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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-1
(Amendment No. 6)
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
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VARLEN CORPORATION
(Name of Subject Company)
AMSTED INDUSTRIES INCORPORATED
TRACK ACQUISITION INCORPORATED
(Bidders)
COMMON STOCK, PAR VALUE $.10 PER SHARE
(AND ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS)
(Title of Class of Securities)
92224810
(CUSIP Number of Class of Securities)
Thomas C. Berg, Esq.
Track Acquisition Incorporated
c/o Amsted Industries Incorporated
44th Floor--Boulevard Towers South
205 North Michigan Avenue
Chicago, Illinois 60601
(312) 819-8470
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of Bidder)
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Copies to:
Gary A. Goodman, Esq. Robert J. Minkus, Esq.
Terrence R. Brady, Esq. Schiff Hardin & Waite
Winston & Strawn 6600 Sears Tower
35 West Wacker Drive Chicago, Illinois 60606
Chicago, Illinois 60601 Telephone: (312) 258-5500
Telephone: (312) 558-5600
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This Amendment No. 6 (this "Amendment") amends and supplements the Tender
Offer Statement on Schedule 14D-1, as amended, originally filed with the
Securities and Exchange Commission on May 24, 1999 (the "Schedule 14D-1") by
Amsted Industries Incorporated, a Delaware corporation ("Parent"), and Track
Acquisition Incorporated, a Delaware corporation and a wholly owned subsidiary
of Parent (the "Purchaser"). The Schedule 14D-1 and this Amendment relate to a
tender offer by the Purchaser to purchase all outstanding shares of common
stock, par value $.10 per share (the "Common Stock"), of Varlen Corporation, a
Delaware corporation (the "Company"), including the associated preferred share
purchase rights (the "Rights") issued pursuant to the Rights Agreement, dated
as of June 17, 1996, as amended, between the Company and Harris Trust and
Savings Bank, as Rights Agent (the Common Stock and the Rights together are
referred to herein as the "Shares"), at $35.00 per Share, net to the seller in
cash, upon the terms and subject to the conditions set forth in the Offer to
Purchase dated May 24, 1999 and in the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute
the "Offer"), copies of which are filed with the Schedule 14D-1 as Exhibits
(a)(1) and (a)(2), respectively.
2
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Item 10. Additional Information.
Item 10 is hereby amended and supplemented as follows:
1. The supplemental Item 10 disclosure contained in Amendment No. 5 hereto
is amended and restated to read as follows:
On July 6, 1999, Parent issued the press release included herein as
Exhibit (a)(16) and incorporated herein by reference.
2. On July 9, 1999, Parent and the Company entered into a
confidentiality/standstill agreement (the "Confidentiality Agreement")
pursuant to which the Company will provide Parent with access to the Company's
senior management and confidential business information. The Confidentiality
Agreement is filed as Exhibit (a)(17) and is incorporated herein by reference.
Under the provisions of the Confidentiality Agreement, Parent has agreed
that it will not, directly or indirectly, from July 9, 1999 to August 23,
1999, among other things, (a) purchase Shares whether pursuant to the Offer or
otherwise; (b) solicit written consents from the Company's stockholders or
take steps in furtherance thereof by filing preliminary proxy materials with
the SEC, or (c) seek to convene a special meeting of the stockholders of the
Company.
In accordance with the terms of the Confidentiality Agreement,
representatives of Parent may conduct due diligence, including receiving
presentations from representatives of the Company, including the Company's
management and its legal and financial advisors, and receiving access to
certain non-public written information regarding the Company. As part of this
process, Parent, the Company and their respective advisors may discuss and
negotiate the terms of a possible transaction pursuant to which Parent may
acquire the Company; the Company may request Parent to make a formal proposal
for a strategic transaction with the Company; and Parent may make such a
formal proposal pursuant to the Company's request. No assurance can be given
that any discussion or negotiation will result in a request by the Company for
a submission of a proposal or that any such proposal, if made, by Parent would
result in an agreement pursuant to which Parent would acquire the Company.
Item 11. Material to be Filed as Exhibits.
