U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
THE THERMO OPPORTUNITY FUND, INC.
(Exact Name of Registrant as Specified in Charter)
Maryland 31-1469883
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
312 Walnut Street, 21st Floor, Cincinnati, Ohio 45202
(Address of Principal Executive Offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Common Stock, par American Stock Exchange
value $.001 per share
If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A.(c)(1), please
check the following box.
/ /
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box.
/ /
Securities to be registered pursuant to Section 12(g) of the Act:
None
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ITEM 1. Description of Registrant's Securities to be Registered
The following description of the Common Stock to be registered
hereunder has been filed by The Thermo Opportunity Fund, Inc. (the "Fund") with
the Securities and Exchange Commission (the "Commission") under the captions
"Capital Stock" and "Dividends and Distributions" in the prospectus contained in
the Fund's Registration Statement on Form N-2 dated May 7, 1996, as amended July
22, 1996 (the "Registration Statement"), which is incorporated herein by
reference:
"CAPITAL STOCK
CAPITALIZATION
The Fund was incorporated in Maryland on May 16, 1996. The authorized
capital stock of the Fund is 16,000,000 shares of Common Stock ($.001 par value
per share).
The shares of Common Stock outstanding prior to the date of this
Prospectus are, and the Shares, when issued, will be, fully paid and
nonassessable. All shares of Common Stock have equal dividend, distribution and
voting privileges. There are no conversion, preemptive or other subscription
rights. In the event of liquidation, each share of Common Stock is entitled to
its proportion of the Fund's assets after debts and expenses. There are no
cumulative voting rights for the election of Directors. Prior to the offering,
the Adviser will own all of the outstanding shares of Common Stock of the Fund
and, consequently, will be the controlling person of the Fund until the Shares
offered hereby are issued and sold.
The Fund has no present intention of offering additional shares of its
Common Stock other than as provided in the Fund's Dividend Reinvestment Plan.
Other offerings of its Common Stock, if made, will require approval of the
Fund's Board of Directors. Any additional offering will be subject to the
requirements of the 1940 Act that shares of Common Stock may not be sold at a
price below the then current net asset value (exclusive of underwriting
discounts and commissions) except in connection with an offering to existing
stockholders or with the consent of the holders of a majority of the Fund's
outstanding shares of Common Stock.
SHARE REPURCHASES; CONVERSION TO OPEN-END INVESTMENT COMPANY
The Fund is a closed-end management investment company and as such its
stockholders do not have the right to present their Shares for redemption by the
Fund. Instead, Shares trade in the open market at a price that will be a
function of several factors, including net asset value. If the Shares trade at a
significant discount from net asset value, the Board of Directors of the Fund is
authorized to take action intended to reduce or eliminate the discount, which
may include the repurchase of
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Shares in the open market or in private transactions, or the making of a tender
offer for Shares. There can be no assurance, however, that the Board of
Directors will decide to take any of these actions, or that Share repurchases or
tender offers, if undertaken, will reduce any market discount. The staff of the
Securities and Exchange Commission (the "SEC") currently requires that any
tender offer made by a closed-end investment company for shares of its stock
must be at a price equal to the net asset value of such stock on the close of
business on the last day of the tender offer. Any service fees incurred in
connection with any tender offer made by the Fund will be borne by the Fund and
will not reduce the stated consideration to be paid to tendering stockholders.
