Exhibit 4
THIRD AMENDMENT
TO
RIGHTS AGREEMENT
THIRD AMENDMENT TO RIGHTS AGREEMENT (this "Amendment"), dated
as of November 16, 2001 by and among Varian Medical Systems, Inc., a Delaware
corporation (the "Company"), and First Chicago Trust Company of New York as
Rights Agreement and EquiServe Trust Company, N.A. ("EquiServe") as Successor
Rights Agent.
W I T N E S S E T H:
WHEREAS, the Company and First Chicago Trust Company of New
York entered into a Rights Agreement, dated as of November 20, 1998 and amended
effective April 2, 1999 and August 17, 2001 (the "Rights Agreement"), under
which First Chicago, or its successors pursuant to Section 4.2 of the Rights
Agreement, was appointed the Rights Agent;
WHEREAS, the Board of Directors of the Company, pursuant to
Section 5.4 of the Rights Agreement, deems it appropriate to further amend the
Rights Agreement to revise Section 4.2 of the Rights Agreement captioned "Change
of Rights Agent".
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Amendment of Rights Agreement. Effective as of
November 16, 2001 the Rights Agreement shall be, and hereby is, amended as
follows:
(a) Section 4.4 is hereby amended to read in its entirety as follows:
Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon 90 days' notice in writing mailed to the Company and to each transfer agent
of the Common Shares or Preferred Shares by registered or certified mail, and to
the holders of the Right Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent, as the case may be, upon
30 days notice in writing mailed to the Rights Agent or any successor Rights
Agent and to each transfer agent of the Common Shares or Preferred Shares by
registered or certified mail, and to the holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Rights Agent. If the Company shall fail to make such appointment within a
period of 30 days after giving
notice of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent or by
the holder of a Right Certificate (who shall, with such notice, submit such
holder's Right Certificate for inspection by the Company), then the registered
holder of any Right Certificate may apply to any court of competent jurisdiction
for the appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a corporation or trust
company organized and doing business under the laws of the United States, in
good standing, which is authorized under such laws to exercise corporate trust
or stock transfer powers, and is subject to supervision or examination by
federal or state authority and which has individually or combined with an
affiliate at the time of its appointment as Rights Agent a combined capital and
surplus of at least $100 million dollars. After appointment, the successor
Rights Agent will be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any such appointment the
Company shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Shares or Preferred Shares, and mail a
notice thereof in writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 4.4, however, or any
defect therein, shall not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor Rights Agent, as
the case may be.
(b) Each reference in the Rights Agreement to "this
Agreement," and each use in the Rights Agreement of terms such as "herein,"
"hereof" and "hereunder," shall mean and be a reference to the Rights Agreement
as amended hereby.
Section 2. Full Force and Effect. Except as specifically
provided in this Amendment, the Rights Agreement shall remain in full force and
effect and shall in no way be amended, modified or affected.
Section 3. Governing Law. The Rights Agreement and this
Amendment shall be deemed to be contracts made under the laws of the State of
Delaware and for all purposes shall be governed by and construed and enforced in
accordance with the laws of such state applicable to contracts to be made and
performed entirely within such state.
Section 4. Definitions. Terms used in this Amendment and not
defined herein shall have the meanings assigned to such terms by the Rights
Agreement.
Section 5. Severability. If any term or provision of this
Amendment or the application thereof to any circumstance shall, in any
jurisdiction and to any extent, be invalid or unenforceable, such term or
provision shall be ineffective as to such jurisdiction to the extent of such
invalidity or unenforceability without invalidation or rendering unenforceable
the remaining terms and provisions of this Amendment or the application of such
term or provision to circumstances other than those as to which it is held
invalid or unenforceable.
Section 6. Counterparts. This Amendment may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by officers thereof thereunto duly authorized, all
as of the day and year first above written.
VARIAN MEDICAL SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President, Administration,
General Counsel and Secretary
EQUISERVE TRUST, N.A.
By: /s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Chief Marketing Officer
FIRST CHICAGO TRUST COMPANY OF
NEW YORK
By: /s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Chief Marketing Officer