<TABLE>
<C> <S>
(a)(1) Offer to Purchase, dated May 24, 1999.*
(a)(2) Form of Letter of Transmittal.*
(a)(3) Form of letter, dated May 24, 1999, to brokers, dealers,
commercial banks, trust companies and other nominees.*
(a)(4) Form of letter to clients to be used by brokers, dealers,
commercial banks, trust companies and other nominees.*
(a)(5) Press Release, dated May 18, 1999.*
(a)(6) Press Release, dated May 24, 1999.*
(a)(7) Form of summary advertisement, dated May 24, 1999.*
(a)(8) Notice of Guaranteed Delivery.*
(a)(9) IRS Guidelines to Substitute Form W-9.*
(a)(10) Press Release, dated June 7, 1999.*
(a)(11) Form of letter dated June 11, 1999 from Morgan Stanley & Co.
Incorporated to Parent.*
(a)(12) Form of letter dated June 17, 1999 from Arthur W. Goetschel,
Chairman, President and Chief Executive Officer of Parent,
to Raymond A. Jean, President and Chief Executive Officer of
the Company*
(a)(13) Press Release, dated June 18, 1999.*
</TABLE>
3
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<TABLE>
<C> <S>
(a)(14) Press Release, dated June 21, 1999.*
(a)(15) Press Release, dated June 22, 1999.*
(a)(16) Press Release, dated July 6, 1999.*
(a)(17) Confidentiality/Standstill Agreement, dated July 9, 1999,
between Parent and the Company.
(b) Commitment Letter, dated April 29, 1999.*
(c) None.
(d) None.
(e) Not Applicable.
(f) None.
</TABLE>
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*Previously filed.
4
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and
correct.
Dated: July 12, 1999
Amsted Industries Incorporated
/s/ Thomas C. Berg
By: _________________________________
Name: Thomas C. Berg
Title: Vice President, General
Counseland Secretary
Track Acquisition Incorporated
/s/ Thomas C. Berg
By: _________________________________
Name: Thomas C. Berg
Title: Vice President and
Secretary
5
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<C> <S>
(a)(1) Offer to Purchase, dated May 24, 1999.*
(a)(2) Form of Letter of Transmittal.*
(a)(3) Form of letter, dated May 24, 1999, to brokers, dealers, commercial
banks, trust companies and other nominees.*
(a)(4) Form of letter to clients to be used by brokers, dealers, commercial
banks, trust companies and other nominees.*
(a)(5) Press Release, dated May 18, 1999.*
(a)(6) Press Release, dated May 24, 1999.*
(a)(7) Form of summary advertisement, dated May 24, 1999.*
(a)(8) Notice of Guaranteed Delivery.*
(a)(9) IRS Guidelines to Substitute Form W-9.*
(a)(10) Press Release, dated June 7, 1999.*
(a)(11) Form of letter dated June 11, 1999 from Morgan Stanley & Co.
Incorporated to Parent*
(a)(12) Form of letter dated June 17, 1999 from Arthur W. Goetschel,
Chairman, President and Chief Executive Officer of Parent, to
Raymond A. Jean, President and Chief Executive Officer of the
Company*
(a)(13) Press Release, dated June 18, 1999.*
(a)(14) Press Release, dated June 21, 1999.*
(a)(15) Press Release, dated June 22, 1999.*
(a)(16) Press Release, dated July 6, 1999.*
(a)(17) Confidentiality/Standstill Agreement, dated July 9, 1999, between
Parent and the Company.
(b) Commitment Letter, dated April 29, 1999.*
(c) None.
(d) None.
(e) Not Applicable.
(f) None.
</TABLE>
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*Previously filed.