Although the decision to take action in response to a significant
discount from net asset value will be made by the Board of Directors at the time
it considers the matter, it is the Board's present policy, which may be changed
by the Board, not to authorize repurchases of Shares or a tender offer for
Shares if (i) such transactions, if consummated, would (a) result in the
delisting of the Shares from any stock exchange, or (b) impair the Fund's status
as a regulated investment company under the Code (which would make the Fund a
taxable entity, causing the Fund's income to be taxed at the corporate level in
addition to the taxation of stockholders who receive dividends from the Fund) or
as a registered closed-end investment company under the 1940 Act; (ii) the Fund
would not be able to liquidate portfolio securities in an orderly manner and
consistent with the Fund's investment objective and policies in order to
repurchase Shares; or (iii) there is, in the judgment of the Directors, any (a)
material legal action or proceeding instituted or threatened challenging such
transactions or otherwise materially adversely affecting the Fund, (b) general
suspension of or limitation on prices for trading securities on any stock
exchange, (c) declaration of a banking moratorium by federal or state
authorities or any suspension of payment by United States or New York State
banks in which the Fund invests, (d) material limitation affecting the Fund or
the issuers of its portfolio securities by federal or state authorities on the
extension of credit by lending institutions or on the exchange of foreign
currency, (e) commencement of war, armed hostilities or other international or
national calamity directly or indirectly involving the United States, or (f)
other event or condition that would have a material adverse effect (including
any adverse tax effect) on the Fund or its stockholders if Shares were
repurchased. The Board of Directors may in the future modify these conditions in
light of experience.
The repurchase by the Fund of Shares at prices below net asset value
would result in an increase in the net asset value of those Shares that remain
outstanding. However, there can be no assurance that Share repurchases or
tenders would reduce or eliminate a market discount from net asset value.
Nevertheless, the fact that the Shares may be the subject of repurchase or
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tender offers from time to time may reduce any spread between market price and
net asset value that might otherwise exist. A purchase by the Fund of Shares
will decrease the Fund's total assets which would likely have the effect of
increasing the Fund's expense ratio.
If the Shares are trading at a significant discount from net asset
value, the Board also may consider submission to stockholders of a proposal to
amend the Fund's Articles of Incorporation to convert the Fund to an open-end
investment company. The Articles of Incorporation provide that such an amendment
would require the approval of the holders of at least 75% of the votes then
entitled to be cast by stockholders and at least 75% of the entire Board of
Directors, unless such conversion was previously approved by a vote of at least
75% of the Fund's Continuing Directors (defined as those Directors who either
are members of the Board of Directors on the date of the closing of this
offering or subsequently became Directors and whose election is approved by a
majority of the Continuing Directors then on the Board), in which case only the
affirmative vote of a majority of the votes entitled to be cast by stockholders
would be necessary. See "Anti-takeover Provisions" below. If the Fund converted
to an open-end investment company, the Shares would no longer be listed on any
stock exchange and the Fund's Dividend Reinvestment Plan, as described herein,
would be terminated. Shareholders of an open-end investment company may require
the company to redeem their shares at any time (except in certain circumstances
as authorized by or under the 1940 Act) at their net asset value, less any
applicable redemption charge or contingent deferred sales load, as might be in
effect at the time of redemption. In order to avoid maintaining large cash
positions or liquidating favorable investments to meet redemptions, open-end
companies typically engage in a continuous offering of their shares. Open-end
investment companies are thus subject to periodic asset in-flows and out-flows
which can complicate portfolio management. Open- end investment companies are
also prohibited from investing more than 15% of their net assets in illiquid
securities. Accordingly, if the Fund converted to an open-end company, the
Fund's investments in restricted and other illiquid securities would be subject
to this limitation and as a practical matter, it is unlikely that the Fund would
be able to continue to pursue its investment objective in the manner described
herein.
Before deciding whether to take any action in response to a discount
from net asset value, the Board would consider all relevant factors, including
the extent and duration of the discount, the liquidity of the Fund's portfolio,
the impact of any action that might be taken on the Fund or its stockholders and
market considerations. Based on these considerations, even if the Shares should
trade at a significant discount, the Board of Directors may determine that, in
the interest of the Fund and its stockholders, no action should be taken.
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ANTI-TAKEOVER PROVISIONS
The Fund presently has provisions in its Articles of Incorporation and
Bylaws (commonly referred to as "anti-takeover" provisions) that may have the
effect of limiting the ability of other entities or persons to acquire control
of the Fund, to cause it to engage in certain transactions or to modify its
structure.
The Board of Directors is divided into three classes. At the annual
meeting of stockholders each year, the term of one class will expire and
Directors will be elected to serve in that class for terms of three years. This
provision could delay for up to two years the replacement of a majority of the
Board of Directors.
