Exhibit 10.8
AMENDMENT
to the
CHANGE IN CONTROL
AGREEMENT
FOR [ POSITION
]
The Change in Control Agreement (the
“Agreement”), between Varian Medical Systems, Inc., a
Delaware corporation (the “Company”) and [ NAME
], an employee of the Company is hereby amended as follows
effective January 1, 2009:
1. Section 2(d) is hereby
amended in its entirety to read as follows;
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“(d)
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If
Employee’s employment is terminated by the Company without
Cause prior to the Change in Control Date but on or after a
Potential Change in Control Date, subject to Section 4(d),
then the Company will provide to Employee the payments and benefits
described 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. Such payments and benefits will be paid within five
(5) business days following the 60th day after the
Employee’s Separation from Service except that the stock
option and restricted stock acceleration benefits described in
Section 4(a)(iii) shall be provided on the Change in Control
Date. In the event that a Change in Control is not consummated,
Employee shall return to the Company any payments and benefits
provided to the Employee under this
Section 2(d).”
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2. Section 3(b) is hereby
amended in its entirety to read as follows:
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“(b)
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If within
eighteen (18) months after a Change in Control, Employee
incurs a Separation from Service by reason of Employee’s
death or Disability, Employee (or, if applicable, his or her
estate) 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. To the extent such
benefits are taxable to Employee, the benefits provided during the
calendar year shall not affect the benefits to be provided in any
other calendar year and the benefits shall not be subject to
liquidation or exchange for another benefit.”
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3. The following definition is
hereby added to Section 3(d):
“Separation from Service shall
have the meaning set forth in Section 409A of the
Code.”
4. The following sentence is added
to the end of Section 3(f):
“Any escrowed amounts that are
released shall otherwise be paid as required under this Agreement
and, in no case, later than the end of the calendar year in which
the Company
and Employee enter into a legally
binding settlement of such dispute, the Company concedes the amount
is payable, or the Company is required to make such payment
pursuant to a final and nonappealable judgment or other binding
decision.”
5. Section 4(a) is hereby
amended in its entirety to read:
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“(a)
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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 following Employee’s Separation from
Service:”
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6. The references in
Section 4(a)(i) and (ii) to the phrase “five
(5) business days following the date of termination” are
hereby amended in their entirety to read:
“five (5) business days
following the Release Deadline”
7. The following sentence is added
at the end of Section 4(a)(iii):
“In addition, all conditions
or restrictions of any restricted stock units granted to Employee
shall terminate, and the stock underlying such units shall be
transferred to Employee within five (5) business following the
Release Deadline.”
8. Section 4(a)(iv) is hereby
amended in its entirety to read:
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“(iv)
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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
his or her Separation from Service; provided, however, that after
the date of his or her Separation from Service, Employee
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