6
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Exhibit (a)(17)
Varlen Corporation
55 Shuman Boulevard
P.O. Box 3089
Naperville, IL 60566-7089
July 9, 1999
Amsted Industries Incorporated
44th Floor - Boulevard Towers South
205 North Michigan Avenue
Chicago, IL 60601
Gentlemen:
1. You have requested information from Varlen Corporation (the
"Company"), in connection with your consideration of a possible transaction
between the Company or its stockholders and you. As a condition to your being
furnished such information, you agree to treat any information (whether prepared
by the Company, its advisors or otherwise, and whether oral or written) that is
furnished to you or your representatives (which term shall include your
directors, officers, partners, employees, agents, advisors and potential
financing sources) by or on behalf of the Company (herein collectively referred
to as the "Evaluation Material") in accordance with the provisions of this
letter and to take or abstain from taking certain other actions herein set
forth. The term "Evaluation Material" also shall include all notes, analyses,
compilations, studies, interpretations or other documents (including electronic,
magnetic or other forms of information storage), which contain, reflect or are
based on, in whole or in part, the information furnished pursuant to this
agreement. The term "Evaluation Material" does not include information that (i)
is already in your possession, provided that such information is not known by
you to be subject to another confidentiality agreement with or other obligation
of secrecy to the Company or another party or (ii) becomes generally available
to the public other than as a result of a disclosure by you or your
representatives or (iii) becomes available to you on a non-confidential basis
from a source other than the Company or its advisors, provided that such source
is not known by you to be bound by a confidentiality agreement with or other
obligation of secrecy to the Company or another party.
2. You hereby agree that the Evaluation Material will be used solely for
the purpose of evaluating a possible transaction between the Company or its
stockholders and you, will not be used in any way detrimental to the Company,
and will be kept confidential by you and your representatives;
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Amsted Industries Incorporated
July 9, 1999
Page 2
provided, however, that any of such information may only be disclosed to your
representatives who need to know such information for the purpose of evaluating
any such possible transaction between the Company or its stockholders and you
and who agree with the Company in writing (such writing to be delivered to the
Company prior to any disclosure) to keep such information confidential and to
be bound by this agreement to the same extent as if they were parties hereto.
3. You hereby acknowledge that you are aware, and that you will advise
your representatives who are informed as to the matters which are the subject of
this letter agreement, that the United States securities laws prohibit any
person who has received from an issuer material, non-public information
concerning the matters which are the subject of this letter from purchasing or
selling securities of such issuer or from communicating such information to any
other person under circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities.
4. In the event that you or your representatives receive a request to
disclose all or any part of the information contained in the Evaluation Material
under the terms of a valid and effective subpoena or order issued by a court of
competent jurisdiction or by a governmental or regulatory body, you agree to (i)
immediately notify the Company of the existence, terms and circumstances
surrounding such a request, so that it may seek an appropriate protective order
and/or waive your compliance with the provisions of this agreement (and, if the
Company seeks such an order, to provide such cooperation as the Company shall
reasonably request). If failing the entry of a protective order or the receipt
of a waiver hereunder, you or your representative are, in the opinion of your
counsel or representative's counsel ("Counsel"), as the case may be, compelled
to disclose Evaluation Material under pain of liability for contempt or other
censure or penalty, you or such representative as applicable may disclose only
that portion of such information as is legally required without liability
hereunder; provided, that you or such representative, as applicable, agree to
exercise reasonable efforts to obtain assurance that confidential treatment will
be accorded such information.
5. In addition, without the prior written consent of the Company, you
will not, and will cause your representatives not to, disclose to any person
(other than your representatives who have entered into a confidentiality
agreement with the Company regarding the Evaluation Material) either (i) the
fact that Evaluation Material has been provided to you, (ii) the fact of any
discussions or negotiations that take place concerning a possible transaction
between the Company or its stockholders and you, or (iii) any of the terms,
conditions or other facts with respect to any such possible transaction,
including the status thereof, except that disclosure of such information may be
made in a filing required by the Securities Exchange Act of 1934, as amended
(the "Exchange Act") filed with the Securities and Exchange Commission if and to
the extent, in the opinion of your Counsel, you are required to make such
disclosure pursuant to the Exchange Act and the rules and regulations
promulgated thereunder; provided that prior to any such disclosure, you shall
first give the Company a reasonable opportunity to review the proposed
disclosure and to comment thereon.
6. Without your prior written consent, the Company will not, and will
cause its representatives and advisors not to, disclose to any person either (i)
the fact that Evaluation Material
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Amsted Industries Incorporated
July 9, 1999
Page 3
has been provided to you, (ii) the fact of any discussions or negotiations that
take place concerning a possible transaction between the Company or its
stockholders and you, or (iii) any of the terms, conditions or other facts with
respect to any such possible transaction, including the status thereof, except
that disclosure of such information may be made in a filing required by the
Exchange Act filed with the Securities and Exchange Commission if and to the
extent, in the opinion of the Company's legal counsel, the Company is required
to make such disclosure pursuant to the Exchange Act and the rules and
regulations promulgated thereunder; provided that prior to any such disclosure,
the Company shall first give you a reasonable opportunity to review the proposed
disclosure and to comment thereon.
