Form of Registrant's Grant Agreement for Deferred Stock Units



 Exhibit 10.28 
 VARIAN MEDICAL SYSTEMS, INC. 
 Grant Agreement – Deferred Stock Units 

GRANT AGREEMENT made as of
                    , 20     (the “Grant Date”) between Varian Medical Systems, Inc., a Delaware
corporation (the “Company”), and                      (the “Director”). 
 1.    Grant of Deferred Stock Deferred Stock Units. The Company hereby grants to the Director
             Deferred Stock Units. Each Deferred Stock Unit shall be deemed to be the equivalent of one Share. 
 2.    Subject to the Plan. The Agreement is subject to, and governed by, the provisions of the Varian Medical Systems,
Inc. Second Amended and Restated 2005 Omnibus Stock Plan (the “Plan”) and, unless the context requires otherwise, terms used herein shall have the same meaning as in the Plan. In the event of a conflict between the provisions of the Plan
and this Agreement, the Plan shall control. 
 3.    Account. The Company shall credit to a bookkeeping
account (the “Account”) maintained by the Company for the Director’s benefit the Deferred Stock Units. On each date that cash dividends are paid on the Shares, the Company will credit the Account with a number of additional Deferred
Stock Units equal to the result of dividing (i) the product of the total number of Deferred Stock Units credited to the Account on the record date for such dividend and the per Share amount of such dividend by (ii) the Fair Market Value of
one Share on the date such dividend is paid by the Company to shareholders. The additional Deferred Stock Units shall be or become vested to the same extent as the Deferred Stock Units that resulted in the crediting of such additional Deferred Stock
Units. 
 4.    Vesting. All of the Deferred Stock Units shall initially be unvested. During the 12-month
period following the Grant Date, 25% of the Deferred Stock Units shall become vested as of the end of each 3-month period following the Grant Date, provided the Director has continued on the Board until the end of such 3-month period. All of
the Deferred Stock Units credited to the Account shall become fully vested upon the occurrence of a Change in Control (as defined in Appendix A) or the Director’s death, provided the Director is then serving on the Board. 
 5.    Termination of Service. In the event of the Director’s Termination of Service, other than as a result of
death, Disability or Retirement, the Deferred Stock Units credited to the Account that were not vested on the date of such Termination of Service shall be immediately forfeited. In the event of the Director’s death, Disability or Retirement
while serving on the Board, all of the Deferred Stock Units credited to the Account shall become fully vested. For purposes of this Agreement, “Termination of Service” shall mean “separation from service” as 








 
that term is defined in Section 409A of the Code and the applicable guidance issued by the Secretary of the Treasury thereunder. 
 6.    Forfeiture upon Engaging in Detrimental Activities. If, at any time within one (1) year after the
Director’s Termination of Service for any reason, the Director engages in any activity in competition with any activity of the Company, or inimical, contrary or harmful to the interests of the Company, including, but not limited to:
(i) conduct related to the Director’s service on the Board for which either criminal or civil penalties against the Director may be sought, (ii) violation of the Company’s policies, or (iii) disclosure or misuse of any
confidential information or material concerning the Company, then (A) the Deferred Stock Units shall be forfeited effective as of the date on which the Director enters into such activity, and (B) the Director shall within ten
(10) days after written notice from the Company return to the Company the Shares paid by the Company to the Director with respect to the Deferred Stock Units and, if the Director has previously sold all or a portion of the Shares paid to the
Director by the Company, the Director shall pay the proceeds of such sale to the Company. 
 7.    Payment
of Deferred Stock Units. The Company shall make a payment to the Director of the vested Deferred Stock Units credited to the Account as provided in Section 8 upon the earliest of (i) the Director’s Termination of Service for
any reason, (ii) the third anniversary of the Grant Date, (iii) a Change in Control, or (iv) the Director’s death (in accordance with the provisions of Section 9); provided that if payment is made pursuant to
Section 7(i) and the Director is deemed at the time of such Termination of Service to be a “specified” employee under Section 409A of the Code, then payment shall not be made or commence until the earliest of (i) the
expiration of the six (6)-month period measured from the date of Director’s Termination of Service; or (ii) the date of Director’s death following such Termination of Service; provided, however, that such deferral shall only be
effected to the extent required to avoid adverse tax treatment to Director, including (without limitation) the additional twenty percent (20%) tax for which Director would otherwise be liable under Section 409A(a)(1)(B) of the Code in the
absence of such deferral. 
 8.    Form of Payment. Payments pursuant to Section 7 shall be made in
Shares equal to the number of vested Deferred Stock Units credited to the Account. Payment shall be made as soon as practicable after the applicable payment date, but in no event later than 30 days after the date established pursuant to Section
7. 
 9.    Beneficiary. In the event of the Director’s death prior to payment of the
Deferred Stock Units credited to the Account, payment shall be made to the last beneficiary designated in writing that is received by the Company prior to the Director’s death or, if no designated beneficiary survives the Director, such payment
shall be made to the Director’s estate. 
 10.    Source of Payments. The Director’s right
to receive payment under this Agreement shall be an unfunded entitlement and shall be an unsecured claim against the general assets of the Company. The Director has only the status of a general unsecured creditor hereunder, and this Agreement
constitutes only a promise by the Company to pay the value of the Account on the payment date. 
  

