As filed with the Securities and Exchange Commission on June 29, 1994.
Registration No. 33-
_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
Registration Statement
Under
The Securities Act of 1933
_______________
THERMO ELECTRON CORPORATION
(Exact name of registrant as specified in its charter)
_______________
DELAWARE 04-2209186
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
81 Wyman Street
P. O. Box 9046
Waltham, Massachusetts 02254-9046
(Address of Principal Executive Offices) (Zip Code)
THERMO ELECTRON CORPORATION MONEYMATCH PLUS PLAN
(Full Title of Plan)
Sandra L. Lambert, Secretary
Thermo Electron Corporation
81 Wyman Street
P. O. Box 9046
Waltham, Massachusetts 02254-9046
(Name and Address of Agent for Service)
Copies to:
Seth H. Hoogasian, Esq., General Counsel
Thermo Electron Corporation
81 Wyman Street
P. O. Box 9046
Waltham, Massachusetts 02254-9046
(617) 622-1000
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
_____________________________________________________________________________
Title of Proposed Proposed
securities Amount to Maximum Maximum Amount of
to be be Offering aggregate registration
registered registered Price Per offering price fee
Share
Common
Stock, $1.00 600,000 (1) $37.1875 (2) $22,312,500 (2) $7,694 (2)
par value
per share
In addition, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein and an
indeterminate number of shares of the Registrant's Common Stock as may be
issuable in connection with adjustments under such plan to reflect certain
changes in the Registrant's capital structure, including stock dividends or
stock split-ups.
(1) The number of shares of Common Stock which will actually be issued under
the Plan cannot be determined at this time, as the number of shares of
Common Stock purchased by the Plan Administrator pursuant to the Plan
will depend on the amount of contributions to be used to purchase shares
of the Registrant's Common Stock in the open market and the prevailing
market prices.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(g) under the Securities Act
of 1933. The calculation of the proposed maximum aggregate offering
price has been based upon (1) the registration hereunder of an aggregate
of 600,000 shares and (2) the average of the high and low sales prices,
$37 3/8 and $37, respectively, of the Registrant's Common Stock on the
New York Stock Exchange on June 24, 1994 as reported in The Wall Street
Journal.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the MoneyMatch Plus Plan (the "Plan") of Thermo
Electron Corporation (the "Registrant" or the "Company") pursuant to Rule
428(b) (1) under the Securities Act of 1933, as amended (the "Securities
Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant and the Plan are subject to the informational and
reporting requirements of Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith file reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). The
following documents, which are on file with the Commission, are incorporated
in this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended January 1, 1994.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended April 2, 1994.
(c) The Plan's Annual Report Form 11-K for the plan year ended December
31, 1992.
(d) The description of the Registrant's Common Stock, contained in the
Registrant's Registration Statement on Form 8-A, as amended, and the
description of the Registrant's Preferred Stock Purchase Rights contained in
the Registrant's Registration Statement on Form 8-A, as amended.
All reports or proxy statements filed by the Company or the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior to the filing
of a post-effective amendment that indicates that all securities offered
herein have been sold, or that deregisters all such securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the respective dates of filing such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock offered hereby has been passed upon by
Seth H. Hoogasian, Esq., General Counsel of the Company. Mr. Hoogasian is a
full-time employee of the Company and owns or has the right to acquire,
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pursuant to the exercise of stock options, shares of the Common Stock of the
Company and of certain of its subsidiaries, the fair market value of which
exceeds $50,000.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, gives Delaware corporations the power to indemnify each of their
present and former directors or officers under certain circumstances, if such
person acted in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the corporation.
Article Thirteenth of the Registrant's Amended and Restated Certificate
of Incorporation provides that no director of the Registrant shall be liable
for any breach of fiduciary duty, except to the extent that the Delaware
General Corporation Law prohibits the elimination or limitation of liability
of directors for breach of fiduciary duty.
