing by Employee with respect to any Payment
(hereinafter an "Underpayment"), the Company, after exhausting its remedies
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under Section 5(c) below, shall promptly pay to Employee an additional Gross-Up
Payment in respect of the Underpayment.
(c) Employee shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of a Gross-Up Payment. Such notice shall be given as soon as
practicable after Employee knows of such claim and shall apprise the Company of
the nature of the claim and the date on which the claim is requested to be paid.
Employee agrees not to pay the claim until the expiration of the thirty (30) day
period following the date on which Employee notifies the Company, or such
shorter period ending on the date the Taxes with respect to such claim are due
(the "Notice Period"). If the Company notifies Employee in writing prior to the
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expiration of the Notice Period that it desires to contest the claim, Employee
shall: (i) give the Company any information reasonably requested by the Company
relating to the claim; (ii) take such action in connection with the claim as the
Company may reasonably request, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by
the Company and reasonably acceptable to Employee; (iii) cooperate with the
Company in good faith in contesting the claim; and (iv) permit the Company to
participate in any proceedings relating to the claim. Employee shall permit the
Company to control all proceedings related to the claim and, at its option,
permit the Company to pursue or forgo any and all administrative appeals,
proceedings, hearings, and conferences with the taxing authority in respect of
such claim. If requested by the Company, Employee agrees either to pay the tax
claimed and ▇▇▇ for a refund or contest the claim in any permissible manner and
to prosecute such contest to a determination before any administrative
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tribunal, in a court of initial jurisdiction and in one or more appellate
courts as the Company shall determine; provided, however, that, if the Company
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directs Employee to pay such claim and pursue a refund, the Company shall
advance the amount of such payment to Employee on an after-tax and interest-
free basis (an "Advance"). The Company's control of the contest related to the
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claim shall be limited to the issues related to the Gross-Up Payment and
Employee shall be entitled to settle or contest, as the case may be, any other
issues raised by the Internal Revenue Service or other taxing authority. If
the Company does not notify Employee in writing prior to the end of the Notice
Period of its desire to contest the claim, the Company shall pay to Employee
an additional Gross-Up Payment in respect of the excess parachute payments
that are the subject of the claim, and Employee agrees to pay the amount of
the Excise Tax that is the subject of the claim to the applicable taxing
authority in accordance with applicable law.
(d) If, after receipt by Employee of an Advance, Employee becomes
entitled to a refund with respect to the claim to which such Advance relates,
Employee shall pay the Company the amount of the refund (together with any
interest paid or credited thereon after Taxes applicable thereto). If, after
receipt by Employee of an Advance, a determination is made that Employee shall
not be entitled to any refund with respect to the claim and the Company does not
promptly notify Employee of its intent to contest the denial of refund, then the
amount of the Advance shall not be required to be repaid by Employee and the
amount thereof shall offset the amount of the additional Gross-Up Payment then
owing to Employee.
(e) The Company shall indemnify Employee and hold Employee harmless,
on an after-tax basis, from any costs, expenses, penalties, fines, interest or
other liabilities ("Losses") incurred by Employee with respect to the exercise
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by the Company of any of its rights under this Section 5, including, without
limitation, any Losses related to the Company's decision to contest a claim or
any imputed income to Employee resulting from any Advance or action taken on
Employee's behalf by the Company hereunder. The Company shall pay all legal
fees and expenses incurred under this Section 5, and shall promptly reimburse
Employee for the reasonable expenses incurred by Employee in connection with any
actions taken by the Company or required to be taken by Employee hereunder. The
Company shall also pay all of the fees and expenses of the Accounting Firm,
including, without limitation, the fees and expenses related to the opinion
referred to in Section 5(b).
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6. LONG TERM INCENTIVE PLAN.
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Upon the occurrence of a Change in Control, each of Employee's
outstanding awards under the Long Term Incentive feature of the Company's
Omnibus Stock Plan (the "LTIP") shall be settled for an amount equal to each
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such award's target payout within five (5) days of the date of the Change in
Control; provided, however, that if the LTIP and the outstanding LTIP awards are
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assumed by the Company's successor, such awards shall remain outstanding and be
settled in accordance with their terms; provided further, however, that upon the
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termination of Employee's employment under circumstances described in Section
3(a), each then outstanding LTIP award of Employee shall be settled in the
manner described above. LTIP awards settled on an accelerated basis shall not
be discounted to take into account such early settlement.
7. GENERAL.
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(a) Employee shall retain in confidence under the conditions of the
Company's confidentiality agreement with Employee any proprietary or other
confidential information known to Employee concerning the Company and its
business so long as such information is not publicly disclosed and disclosure is
not required by an order of any governmental body or court. If required,
Employee shall return to the Company any memoranda, documents or other materials
proprietary to the Company.
