**Exhibit 10.5**

 

**FORM OF**

**AMENDED AND RESTATED INDEMNITY AGREEMENT**

 

This Amended and Restated Indemnity Agreement (this “Agreement”) is made and entered into as of this 11th day of November, 2004, 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 apublicly-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; 

 

WHEREAS, the uncertainties in the interpretations of the statutes andregulations, 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 exposeddifficult, particularly in light of the proliferation of lawsuits against directors and officers; 

 

WHEREAS, the Board of Directors of the Company, based upon its business experience, has concluded that the continuation of present trends in litigationagainst 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 ofthe 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 shouldact 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, saiddirectors 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 directorsand 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 andactions as directors or officers; 

 

WHEREAS, Section 145 of theGeneral 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 thecorporation 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 bedeemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise”, and further empowers a corporationto “purchase and maintain insurance” (on behalf of such persons) “against any liability 

asserted against such person and incurred by such person in any such capacity, or arising out of such person’sstatus as such, whether or not the corporation would have the power to indemnify such person against such liability under the provisions of” (said laws); 

 

WHEREAS, the Company has investigated the type of insurance available to insure the directors and officers of the Company and of its affiliates againstexpenses (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 byreason 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 reasonablyavailable; 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 suchexclusions), 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; 

 

WHEREAS, the Company desires to have Indemnitee serve or continue to serve asa 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 orunreasonable 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’sdecisions or actions on their behalf; 

 

WHEREAS, Indemnitee iswilling to serve, or to continue to serve, or to take on additional service for, the Company and/or the Affiliates of the Company in such aforesaid capacities on the condition that Indemnitee be indemnified as provided for herein; and 

 

WHEREAS, Indemnitee and the Company previously entered into an IndemnityAgreement (the “Prior Agreement”), and Indemnitee and the Company now wish to amend and restate the Prior Agreement in its entirety and believe that such an amendment and restatement of the Prior Agreement is in the best interest of theCompany and its stockholders; 

 

NOW, THEREFORE, in considerationof the premises and the covenants contained herein, the Company and Indemnitee do hereby amend and restate the Prior Agreement in its entirety and covenant and agree as follows: 

 

**1. Services to the Company.**Indemnitee will serve and/or continue to serve, at the will of the Company orunder 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 ofIndemnitee’s ability so long as Indemnitee is 

 

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duly elected and qualified in accordance with the provisions of the Bylaws or other applicable constitutive documentsthereof; 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 norany Affiliate of the Company 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 asin 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, proceeding or alternative dispute mechanism, whether civil, criminal,administrative or investigative in nature (each, a “Claim”), 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 ofthe Company or is or was serving at the request of the Company as a director, officer, employee, trustee, partner, agent or fiduciary of another corporation, partnership, joint venture, trust or other enterprise, or by reason of anything done or notdone by Indemnitee in any such capacity, against expenses (including attorneys’ fees), costs (including court costs), losses, claims, liabilities, damages, judgments, penalties, fines and amounts paid in settlement, as well as any federal,state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of payments under this Agreement, including all interest, assessments and other charges paid or payable in connection with or in respect of such expenses(collectively, “Expenses”) actually and reasonably incurred by Indemnitee in connection with such Claim (including, but not limited to, the investigation, defense or appeal thereof) if Indemnitee acted in good faith and in a mannerIndemnitee 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 tobe made a party to any threatened, pending or completed Claim 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 fiduciaryof 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 actually and reasonably incurred by Indemnitee in connection with such Claim (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 bemade 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 Courtof Chancery of the State of Delaware or the court in which such Claim 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 reasonablyentitled to indemnity for such Expenses as such court shall 

 

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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 beensuccessful on the merits or otherwise in defense of any Claim referred to in subsections (a) or (b) of this Section 2, or in the defense of any claim, issue or matter described therein, the Company shall indemnify Indemnitee against Expensesactually and reasonably incurred by Indemnitee in connection therewith (including, but not limited to, the preparation, service, investigation, defense or appeal of such Claim). 

 

(d) Notwithstanding anything to the contrary in the foregoing provisions of Section 2 or Section 6 hereof, Indemnitee shallnot be entitled, as a matter of right, to indemnification or advancement of Expenses pursuant to this Agreement (i) for any Expenses incurred in connection with any Claim commenced by Indemnitee against the Company or any person who is or was adirector 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 (except with respect to Claims brought to establish orenforce a right to indemnification under this Agreement or any other statute or law or otherwise as required under Section 145 of the Delaware General Corporaton Law), but such indemnification may be provided by the Company in a specific case ascontemplated by Section 7(a) 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 Claim against the Company, any Securities Act Affiliate, any Affiliate ofthe 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 7(a) hereof. 

 

**3. Partial Indemnification.** If Indemnitee is only partiallysuccessful in the defense, investigation, settlement or appeal of any Claim described in Section 2 hereof and therefore not entitled hereunder to indemnification by the Company for the total amount of the Expenses actually and reasonably incurred byIndemnitee, the Company shall nevertheless indemnify Indemnitee to the extent Indemnitee has been partially successful. 