7. You hereby acknowledge that the Evaluation Material is being furnished
to you in consideration of your agreement that for a period of forty-five (45)
days from the date hereof you and your affiliates (as defined in Rule 12b-2
under the Exchange Act) will not (and you and they will not assist, provide or
arrange financing to or for others or encourage others to), directly or
indirectly, acting alone or in concert with others, unless specifically
requested in writing in advance by the Board of Directors of the Company:
(1) accept for payment or pay for any shares of the Company pursuant
to the tender offer for all the outstanding shares of the Company commenced
by you on May 24, 1999 (the "Offer").
(2) apart from the Offer, which shall be governed by the preceding
subparagraph, acquire or agree, offer, seek or propose to acquire (or
request permission to do so), ownership (including, but not limited to,
beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any
of the assets or businesses of the Company or any securities issued by the
Company, or any rights or options to acquire such ownership (including from
a third party), or make any public announcement (or request permission to
make any such announcement) with respect to any of the foregoing,
(3) seek or propose to convene a special meeting of the stockholders
of the Company, or to influence or control the management or the policies
of the Company, or to obtain representation on the Company's Board of
Directors, or to solicit or participate in the solicitation of, any proxies
or consents with respect to any securities of the Company, or make any
public announcement with respect to any of the foregoing or request
permission to do any of the forgoing,
(4) take any action which might require the Company to make a public
announcement regarding the types of matters set forth in subparagraphs (1),
(2) and (3) above,
(5) enter into any discussions, negotiations, arrangements or
understanding with any third party with respect to any of the foregoing, or
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Amsted Industries Incorporated
July 9, 1999
Page 4
(6) seek to have the Company amend or waive any provision of this
paragraph (the "Standstill Paragraph").
8. You hereby acknowledge that the Evaluation Material is being furnished
to you also in consideration for your agreement that, for the period beginning
on the date of this letter agreement and ending one (1) year from the date of
this agreement that neither you nor any of your affiliates (as such term is
defined in Rule 12b-2 under the Exchange Act) will solicit to employ any of the
officers or key employees of the Company, without obtaining prior written
consent of the Company (it being understood that any newspaper or other public
solicitation not directed specifically to such person shall not be deemed to be
a solicitation for the purposes of this provision), provided that this paragraph
shall not prohibit you or your affiliates from discussing employment
opportunities with, or hiring, any officer or key employee of the Company who
initiates such discussions with you or your affiliate.
9. The Company agrees that it will not enter into a confidentiality
agreement with another party which contains standstill provisions materially
more favorable to such third party than those set forth in the Standstill
Paragraph (including such an agreement that omits in its entirety provisions
comparable thereto), unless the Company also offers you substantially similar
provisions.
10. If at any time during such period you are approached by any third
party concerning your or their participation in a transaction involving the
assets or businesses of the Company or securities issued by the Company, you
will promptly inform the Company of the nature of such contact and the parties
thereto.
11. Although the Company has endeavored to include in the Evaluation
Material information which it believes to be relevant for the purpose of your
investigation, you understand that neither the Company nor any of its
representatives or advisors have made or make any representation or warranty as
to the accuracy or completeness of the Evaluation Material. You agree that
neither the Company nor its representatives or advisors shall have any liability
to you or any of your representatives resulting from the use or contents of the
Evaluation Material or from any action taken or any inaction occurring in
reliance on the Evaluation Material.
12. At the request of the Company or in the event that you do not proceed
with a transaction which is the subject of this letter, you and your
representatives shall destroy or redeliver to the Company all Evaluation
Material and any other material (whether written or stored electronically,
magnetically or by any other means of information storage) containing or
reflecting any information in the Evaluation Material (whether prepared by the
Company, its advisors, agents or otherwise) and will not retain any copies,
extracts or other reproductions in whole or in part of such material. Such
destruction or redelivery to the Company of all Evaluation Material pursuant to
the preceding sentence shall be certified in writing to the Company an
authorized officer with knowledge of such action. All material prepared by you
or your representatives based on information in the Evaluation Material shall be
destroyed, and such destruction shall be certified in writing to the Company by
an authorized officer supervising such destruction.