Article Ninth of the Registrant's Amended and Restated Certificate of
Incorporation provides that a director or officer of the Registrant (a) shall
be indemnified by the Registrant against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement incurred in connection
with any litigation or other legal proceeding (other than action by or in the
right of the Registrant) brought against him by virtue of his position as a
director or officer of the Registrant if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests
of the Registrant and with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful and (b) shall be
indemnified by the Registrant against all expenses (including attorneys'
fees) and amounts paid in settlement incurred in connection with any action
by or in the right of the Registrant brought against him by virtue of his
position as a director of officer of the Registrant if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, except that no indemnification shall be made
with respect to any matter as to which such person shall have been adjudged
to be liable to the Registrant, unless a court determines that, despite such
adjudication but in view of all of the circumstances, he is entitled to
indemnification of such expenses. Notwithstanding the foregoing, to the
extent that a director or officer has been successful, on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, he is required to be indemnified by the Registrant against all
expenses (including attorneys' fees) incurred in connection therewith.
Expenses may be advanced to a director or officer at his request, provided
that he undertakes to repay the amount advanced if it is ultimately
determined that he is not entitled to indemnification for such expenses.
Indemnification shall be made by the Registrant (unless ordered by a court)
only upon a determination that the applicable standard of conduct required
for indemnification has been met. Article Ninth of the Registrant's Amended
and Restated Certificate of Incorporation further provides that the
indemnification provided therein is not exclusive. The Registrant has
indemnification agreements with its directors and officers that provide for
the maximum indemnification allowed by law.
The Registrant maintains officers' and directors' insurance covering
certain liabilities that may be incurred by officers and directors in the
performance of their duties.
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Item 7. Exemption of Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is attached hereto
and incorporated herein by reference. The Company has obtained a favorable
determination from the Internal Revenue Service (the "IRS") for the Plan.
The Company undertakes to submit any amendments to the Plan to the IRS in a
timely manner and to make all changes required by the IRS in order to qualify
the Plan under the Employee Retirement Income Security Act of 1974, as
amended, and Sections 401(a) and 401(k) of the Internal Revenue Code of 1986,
as amended.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include in any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Waltham, Commonwealth of
Massachusetts, on this 28th day of June, 1994.
THERMO ELECTRON CORPORATION
By: George N. Hatsopoulos
-------------------------
George N. Hatsopoulos, President
and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned Directors and Officers of Thermo Electron
Corporation hereby appoints John N. Hatsopoulos, Paul F. Kelleher, Theo
Melas-Kyriazi, Seth H. Hoogasian and Sandra L. Lambert, and each of them, his
true and lawful attorneys-in-fact and agents, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
President, Chief Executive
Officer, Chairman of the
George N. Hatsopoulos Board of Directors June 28, 1994
------------------------
George N. Hatsopoulos
Executive Vice President
John N. Hatsopoulos and Chief Financial Officer June 28, 1994
------------------------
John N. Hatsopoulos
Vice President, Finance
Paul F. Kelleher (Chief Accounting Officer) June 28, 1994
------------------------
Paul F. Kelleher
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Signature Title Date
John M. Albertine Director June 28, 1994
------------------------
John M. Albertine
Peter O. Crisp Director June 28, 1994
------------------------
Peter O. Crisp
Elias P. Gyftopoulos Director June 28, 1994
------------------------
Elias P. Gyftopoulos
Frank Jungers Director June 28, 1994
-------------
Frank Jungers
Robert A. McCabe Director June 28, 1994
------------------------
Robert A. McCabe
Frank E. Morris Director June 28, 1994
------------------------
Frank E. Morris
Donald E. Noble Director June 28, 1994
------------------------
Donald E. Noble
Hutham S. Olayan Director June 28,1994
------------------------
Hutham S. Olayan
Roger D. Wellington Director June 28, 1994
------------------------
Roger D. Wellington
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Pursuant to the requirements of the Securities Act of 1933, as amended,
the Plan Administrator of the Thermo Electron Corporation MoneyMatch Plus
Plan has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Waltham,
Commonwealth of Massachusetts, on the 28th day of June, 1994.
Thermo Electron Corporation MoneyMatch Plus Plan
By: Thermo Electron Corporation,
Plan Administrator
By: Theo Melas-Kyriazi
----------------------------
Theo Melas-Kyriazi, Treasurer
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EXHIBIT INDEX
Exhibit
Number Description Page
------ ----------- ----
4.1 Amended and Restated Certificate of
Incorporation of the Registrant 11
4.2 By-Laws of the Registrant (incorporated
herein by reference to Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K
for the fiscal year ended January 2, 1988).