 

**4.****Contribution****.**If the indemnification provided in Section 2 hereof is unavailable on grounds other than any of those setforth in Section 2(d)(i) and (ii) hereof, then in respect of any threatened, pending or completed Claim in which the Company is jointly liable with Indemnitee (or would be if joined in such Claim), the Company shall contribute to the amount ofExpenses paid or payable by Indemnitee in such proportion as is appropriate to reflect (i) the relative benefits received by the Company on the one hand and Indemnitee on the other hand from the transaction from which such Claim arose, and (ii) therelative fault of the Company on the one hand and of Indemnitee on the other in connection with the events which resulted in such Expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand andof Indemnitee on the other shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. The Companyand Indemnitee agree that it would not be just and equitable if 

 

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contribution pursuant to this Section 4 were determined by pro rata allocation or any other method of allocation thatdoes not take account of the foregoing equitable considerations. 

 

**5. 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 applicablestandard 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 thestockholders. 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 reasonablyavailable to Indemnitee and material to such determination.Any Expenses actually and reasonably incurred by Indemnitee in so cooperating with the Company shall be borne by the Company and the Company hereby indemnifies and agrees to hold Indemniteeharmless therefrom irrespective of the outcome of the determination as to Indemnitee’s satisfaction of the applicable standard of conduct set forth in Section 2 hereof. 

 

(b) The termination of any Claim described in Section 2 hereof by judgment, order, settlement or conviction, or upon a pleaof *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 thebest 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 5(a) hereof as to whether or not Indemnitee satisfied the applicablestandard 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 tothe contrary and, in 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 tosuch presumption. 

 

(d) For purposes of this Agreement:

 

(i) “Disinterested Director” with respect to anyrequest 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 Claim in respect of which indemnification is being sought by Indemnitee. 

 

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(ii) “Independent Counsel” shall mean a law firm or a member of a law firm that neither is norin 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 Claim giving rise to a claim for indemnification hereunder and which, under applicablestandards 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 isreasonably 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 Claim or be asserting any claim against Indemnitee solelyby 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 Claim or before which it is being prosecutedor 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 andhaving a rating of “av” or better in the then current Martindale-Hubbell 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 theirselection 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 anydetermination 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 mattersas may be reasonably requested by counsel. 

 

(e) In the eventthat a determination shall be made pursuant to (i) Section 5(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 theapplicable standard set forth in Section 2 hereof, or (ii) Section 6 hereof not to pay Indemnitee’s Expenses, or in the event such determination is not made, Indemnitee shall be entitled, at Indemnitee’s option, to a final judicialdetermination 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 5(b) and (c) hereof to the making of suchdetermination) or Indemnitee’s entitlement to such payment of Expenses in advance pursuant to Section 6 hereof. In the event Indemnitee seeks a judicial determination, Indemnitee may initially seek such determination by commencing anappropriate 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 AmericanArbitration Association and any such determination shall be made within 60 days 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 theentitlement of Indemnitee to indemnification hereunder any prior determination made pursuant to this Agreement of Indemnitee’s right to indemnification under this Agreement or payment of Expenses in advance on such Claim or any other Claim, andfor all purposes of this Agreement any such judicial determination or determination in arbitration shall be made *de novo* and without prejudice by reason 

 

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of any such prior determination. The Company further agrees to stipulate to any court or arbitrator in which such actionor 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 5(c)hereof. If the court or arbitrator shall determine that Indemnitee is entitled to indemnification or payment of Expenses in advance hereunder as to Expenses for any Claim in respect of which indemnification is sought hereunder, the Company shall payall Expenses actually and reasonably 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 Indemniteeis not entitled to indemnification, is entitled only to partial indemnification or is entitled only to contribution, Indemnitee agrees to reimburse the Company for all E paid in advance hereunder, or the proper proportion thereof, as the case maybe, 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 5(e) and 6 hereof, (ii) cooperating with the Company in makingits determination, as set forth in Section 5(a) hereof, or (iii) obtaining the opinion of Independent Counsel pursuant to Section 5(a) hereof. 

 

**6. Advancement of Expenses and Costs.** All reasonable Expenses actually and reasonably incurred by Indemnitee in preparing to serve orserving as a witness or in investigating, defending, or appealing any threatened, pending or completed Claim described in Section 2 hereof and not excluded by Section 2(d)(i) or (ii) hereof, or in connection with a judicial determination ordetermination in arbitration pursuant to Sections 5(e) or 6 hereof, shall be paid by the Company (in advance of the final disposition of such Claim) at the request of Indemnitee within 20 days after the receipt by the Company from the Indemnitee ofa statement reasonably evidencing the Expenses incurred by Indemnitee in connection therewith, and confirming that such Expenses do not relate to matters described in Section 2(d)(i) or (ii) hereof, together with a written undertaking by or onbehalf of Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified against such Expenses by the Company as provided by this Agreement, the Company’s Certificate of Incorporation orBy-Laws, applicable law or otherwise. In the event the Board of Directors determines not to so pay Indemnitee’s Expenses, Indemnitee shall be entitled, at Indemnitee’s option, to a judicial determination or determination in arbitration ofIndemnitee’s right to such payment of Expenses in advance as set forth in Section 5(e) hereof. 