Pursuant to the Fund's Articles of Incorporation, the affirmative vote
of the holders of at least 75% of the Shares entitled to vote in elections of
Directors is required to authorize any of the following transactions unless such
action has been approved, adopted or authorized by the affirmative vote of at
least 75% of the total number of Continuing Directors, in which case the
affirmative vote of at least a majority of the outstanding Shares is required:
(i) merger or consolidation or statutory share exchange
of the Fund with or into any other corporation, or the sale
of substantially all of the Fund's assets to any other
corporation;
(ii) the liquidation or dissolution of the Fund;
(iii) any stockholder proposal as to specific investment
decisions made or to be made with respect to the Fund's
assets; or
(iv) any amendment to the Fund's Articles of Incorporation
to make the Shares "redeemable securities" (i.e., to cause
the Fund to become an open-end investment company).
Reference is made to the Articles of Incorporation and Bylaws of the
Fund, on file with the SEC, for the full text of these provisions. See
"Available Information." The percentage of votes required under these
provisions, which is greater than the minimum requirements under Maryland law,
will make a change in the Fund's business or management more difficult and may
have the effect of depriving stockholders of an opportunity to sell Shares at a
premium over prevailing market prices by discouraging a third party from seeking
to obtain control of the Fund in a tender offer or similar transaction.
In the opinion of the Adviser, the foregoing provisions offer several
advantages. Such provisions may require persons seeking control of the Fund to
negotiate with the management of
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the Fund regarding the price to be paid for the Shares required to obtain such
control, they promote continuity and stability and they enhance the Fund's
ability to pursue long-term strategies that are consistent with its investment
objective.
DIVIDENDS AND DISTRIBUTIONS
GENERAL
The Fund intends to distribute annually substantially all of its net
investment income, and to distribute at least annually any net realized capital
gains to or to the accounts of holders of Shares. Under the Fund's Dividend
Reinvestment Plan, all dividends and distributions will be automatically
reinvested by The Fifth Third Bank, the Plan Agent, to purchase additional
Shares from the Fund or in the open market unless a stockholder affirmatively
elects to receive cash. All dividends and distributions will be taxable, whether
reinvested pursuant to the Dividend Reinvestment Plan or distributed in cash.
DIVIDEND REINVESTMENT PLAN
Pursuant to the Dividend Reinvestment Plan (the "Plan"), stockholders
whose Shares are registered in their own names will be deemed to have elected to
have all dividends and distributions automatically reinvested by the Plan Agent
in Shares pursuant to the Plan, unless a stockholder elects to receive
distributions in cash. Stockholders who elect to receive distributions in cash
will receive all distributions in cash paid by check mailed directly to the
stockholders by The Fifth Third Bank, as dividend paying agent. In the case of
stockholders, such as banks, brokers or nominees, that hold Shares for others
who are beneficial owners, the Plan Agent will administer the Plan on the basis
of the number of Shares certified from time to time by the stockholders as
representing the total amount registered in such stockholders' names and held
for the account of beneficial owners that have not elected to receive
distributions in cash. Investors that own Shares registered in the name of a
bank, broker or other nominee should consult with such nominee as to
participation in the Plan through such nominee, and may be required to have
their Shares registered in their own names in order to participate in the Plan.
The Plan Agent serves as agent for the stockholders in administering
the Plan. If the Directors of the Fund declare an income dividend or a capital
gains distribution payable either in Shares or in cash, nonparticipants in the
Plan will receive cash and participants in the Plan will receive Shares, to be
issued by the Fund or purchased by the Plan Agent in the open market, as
provided below. If the market price per share on the applicable valuation date
equals or exceeds net asset value per share on that date, the Fund will issue
new Shares to participants at net asset value; provided, however, that if the
net asset value is less than 95% of the market price on the valuation date, then
such Shares will be issued at 95% of the market price. The
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valuation date will be the dividend or distribution payment date, or if that
date is not an American Stock Exchange trading day, the next preceding trading
day. If net asset value exceeds the market price of the Shares on the valuation
date, or if the Fund should declare an income dividend or capital gains
distribution payable only in cash, the Plan Agent will, as agent for the
participants, buy Shares in the open market, on the American Stock Exchange or
elsewhere, for the participants' accounts on, or shortly after, the payment
date. If, before the Plan Agent has completed its purchases, the market price
exceeds the net asset value of the Shares, the average per share purchase price
paid by the Plan Agent may exceed the net asset value of the Shares, resulting
in the acquisition of fewer Shares than if the distribution had been paid in
Shares issued by the Fund on the dividend payment date. Because of the foregoing
difficulty with respect to open market purchases, the Plan provides that if the
Plan Agent is unable to invest the full dividend amount in open market purchases
during the purchase period or if the market discount shifts to a market premium
during the purchase period, the Plan Agent will cease making open-market
purchases and will invest the uninvested portion of the dividend amount in newly
issued Shares at the close of business on the last purchase date.
