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Exhibit 3
SECOND AMENDMENT
TO
RIGHTS AGREEMENT
SECOND AMENDMENT TO RIGHTS AGREEMENT (this "Amendment"), dated as of
November 3, 1995, by and among Varian Associates, Inc., a Delaware corporation
(the "Company"), The First National Bank of Boston, a national banking
association ("Bank of Boston"), and First Chicago Trust Company of New York, a
New York trust company ("First Chicago").
W I T N E S S E T H:
WHEREAS, the Company and Bank of Boston entered into a Rights
Agreement, dated as of August 25, 1986, as amended by the First Amendment to
Rights Agreement, dated as of June 29, 1989 (as so amended, the "Rights
Agreement"), under which Bank of Boston is the Rights Agent (the "Rights
Agent");
WHEREAS, the Board of Directors of the Company deems it desirable to
amend the Rights Agreement pursuant to the provisions of Section 26 of the
Rights Agreement to appoint First Chicago as successor Rights Agent to Bank of
Boston under the Rights Agreement, all upon the terms and subject to the
conditions hereinafter set forth; and
WHEREAS, the Board of Directors of the Company deems it desirable to
further amend the Rights Agreement to reflect adjustments made under the Rights
Agreement in connection with the two-for-one split of the Company's Common Stock
effected on March 17, 1994 in the form of a 100% stock dividend;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Resignation of Rights Agent. Bank of Boston hereby
resigns as Rights Agent under the Rights Agreement, effective as of 5:00 p.m.,
P.S.T., on November 3, 1995, and the Company hereby accepts such resignation.
Section 2. Appointment of Successor Rights Agent. The Company hereby
appoints First Chicago as successor Rights Agent under the Rights Agreement,
effective as of 5:00 p.m., P.S.T., on November 3, 1995, and First Chicago hereby
accepts such appointment.
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Section 3. Amendment of Rights Agreement. Concurrently with the
effectiveness of the appointment of First Chicago as successor Rights Agent, the
Rights Agreement shall be, and hereby is, amended as follows:
(a) The first paragraph of page one of the Rights Agreement is
hereby amended by deleting the name "The First National Bank of Boston, a
national banking association" and substituting in lieu thereof the name "First
Chicago Trust Company of New York, a New York trust company."
(b) Section 1(e) is hereby amended by deleting the words "the
Commonwealth of Massachusetts" and substituting in lieu thereof the words "New
York City."
(c) Section 1(f) is hereby amended by deleting the word "Boston" in
the places it appears and substituting in lieu thereof the words "New York
City."
(d) Section 3(c) of the Rights Agreement is hereby amended by
deleting from the legend set forth therein the words ", as amended by the First
Amendment To Rights Agreement, dated as of , 1989 (as amended, the
"Rights Agreement")," by adding the words "(the "Rights Agreement")" immediately
after "1986" and by adding the following to the end of the legend "The Rights
Agreement was amended on June 29, 1989 by the First Amendment to Rights
Agreement, between Varian Associates, Inc. and the Rights Agent, and was further
amended on November 3, 1995 by the Second Amendment to Rights Agreement, by and
among Varian Associates, Inc., The First National Bank of Boston and First
Chicago Trust Company of New York ("First Chicago"), to provide for the
succession of First Chicago as the sole Rights Agent."; provided, however, that
existing certificates for Common Stock of the Company bearing the legend set
forth in Section 3(c) of the Rights Agreement prior to the effectiveness of the
foregoing amendment which have not been issued may be issued by the Company with
the same effect as if the so amended legend was set forth thereon at the date of
issue.
(e) Sections 4 and 14 of the Rights Agreement are hereby amended by
deleting the words "integral multiples of one-hundredth of a share" where they
appear therein and substituting in lieu thereof the words "integral multiples of
one two-hundredth of a share."
(f) Section 5(b) is hereby amended by deleting the words "Boston,
Massachusetts" and substituting in lieu thereof the words "New York, New York."