(b) While employed by the Company and following the termination of
such employment (other than a termination of employment by Employee for Good
Reason or by the Company other than for Cause) for a period of two (2) years,
Employee shall not:
(i) whether for Employee's own account or for the account of
any other individual, partnership, firm, corporation or other business
organization, intentionally solicit, endeavor to entice away from the
Company, any Post-Spin Company or a subsidiary of any of them (each, a
"Protected Party"), or otherwise interfere with the relationship of a
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Protected Party with, any person who is employed by a Protected Party or
any person or entity who is, or was within the then most recent twelve (12)
month period, a customer or client of a Protected Party; or
(ii) without the prior written consent of the Company or the
applicable Post-Spin Company, in any geographic area in which the Company
or a Post-Spin Company is then conducting business, directly or indirectly
own an interest in, manage, operate, join, control, lend money or render
financial or other assistance to or participate in or be connected with, as
an officer, employee, partner, stockholder, consultant or otherwise, any
individual, partnership, firm, corporation or other business organization
or entity that is engaged in any business in which the Company, any Post-
Spin Company or
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any subsidiary of any of them is actively engaged at the time; provided,
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however, that the restrictions in this Section 7(b)(ii) shall not apply
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to (A) any non-employee directorships held by Employee as of the date
hereof or (B) ownership by Employee for personal investment purposes only
of not in excess of 1% of the voting stock of any publicly held
corporation.
Employee acknowledges that a breach of any of the covenants contained
in this Section 7(b) may result in material irreparable injury to the Company
for which there is no adequate remedy at law, that it may not be possible to
measure damages for such injuries precisely and that, in the event of such a
breach, any payments remaining under the terms of this Agreement shall cease and
the Company may be entitled to obtain a temporary restraining order and/or a
preliminary or permanent injunction restraining Employee from engaging in
activities prohibited by this Section 7(b) or such other relief as may be
required to specifically enforce any of the covenants in this Section 7(b).
Employee agrees to and hereby does submit to in personam jurisdiction before
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each and every such court in the State of California, County of Santa ▇▇▇▇▇, for
that purpose. This Section 7(b) shall survive any termination of this
Agreement.
(c) If litigation is brought by Employee to enforce or interpret any
provision contained in this Agreement, the Company shall indemnify Employee for
Employee's reasonable attorney's fees and disbursements incurred in such
litigation and pay prejudgment interest on any money judgment obtained by
Employee calculated at the prime rate of interest in effect from time to time at
the Bank of America, San Francisco, from the date that payment should have been
made under the Agreement, provided that Employee shall not have been found by
the court in which such litigation is pending to have had no cause in bringing
the action, or to have acted in bad faith, which finding must be final with the
time to appeal therefrom having expired and no appeal having been taken.
(d) Except as provided in Section 4, the Company's obligation to pay
to Employee the compensation and to make the arrangements provided in this
Agreement shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, any setoff, counterclaim,
recoupment, defense or other right which the Company may have against Employee
or anyone else. All amounts payable by the Company hereunder shall be paid
without notice or demand. Employee shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other employment.
(e) The Company shall require any successor, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all of the business and/or assets of the Company, by written
agreement to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
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(f) This Agreement shall inure to the benefit of and be
enforceable by (i) Employee's heirs, successors and assigns and (ii) the Post-
Spin Companies. If Employee should die while any amounts would still be
payable to Employee hereunder if Employee had continued to live, all such
amounts shall be paid in accordance with the terms of this Agreement to
Employee's heirs, successors and assigns.
(g) For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to Employee: If to the Company:
J. ▇▇▇▇▇ ▇'▇▇▇▇▇▇ Varian Associates, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Vice President, Human
Resources
or to such other address as either party furnishes to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
(h) This Agreement shall constitute the entire agreement between
Employee and the Company concerning the subject matter of this Agreement.
(i) The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of California
without giving effect to the provisions, principles or policies thereof
relating to choice or conflict of laws. The invalidity or unenforceability of
any provision of this Agreement in any circumstance shall not affect the
validity or enforceability of such provision in any other circumstance or the
validity or enforceability of any other provision of this Agreement, and,
except to the extent such provision is invalid or unenforceable, this
Agreement shall remain in full force and effect. Any provision in this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating or affecting the remaining provisions
hereof in such jurisdiction, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction. This Section 7(i) shall survive any termination of
this Agreement described in Section 2(b).
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(j) This Agreement may be terminated by the Company pursuant to a
resolution adopted by the Board at any time prior to a Potential Change in
Control Date. After a Change in Control Date or a Potential Change in Control
Date, this Agreement may only be terminated with the consent of Employee.
(k) No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement and this Agreement
shall supersede all prior agreements, negotiations, correspondence, undertakings
and communications of the parties, oral or written, with respect to the subject
matter hereof including, without limitation, the Change in Control Agreement
between Employee and the Company.
(l) In the event that the Company becomes party to a transaction
that is intended to qualify for "pooling of interests" accounting treatment
and, but for one or more of the provisions of this Agreement would so qualify,
then this Agreement shall be interpreted so as to preserve such accounting
treatment, and to the extent that any provision of this Agreement would
disqualify the transaction from pooling of interests accounting treatment,
then such provision shall be null and void. All determinations to be made in
connection with the preceding sentence shall be made by the independent
accounting firm whose opinion with respect to "pooling of interests" treatment
is required as a condition to the Company's consummation of such transaction.
(m) It is anticipated that in connection with the consummation of
the Triple Spin the Employee's employment with the Company will be terminated.
Upon the earlier of the consummation of the Triple Spin and any such
termination, the Employee will be entitled solely to the benefits provided
under the severance agreement dated as of the date hereof between the Employee
and the Company and this Agreement shall be of no further force and effect.
IN WITNESS WHEREOF, the parties acknowledge that they have read and
understand the terms of this Agreement and have executed this Agreement to be
effective as of November 1, 1998.
VARIAN ASSOCIATES, INC. EMPLOYEE
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ J. ▇▇▇▇▇ ▇'▇▇▇▇▇▇
-------------------------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ J. ▇▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Vice-President, Human Resoures
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