The Plan Agent maintains all stockholder accounts in the Plan and
furnishes written confirmations of all transactions in an account, including
information needed by stockholders for personal and tax records. Shares in the
account of each Plan participant will be held by the Plan Agent in the name of
the participant, and each stockholder's proxy will include those purchased
pursuant to the Plan.
There is no charge to participants for reinvesting dividends or capital
gains distributions. The Plan Agent's fees for the reinvestment of dividends and
capital gains distributions will be paid by the Fund. There will be no brokerage
charges with respect to Shares issued directly by the Fund as a result of
dividends or capital gains distributions payable either in stock or in cash.
However, each participant will pay a pro rata share of brokerage commissions
incurred with respect to the Plan Agent's open market purchases in connection
with the reinvestment of dividends and capital gains distributions made by the
participant. Brokerage charges for purchasing small amounts of stock for
individual accounts through the Plan are expected to be less than the usual
brokerage charges for such transactions, because the Plan Agent will be
purchasing stock for all participants in larger blocks and prorating the lower
commission attributable to such purchases.
The receipt and reinvestment by the Plan Agent of a participant's
dividends and distributions will not relieve the participant of any income tax
which may be payable on such dividends or distributions.
Experience under the Plan may indicate that changes in the Plan are
desirable. Accordingly, the Fund and the Plan Agent reserve the right to
terminate the Plan as applied to any
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dividend or distribution paid subsequent to notice of the termination sent to
Plan participants at least 30 days before the record date for such dividend or
distribution. Stockholders may terminate their participation in the Plan by
providing 30 days' written notice to the Plan Agent. The Plan also may be
amended by the Fund and the Plan Agent, but (except when necessary or
appropriate to comply with applicable law, rules or policies of a regulatory
authority) only by at least 30 days' written notice to participants in the Plan.
All correspondence concerning the Plan should be directed to The Fifth Third
Bank, as Plan Agent, at 38 Fountain Square Plaza, Cincinnati, Ohio 45263."
The foregoing description does not describe all terms of the Fund's
Articles of Incorporation and Bylaws. Reference is made to the Articles of
Incorporation and Bylaws filed as Exhibits 1 and 2, respectively to the
Registration Statement, as they may be revised from time to time, which are
incorporated herein by reference.
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ITEM 2. Exhibits1
1. The Registration Statement of the Fund as filed with the Commission
on May 17, 1996, as amended July 22, 1996.
2. Not Applicable.2
3. Not Applicable.3
4. Articles of Incorporation of the Fund (incorporated by
reference to the Fund's Registration Statement).
5. Specimen copy of the Common Stock certificate of the
Fund.
6. Not Applicable.4
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1 Filed only with the American Stock Exchange and not with the Commission
pursuant to Instruction II to Instructions as to Exhibits.
2 No current, quarterly or semi-annual report has been filed by the Fund
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended (the "1934 Act").
3 No proxy statement or information statement has been filed by the Fund
with the Commission pursuant to Section 14 of the 1934 Act.
4 No annual report has been submitted to shareholders by the
Fund. The Fund has no predecessors.
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SIGNATURE
Pursuant to the requirements of Section 12 of the 1934 Act, the Fund
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
THE THERMO OPPORTUNITY FUND, INC.
By: /s/ Francis S. Branin, Jr.
President
Dated: July 25, 1996
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