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Amsted Industries Incorporated
July 9, 1999
Page 5
13. It is further understood and agreed that no failure or delay by
the Company in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any right, power or privilege hereunder. The agreements set forth in this
letter may be modified or waived only by a separate writing by the Company
and you expressly so modifying or waiving such agreements.
14. You agree that unless and until a definitive agreement between
the Company and you with respect to any transaction referred to in the
first paragraph of this letter has been executed and delivered, neither the
Company nor you will be under any legal obligation of any kind whatsoever
with respect to such a transaction by virtue of this or any written or oral
expression with respect to such a transaction by any of its directors,
officers, employees, agents or any other representatives or its advisors
except for the matters specifically agreed to in this letter. You further
agree (i) that the Company shall have no obligation to authorize or pursue
with you or any other party any transaction referred to in the first
paragraph of this letter and you understand that the Company has not, as of
the date hereof, authorized any such transaction and (ii) that the Company
and its representatives shall be free to conduct any process for any
transaction involving the Company if and as they in their sole discretion
shall determine (including, without limitation, negotiating with any other
interested parties and entering into a definitive agreement without prior
notice to you or any other person) and that any procedures relating to
such process or transaction may be changed at any time without notice to
you or any other person.
15. The parties hereto acknowledge that money damages are an
inadequate remedy for breach of this letter agreement because of the
difficulty of ascertaining the amount of damage that will be suffered by
the Company in the event that this agreement is breached. Therefore, you
agree that the Company may obtain specific performance of this agreement
and injunctive relief against any breach hereof. In the event of
litigation relating to this letter agreement, if a court of competent
jurisdiction determines that you or any of your representatives has
breached this letter agreement, then you shall be liable to the Company for
the reasonable legal fees and costs incurred by the Company in connection
with such litigation, including any appeal therefrom.
16. If any term, provision, covenant or restriction of this letter
agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
17. Except as specified elsewhere herein, the terms of this letter
agreement will remain in force until the date that is two years from the
date hereof.
18. This letter agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of
which shall constitute the same agreement and shall become a binding
agreement when one or more counterparts have been signed by each party and
delivered to the other party, thereby constituting the entire agreement
among the parties pertaining
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Amsted Industries Incorporated
July 9, 1999
Page 6
to the subject matter hereof. This letter agreement supercedes all prior and
contemporaneous agreements, understandings and representations, whether oral or
written, of the parties in connection herewith. No covenant or condition or
representation not expressed in this letter agreement shall affect or otherwise
be effective to interpret, change or restrict this letter agreement. No prior
drafts of this letter agreement and no words or phrases from any such prior
drafts shall be admissible into evidence in any action, suit or other proceeding
involving this letter agreement. This letter agreement shall be deemed to have
been mutually prepared by the parties and shall not be construed against any of
them by reason of authorship. This letter agreement may not be changed or
terminated orally, nor shall any change, termination or attempted waiver of any
of the provisions of this letter agreement be binding on any party unless in
writing signed by the parties hereto. No modification, waiver, termination,
rescission, discharge or cancellation of this letter agreement and no waiver of
any provision of or default under this letter agreement shall affect the right
of any party thereafter to enforce any other provision or to exercise any right
or remedy in the event of any other default, whether or not similar.
19. This letter shall be governed by, and construed in accordance with,
the laws of the State of Delaware. All disputes related to this agreement shall
be heard exclusively in the courts of the State of Delaware and the parties
agree to submit to the jurisdiction of courts of the State of Delaware for
purposes of resolving any such disputes.
Very truly yours,
VARLEN CORPORATION
(by Morgan Stanley & Co. Incorporated)
By: /s/ Francis J. Oelerich III
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Francis J. Oelerich III
Managing Director
Confirmed and Agreed to:
AMSTED INDUSTRIES INCORPORATED
By: /s/ Thomas C. Berg
-----------------------------
Title: Vice President,
General Counsel and Secretary