(g) Section 7(b) is hereby amended by deleting the first sentence of
such Section and substituting in lieu thereof the following sentence: "The
Exercise Price of $62.50 shall initially be for each one two-hundredth (1/200)
of a share of Preferred Stock issued pursuant to the exercise of a Right."
(h) Section 14 is hereby amended by deleting from the first sentence
thereof the words "one one-hundredth of a share" and substituting in lieu
thereof the words "one two-hundredth of a share."
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(i) Section 21 is hereby amended by adding to the sixth sentence "or
a trust company" after "corporation" and by adding immediately after the last
word of such sentence the following words "or is a wholly-owned subsidiary of
a corporation with a combined capital and surplus of at least $50,000,000."
(j) Section 25 is hereby amended by deleting the following:
The First National Bank
of Boston
00 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Shareholder Services Division
and substitute in lieu thereof the following:
First Chicago Trust Company of New York
000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Tenders and Exchanges
(k) Exhibit B to the Rights Agreement is hereby amended by deleting
the first sentence under the legend on page 1 of such Exhibit and substituting
in lieu thereof the following:
This certifies that , or registered
assigns, is the registered owner of the number of Rights set forth
above, each of which entitles the owner thereof, subject to the
terms, provisions and conditions of the Rights Agreement, dated as
of August 25, 1986, as amended by the First Amendment to Rights
Agreement, dated as of June 29, 1989, and by the Second Amendment to
Rights Agreement, dated as of November 3, 1995 (as amended, the
"Rights Agreement"), between Varian Associates, Inc., a Delaware
corporation (the "Company"), and First Chicago Trust Company of New
York, a New York trust company (the "Rights Agent"), to purchase
from the Company at any time after the Distribution Date (as such
term is defined in the Rights Agreement) and prior to 5:00 P.M. New
York City time on August 25, 1996 at the office of the Rights Agent,
or its successors as Rights Agent, designated for such purpose one
two-hundredth (1/200) of a fully paid nonassessable share of the
Series A Junior Participating Preferred Stock ("Preferred Stock") of
the Company at the price of $62.50, as the same may from time to
time be adjusted in accordance with the Rights Agreement (the
"Exercise Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Exercise fully executed.
(l) Exhibit B to the Rights Agreement is further amended by deleting
the words "THE FIRST NATIONAL BANK OF BOSTON" from the signature block on page 5
and
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substituting in lieu thereof the words "FIRST CHICAGO TRUST COMPANY OF NEW
YORK."
(m) Exhibit B to the Rights Agreement is further amended by deleting
the words "(as such terms are defined in the Rights Agreement between Varian
Associates, Inc. and The First National Bank of Boston, dated as of August 25,
1986, as amended by First Amendment to Rights Agreement, dated as of
, 1989)" each time they appear on pages 7, 9 and 10 and substituting in lieu
thereof the words "(as such terms are defined in the Rights Agreement, dated as
of August 25, 1986, as amended by the First Amendment to Rights Agreement, dated
as of June 29, 1989, and by the Second Amendment to Rights Agreement, dated as
of November 3, 1995, between Varian Associates, Inc. and First Chicago Trust
Company of New York)."
(n) 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 4. Representation and Warranty of First Chicago. First
Chicago hereby represents and warrants to the Company that First Chicago meets
each of the minimum requirements for successor Rights Agents set forth in
Section 21 of the Rights Agreement, as amended by this Amendment.
Section 5. 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 6. 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 7. Definitions. Terms used in this Amendment and not defined
herein shall have the meanings assigned to such terms by the Rights Agreement.
Section 8. Severability. If any term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment, and of the
Rights Agreement, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 9. 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.
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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 ASSOCIATES, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President, General
Counsel and Secretary
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ XXXXXXXX X. XXXXXXXX
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Senior Account Manager
FIRST CHICAGO TRUST COMPANY OF NEW YORK,
as Rights Agent
By: /s/ XXXXXX X. FERRARI
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Name: Xxxxxx X. Ferrari
Title: Vice President
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