4.3 Rights Agreement dated as of May 4, 1988
between the Registrant and The First National
Bank of Boston, as Rights Agent (incorpo-
rated herein by reference to Exhibit 1 to
the Form 8-A filed with the Commission on
May 17, 1988).
5.1 Opinion of Seth H. Hoogasian, Esq. 31
23.1 Consent of Arthur Andersen & Co. 33
23.2 Consent of Arthur Andersen & Co. 34
23.3 Consent of Seth H. Hoogasian, Esq.
(contained in his opinion filed as
Exhibit 5.1).
24.1 Power of Attorney (see pages 7 and 8 of
this Registration Statement).
AMENDED AND RESTATED EXHIBIT 4.1
CERTIFICATE OF INCORPORATION
OF
THERMO ELECTRON CORPORATION
THERMO ELECTRON CORPORATION, a corporation organized and
existing under the laws of the State of Delaware, hereby
certifies as follows:
1. The name of the Corporation is Thermo Electron
Corporation, and the name under which the Corporation was
originally incorporated is Thermo Electron Engineering
Corporation. The date of filing of its original Certificate of
Incorporation with the Secretary of State was October 11, 1960.
A Restated Certificate of Incorporation was filed with the
Secretary of State on February 5, 1981.
2. That Article FOURTH of the Restated Certificate of
Incorporation of the Corporation, as restated on February 5,
1981, and as subsequently amended, is hereby further amended to
increase the number of authorized shares of the Corporation's
Common Stock, $1.00 par value per share, from 100 million shares
to 175 million shares and that such amendment is hereby effected
by deleting said Article in its entirety and inserting the
following in substitution therefor:
"FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is: (a) One Hundred
Seventy-Five Million (175,000,000) shares of Common Stock of the
par value of $1.00 per share, the holders of which shall have one
vote for each share so held, and (b) Fifty Thousand (50,000)
shares of Preferred Stock of the par value of $100 per share, to
be issued in such classes, including one or more series within
such class, and to possess such specific terms including dividend
rates, conversion prices, voting rights, redemption prices,
maturity dates and other special rights, preferences,
qualifications, limitations, and restrictions thereof, as shall
be determined in the resolution or resolutions providing for the
issue of such Preferred Stock adopted by the Board of Directors
from time to time."
3. That the Board of Directors of the Corporation at a
meeting held on April 6, 1994, duly adopted the following
resolutions:
RESOLVED: That it is in the best interests of the
Corporation that the authorized common stock,
$1.00 par value, of the Corporation be increased
to 175 million shares, and that, upon the approval
of such increase by the Corporation's
Stockholders, that the Corporation's Restated
Certificate of Incorporation be amended and
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restated to reflect such approval, and that the
proper officers of the Corporation be, and each of
them hereby is, authorized, empowered and directed
to execute on behalf of the Corporation an Amended
and Restated Certificate of Incorporation to
reflect such increase and restatement, and to
file, or cause to be filed, such Amended and
Restated Certificate of Incorporation with the
Secretary of State of the State of Delaware.
FURTHER
RESOLVED: That the Board of Directors recommend to the
Stockholders for approval at the Annual Meeting of
Stockholders to be held on Tuesday, May 24, 1994
the increase in authorized shares of the
Corporation's common stock to 175 million shares.
4. That, on May 24, 1994, at the Corporation's Annual
Meeting of Stockholders, the amendment to the Corporation's
Restated Certificate of Incorporation was duly adopted by the
affirmative vote of Stockholders of the Corporation holding in
excess of 66-2/3% of the shares of Common Stock, $1.00 par value
per share, of the Corporation in accordance with the provisions
of Section 242 of the General Corporation Law of the State of
Delaware and Article ELEVENTH of the Corporation's Restated
Certificate of Incorporation.
