AMENDMENT NO. 3
TO
RIGHTS AGREEMENT
THIS AMENDMENT (this "Amendment") to the
Rights Agreement (as defined below) is made and
entered into as of the 1st day of August, 1999, by
and between VARLEN CORPORATION, a Delaware
corporation (the "Company"), and XXXXXX TRUST AND
SAVINGS BANK (the "Rights Agent").
RECITALS:
WHEREAS, the parties hereto previously entered
into a Rights Agreement, dated as of June 17, 1996,
between the Company and the Rights Agent; and
WHEREAS, each of the Company and the Rights
Agent desire to amend the Rights Agreement as set
forth below.
NOW, THEREFORE, the undersigned, in
consideration of the premises, covenants and
agreements contained herein and in the Rights
Agreement, and other good, sufficient and
valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, do hereby agree
as follows:
1. Amendment of Section 1.
Section 1 of the Rights Agreement is
amended by adding thereto two new definitions
immediately after the definition of "Trading Day",
which new definitions shall read as follows:
(ff) "Merger Agreement" shall mean
the Agreement and Plan of Merger,
dated as of August 1, 1999, by
and among the Company, Amsted
Industries Incorporated, and
Track Acquisition Incorporated,
as the same may be amended from
time to time.
(gg) "Transaction Documents" shall mean
the Merger Agreement and any
documents incorporated by reference into
the Merger Agreement, as said Transaction
Documents or any thereof may
be amended from time to time."
2. Amendment of Section 7.
Section 7(a) of the Rights Agreement is
amended by amending the definition of "Expiration
Date" by deleting the word "or" immediately preceding
clause (iii) thereof and by adding the following new
phrase immediately following clause (iii) thereof:
"or (iv) immediately prior to the Effective Time (as
defined in the Merger Agreement)."
3. Addition of New Section 35.
The Rights Agreement is amended by adding a
Section 35 thereof which shall read as follows:
"Section 35. Exception For Merger Agreement.
Notwithstanding any provision
of this Agreement to the contrary,
(i) neither a Distribution Date, Flip-In
Event, Flip-Over Event nor a Stock
Acquisition Date shall be deemed to have
occurred, (ii) neither Amsted Industries
Incorporated or Track Acquisition Incorporated
nor any of their affiliates shall be deemed
to have become an Acquiring Person,
and no holder of any Rights shall be
entitled to exercise such Rights under,
or be entitled to any rights pursuant to,
any of Sections 3(a), 7(a), 11(a) or
13 of this Agreement, in any such case
solely by reason of (a) the approval,
execution or delivery of the Transaction
Documents or any amendments
thereof, or (b) the performance or
consummation of any of the transactions
contemplated by the Transaction Documents
in accordance with the provisions of the
Transaction Documents, including the Merger
(as defined in the Merger Agreement)."
4. Effectiveness. This Amendment shall
be deemed effective as of, and immediately prior
to, the execution and delivery of the Merger
Agreement, and all references to the Rights
Agreement shall, from and after such time, be deemed
to be references to the Rights Agreement as hereby
amended.
5. Execution in Counterparts. This
Amendment may be executed in counterparts, each
of which shall be deemed an original, but all
of which shall constitute one and the same
instrument.
6. Rights Agreement in Effect. Except as
hereby amended, the Rights Agreement shall remain in
full force and effect.
7. Governing Law. This Amendment shall be
governed by, and interpreted in accordance with,
the laws of the State of Delaware, without regard
to principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be duly executed as of the
day and year first-above written.
VARLEN CORPORATION
By: /s/Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President and Chief
Executive Officer
XXXXXX TRUST AND SAVINGS BANK
By:/s/Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