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 11.    Nontransferability. Except as otherwise permitted
under the Plan, this Agreement shall not be assignable or transferable by the Director or by the Company (other than to successors of the Company) and no amounts payable under this Agreement, or any rights therein, shall be subject in any manner to
any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, levy, lien, attachment, garnishment, debt or other charge or disposition of any kind. 
 12.    Notices. All notices required or permitted under this Agreement shall be in writing and shall be delivered
personally or by mailing the same by registered or certified mail postage prepaid, to the other party. Notice given by mail shall be deemed delivered at the time and on the date the same is postmarked. 
 Notices to the Company should be addressed to: 
 Varian Medical Systems, Inc. 
 3100 Hansen Way 
 Palo Alto, California 94304 
 Attention: General Counsel 
 Notices to the Director should be addressed to the Director at the Director’s address as it appears on the Company’s records. The Company or
the Director may by writing to the other party, designate a different address for notices. 
 13.    Successors and
Assigns. This Agreement shall inure to the benefit of and be binding upon the heirs, legatees, distributees, executors and administrators of the Director and the successors and assigns of the Company. 
 14.    Governing Law. This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of
Delaware, other than its conflict of laws principles. 
 15.    Entire Agreement;
Modification. This Agreement and the Plan constitute the entire agreement between the parties relative to the subject matter hereof, and supersede all proposals, written or oral, and all other communications between the parties
relating to the subject matter of this Agreement. This Agreement may be modified, amended or rescinded only by a written agreement executed by both parties. 
 16.    Compliance with Section 409A of the Code. This Agreement is intended to comply and shall be administered in a manner that is intended to comply with section
409A of the Code and shall be construed and interpreted in accordance with such intent. Payment under this Agreement shall be made in a manner that will comply with section 409A of the Code, including regulations or other guidance issued with
respect thereto, as determined by the Committee. Any provision of this Agreement that would cause the payment or settlement thereof to fail to satisfy section 409A of the Code shall be amended to comply with section 409A of the Code on a timely
basis, which may be made on a retroactive basis, in accordance with regulations 

  

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and other guidance issued under section 409A of the Code. 
 17.    Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall in no way affect the validity, legality or enforceability of any other
provision. 
 IN WITNESS WHEREOF, this Agreement has been executed by the Company and the Director, effective as of the date at
the top of this Agreement. 
  

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 APPENDIX A 
 “Change in Control” means and shall be deemed to have occurred as of the date of the first to occur of the following events: 
 (a)    Any Person or Group (other than a Person or Group who effectively controls the Company within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(vi)) acquires stock of the
Company that, together with stock held by such Person or Group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Company. However, if any Person or Group is considered to own more than 50% of the
total fair market value or total voting power of the stock of the Company, the acquisition of additional stock by the same Person or Group is not considered to cause a Change in Control. An increase in the percentage of stock owned by any Person or
Group as a result of a transaction in which the Company acquires its stock in exchange for property will be treated as an acquisition of stock for purposes of this subsection. This subsection applies only when there is a transfer of stock of the
Company (or issuance of stock of the Company) and stock in the Company remains outstanding after the transaction; 
 (b)    Any Person or Group acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such Person or Group) ownership of stock of the Company possessing 35% or more of the
total voting power of the stock of the Company. However, if any Person or Group is considered to effectively control the Company within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(vi), the acquisition of additional stock by the
same Person or Group is not considered to cause a Change in Control; 
 (c)    A majority of members of the
Company’s Board is replaced during any 12-month period by Directors whose appointment or election is not endorsed by a majority of the members of the Company’s Board prior to the date of the appointment or election; or 
 (d)    Any Person or Group acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by
such Person or Group) assets from the Company that have a total gross fair market value equal to or more than 40% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions. For
this purpose, gross fair market value means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets. However, no Change in Control shall be deemed
to occur under this subsection (d) as a result of a transfer to an entity that is controlled by the shareholders of the Company immediately after the transfer as follows: 
 (i)    A shareholder of the Company (immediately before the asset transfer) in exchange for or with respect to its
stock; 
 (ii)    An entity, 50% or more of the total value or voting power of which is owned, directly
or indirectly, by the Company; 
  

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 (iii)    A Person or Group that owns, directly or indirectly, 50% or
more of the total value or voting power of all the outstanding stock of the Company; or 
 (iv)    An
entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a person described in clause (iii) above. 
 For purposes of clauses (ii), (iii), and (iv) above, a Person’s or a Group’s status is determined immediately after the transfer of assets. 
 For these purposes, the term “Person” shall mean an individual, Company, association, joint stock company, business trust or other similar
organization, partnership, limited liability company, joint venture, trust, unincorporated organization or government or agency, instrumentality or political subdivision thereof or any other person, in each case, to the extent consistent with
Treasury Regulation Section 1.409A-3(i)(5). The term “Group” shall have the meaning set forth in Treasury Regulation Section 1.409A-3(i)(5), or any successor thereto in effect at the time a determination of whether a Change of
Control has occurred is being made. 
  

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