 

**7. Other Rights to Indemnification.**

 

(a) The indemnification and payment of Expenses in advance provided by this Agreement shall not be deemed exclusive of any other rights to whichIndemnitee 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 inIndemnitee’s official capacity or in another capacity while occupying any of the positions or having any of the relationships referred to in Section 2 hereof. 

 

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(b) In the event of any changes, after the date of the Agreement, in any applicable law, statute, or rulewhich expands the right of a Delaware corporation to indemnify a member of its board of directors or any officer, such changes shall be, *ipso facto*, within the purview of Indemnitee’s rights and the Company’s obligations under thisAgreement. In the event of any change in any applicable law, statute, or rule which narrows the right of a Delaware corporation to indemnify a member of its board of directors or any officer, such changes, to the extent not otherwise required bysuch law, statute or rule to be applied to this Agreement shall have no effect on this Agreement or the parties’ rights and obligations hereunder. 

 

**8. Change in Control of the Company.**

 

(a) In the event of a Change in Control (as defined below), Indemnitee shall stand in the same position under this Agreement with respect to the resultingor surviving corporation as Indemnitee would have with respect to the Company if the Company’s separate existence had continued. 

 

(b) In addition to any other provision of this Agreement, the Company hereby covenants and agrees that it will not consummate a Change in Control unlessthe 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 datehereof, or the closest practicable equivalent thereto, (ii) shall indemnify Indemnitee, except in the circumstances set forth in Section 2(d)(i) and (ii) hereof in the manner and to the extent set forth in Section 2 hereof, and (iii) shall pay,except in the circumstances set forth in Section 2(d)(i) and (ii) hereof all reasonable Expenses in the manner and to the same extent as set forth in Section 6 hereof, and (iv) shall maintain irrevocable standby letters of credit in the aggregateamount of $5 million for all directors and officers. 

 

(c) Forpurposes of this Agreement, references to “Change in Control” shall mean an event in which (i) any individual or group constituting a “person”, as such term is used in Sections l3(d) and l4(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, ofsecurities 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 theelection of directors; or (ii) Continuing Directors (as defined below) 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 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 othercorporation 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 occurred underthis Agreement if, prior to the occurrence of a 

 

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specified event that would otherwise constitute a Change in Control hereunder, the disinterested Continuing Directorsthen 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 Indemnitee hereunder if the Change in Control results from actions or events in whichIndemnitee is a participant in a capacity other than solely as an officer, employee or director of the Company. “Continuing Directors” shall mean the directors of the Company in office on the date hereof and any successor to any suchdirector 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 12Bunder 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 tovote for the election of directors. 

 

**9. 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 recoverdamages for breach of, this Agreement (other than an action referred to in Section 5(e) hereof), Indemnitee shall be entitled to be paid all Expenses actually and reasonably incurred by Indemnitee. 

 

**10. 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 Claims. 

 

(b) This Agreement shall be binding upon the Company and its successors and assigns, including any direct or indirectsuccessor pursuant to a Change in Control, and shall inure to the benefit of Indemnitee and Indemnitee’s spouse, heirs, devisees, executors and administrators. 

 

**11. Severability.** If any provision or provisions of this Agreement shall be held to be invalid, illegal orunenforceable 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 heldto 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, withoutlimitation, 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 intentmanifested by the provision held invalid, illegal or unenforceable. 

 

**12. Identical Counterparts.**This Agreement may be executed in 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 

 

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against whom enforceability is sought needs to be produced to evidence the existence of this Agreement. 

 

**13. Headings.** The headings of the paragraphs of this Agreementare inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. 

 

**14. Use of Certain Terms.**As used in this Agreement, the words “herein,” “hereof,” and “hereunder” and otherwords 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 onIndemnitee 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 imposesduties 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 theparticipants 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. 

 

**15. Modification and Waiver.** No supplement, modification oramendment 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 notsimilar) nor shall such waiver constitute a continuing waiver. 

 

**16. 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 whichmaybe subject to indemnification covered hereunder, either civil, criminal or investigative. 

 

**17. 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 towhom 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, to the address indicated on the signature page hereof; 
 
 (b)If to the Company to: 
 

Varian, Inc. 

3120 Hansen Way 

Palo Alto, CA 94304-1030 

Attn: VicePresident and General Counsel 

 

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or to such other address as either may subsequently furnish to the other in writing. 

 

**18.****No Construction as Employment Agreement****.**Nothing contained in this Agreement shall be construed as giving Indemnitee any right to be retained in the employ of the Company or any Affiliate of the Company. 

 

**19. Prior Indemnity Agreement.** This Agreement amends and restates in its entirety the Prior Agreement.

 

**20. Governing Law.**The parties hereto agree thatthis 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. 

 

**21. Subrogation.**In the event of any payment under this Agreement, the Company shall be subrogated to theextent 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 suchrights. 

 

IN WITNESS WHEREOF, the parties have executed thisAgreement on the day and year first above written. 

 

VARIAN, INC.
 
INDEMNITEE

By:
 
Name:

Title:
 
Address:

 

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