5. Except as set forth above, this Amended and Restated
Certificate of Incorporation only restates and integrates and
does not further amend the provisions of the Restated Certificate
of Incorporation of this Corporation as heretofore amended or
supplemented and there is no discrepancy between those provisions
and the provisions of this Restated Certificate of Incorporation.
This Amended and Restated Certificate of Incorporation was duly
adopted pursuant to Section 245 of the General Corporation Law of
the State of Delaware.
6. The text of the Restated Certificate of Incorporation
as amended or supplemented heretofore is hereby amended and
restated to read as herein set forth in full:
"AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THERMO ELECTRON CORPORATION
FIRST: The name of the Corporation is
THERMO ELECTRON CORPORATION
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SECOND: The registered office of the Corporation in the
State of Delaware is to be located in the City of Wilmington, in
the County of New Castle, in the State of Delaware. The name of
its registered agent is The Corporation Trust Company whose
address is No. 1209 Orange Street, in said city.
THIRD: The nature of the business of the Corporation and
the objects or purposes proposed to be transacted, promoted or
carried on by it are:
(1) To design, manufacture, buy, sell, trade, import,
export, or otherwise deal in heat engines or other power and
energy sources and in materials and items in any way related
thereto;
(2) To invent and foster the invention of and carry on
research and development programs with respect to heat engines
and other power and energy sources and materials and items in any
way related thereto;
(3) To publish or cause to be published or to assist in the
publication of books, pamphlets, magazines, articles, papers and
other publications in the furtherance of or related to or
connected with any of the purposes of the Corporation;
(4) To apply for, register, introduce, develop, acquire,
hold, use, exercise, operate, lease, deal in, dispose of, take or
grant licenses or other rights with respect to, and in any and
all ways exploit or turn to account inventions, improvements,
processes, privileges, copyrights, patents, trade-marks,
formulae, trade names and distinctive marks and similar rights of
any and all kinds in relation to any of the purposes herein
stated, and whether granted, registered or established by or
under the laws of the United States of America or of any state,
foreign country, authority or place;
(5) To acquire, by purchase, subscription or otherwise,
hold and dispose of all forms of securities, including stocks,
bonds, debentures, notes, evidences of indebtedness, certificates
of interest and other rights, choses in action, interests and
obligations, whether issued or created by corporations, domestic
or foreign, associations, partnerships, joint ventures,
individuals, governments, states, municipalities or other
political divisions or subdivisions; and to issue in exchange
therefor shares of its own capital stock, bonds and other
securities or obligations; and while the holder of any such
securities, to posses and exercise in respect thereof any and all
of the rights, powers and privileges of individual ownership or
interest therein, including the right to vote thereon for any and
all purposes and to consent or otherwise act with respect
thereto;
(6) To purchase, lease or otherwise acquire, hold, operate
or develop, lease to others, sell or otherwise dispose of real
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and personal property of every class and description, or any
interest therein, and to any amount, in the State of Delaware or
in any state or territory of the United States of America or in
any foreign country, subject to the laws of any such state,
territory or foreign country;
(7) To borrow money and contract debts for any of the
purposes of the Corporation, and to issue bonds, debentures,
notes or other securities or obligations of any nature for moneys
so borrowed or in payment for property acquired, and to secure
the payment thereof, or of any debt contracted for such purposes,
by mortgage upon or pledge or conveyance assignment in trust of
the whole or any part of the property and franchises of the
Corporation, real and personal, including securities and contract
rights, whether at the time owned or thereafter acquired; to
confer on the holder of any debt or obligation of the
Corporation, secured or unsecured, the right to convert the
principal thereof into stock of the Corporation; to loan money
with or without collateral, in furtherance of any of the purposes
of the Corporation; and to guarantee any obligation for the
payment of money or the performance of any contract by any
corporation, association, partnership, joint venture or
individual; but all only to such extent as a corporation
organized under the General Corporation Law of the State of
Delaware may at the time lawfully do;
(8) To purchase or otherwise acquire shares of its own
capital stock, to hold any stock acquired by the Corporation,
and, to such extent and in such manner and upon such terms as the
directors shall determine, subject to the By-Laws of the
Corporation, to reissue, sell or otherwise dispose of any such
stock; provided it shall not use its funds or property for the
purchase of its own shares of capital stock when such use would
cause any impairment of its capital, nor shall any shares of its
own capital stock belonging to it be voted upon directly or
indirectly;
(9) To transact its business and conduct its affairs, so
far as permitted by law, in the State of Delaware, in other
states of the Untied States of America, in the District of
Columbia, in any of the territories, districts, protectorates,
dependencies or insular or other possessions of the United States
of America, or in any foreign countries;
(10) To acquire all or any part of the goodwill, rights,
property, privileges, franchises and business of any other
person, entity, partnership, joint venture, association or
corporation heretofore or hereafter engaged in any business
similar to any business which the Corporation has power to
conduct; to pay for the same in cash or in stocks, bonds,
debentures, notes or other securities or obligations of the
Corporation or otherwise; to hold, utilize and in any manner
dispose of the whole or any part of the rights and property so
acquired; and to assume, in connection therewith, any liability
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of any such person, entity, partnership, joint venture,
association or corporation; and to conduct in any lawful manner
the whole or any part of the business thus acquired;
(11) To carry out all or any part of the foregoing purposes
and objects as principal, factor, agent, contractor, or
otherwise, either alone or in conjunction with any person, firm,
joint venture, association or corporation; and in carrying on its
business and for the purpose of attaining or furthering any of
its objects, to make and perform contracts of any kind and
description, to aid in any manner any person, corporation,
association, partnership, joint venture or individual in the
welfare of which the Corporation shall have any interest, and to
do anything and everything necessary, suitable, convenient or
proper for the accomplishment of any of the purposes, or the
attainment of any one or more of the objects herein enumerated or
incidental to the powers herein specified, or which shall at any
time appear conducive to or expedient for the accomplishment of
any of the purposes or for the attainment of any of the objects
hereinbefore enumerated, so far as, and to the extent and subject
to compliance with such conditions and requirements, that the
same may lawfully be done and performed by a corporation
organized under the General Corporation Law of the State of
Delaware, but not otherwise.
The foregoing clauses of this Article THIRD shall be
construed as stating powers as well as objects and purposes, in
furtherance and not in limitation of the general powers conferred
upon the Corporation by the laws of the State of Delaware or of
the United States, whether expressly or impliedly by reasonable
construction of such laws, and whether the same be now or
hereafter in effect. It is the intention that the objects,
purposes and powers specified in each of said clauses shall be in
no wise limited or restricted by reference to or inference from
the terms of any other clause, but that the objects, purposes and
powers specified in each of the clauses of this Article shall be
regarded as independent objects, purposes and powers.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is: (a) One Hundred
Seventy-Five Million (175,000,000) shares of Common Stock of the
par value of $1.00 per share, the holders of which shall have one
vote for each share so held, and (b) Ten Thousand (10,000) shares
of Preferred Stock of the par value of $100 per share, to be
issued in such classes, including one or more series within such
class, and to possess such specific terms including dividend
rates, conversion prices, voting rights, redemption prices,
maturity dates and other special rights, preferences,
qualifications, limitations, and restrictions thereof, as shall
be determined in the resolution or resolutions providing for the
issue of such Preferred Stock adopted by the Board of Directors
from time to time, and (c) Forty Thousand (40,000) shares of
Series A Junior Participating Preferred Stock of the par value of
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$100 per share, the relative rights, preferences and limitations
of which are as follows:
Section 1. Designation and Amount. The shares of
such series shall be designated as "Series A Junior
Participating Preferred Stock" (the "Series A Preferred
Stock") and the number of shares constituting the Series A
Preferred Stock shall be 40,000. Such number of shares may
be increased or decreased by resolution of the Board of
Directors; provided, that no decrease shall reduce the
number of shares of Series A Preferred Stock to a number
less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the
Corporation convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any
shares of any series of Preferred Stock (or any similar
stock) ranking prior and superior to the Series A Preferred
Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of
Common Stock, par value $1.00 per share (the "Common
Stock"), of the Corporation, and of any other junior stock,
shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds of the Corporation
legally available for the payment of dividends, quarterly
dividends payable in cash on March 31, June 30, September 30
and December 31 in each year (each such date being referred
to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share
of Series A Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $1 or (b)
subject to the provision for adjustment hereinafter set
forth, 1,000 times the aggregate per share amount of all
cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on
the Common Stock since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Series A Preferred
Stock. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision, combination
or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the
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amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under
the clause (b) of the preceding sentence shall be adjusted
by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares
a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock) and the
Corporation shall pay such dividend or distribution on the
Series A Preferred Stock before the dividend or distribution
declared on the Common Stock is paid or set apart; provided
that, in the event no dividend or distribution shall have
been declared on the Common Stock during the period between
any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1 per share
on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Preferred Stock
from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares, unless the date of issue of
such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case the dividends
on such shares shall begin to accrue from the date of issue
of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for
the determination of holders of shares of Series A Preferred
Stock entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares
of Series A Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date
shall be not more than 60 days prior to the date fixed for
the payment thereof.
Section 3. Voting Rights. The holders of shares of
Series A Preferred Stock shall have the following voting
rights:
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(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Preferred
Stock shall entitle the holder thereof to 1,000 votes on all
matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision, combination
or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of
Series A Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by
law, the holders of shares of Series A Preferred Stock and
the holders of shares of Common Stock shall vote together as
one class on all matters submitted to a vote of stockholders
of the Corporation.
(C) (i) If any time dividends on any Series A
Preferred Stock shall be in arrears in an amount equal to
six quarterly dividends thereon, the holders of the Series A
Preferred Stock, voting as a separate series from all other
series of Preferred Stock and classes of capital stock,
shall be entitled to elect two members of the Board of
Directors in addition to any Directors elected by any other
series, class or classes of securities and the authorized
number of Directors will automatically be increased by two.
Promptly thereafter, the Board of Directors of this
Corporation shall, as soon as may be practicable call a
special meeting of holders of Series A Preferred Stock for
the purpose of electing such members of the Board of
Directors. Said special meeting shall in any event be held
within 45 days of the occurrence of such arrearage.
(ii) During any period when the holders of
Series A Preferred Stock, voting as a separate series, shall
be entitled and shall have exercised their right to elect
two Directors, then and during such time as such right
continues (a) the then authorized number of Directors shall
be increased by two, and the holders of Series A Preferred
Stock, voting as a separate series, shall be entitled to
elect the additional Director so provided for, and (b) each
such additional Director shall not be a member of any
existing class of the Board of Directors, but shall serve
until the next annual meeting of stockholders for the
election of Directors, or until his successor shall be
elected and shall qualify, or until his right to hold such
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office terminates pursuant to the provisions of this Section
3(C).
(iii) A Director elected pursuant to the
terms hereof may be removed with or without cause by the
holders of Series A Preferred Stock entitled to vote in an
election of such Director.
(iv) If, during any interval between annual
meetings of stockholders for the election of Directors and
while the holders of Series A Preferred Stock shall be
entitled to elect two Directors, there is no such Director
in office by reason of resignation, death or removal, then,
promptly thereafter, the Board of Directors shall cause a
special meeting of the holders of Series A Preferred Stock
for the purpose of filling such vacancy and such vacancy
shall be filled at such special meeting. Such special
meeting shall in any event be held within 45 days of the
occurrence of such vacancy.
(v) At such time as the arrearage is fully
cured, and all dividends accumulated and unpaid on any
shares of Series A Preferred Stock outstanding are paid,
and, in addition thereto, at least one regular dividend has
been paid subsequent to curing such arrearage, the term of
office of any Director elected pursuant to this Section
3(C), or his successor, shall automatically terminate, and
the authorized number of Directors shall automatically
decrease by two, the rights of the holders of the shares of
the Series A Preferred Stock to vote as provided in this
Section 3(C) shall cease, subject to renewal from time to
time upon the same terms and conditions, and the holders of
shares of the Series A Preferred Stock shall have only the
limited voting rights elsewhere herein set forth.
(D) Except as set forth herein, or as otherwise
provided by law, holders of Series A Preferred Stock shall
have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking
any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other
dividends or distributions payable on the Series A Preferred
Stock as provided in Section 2 are in arrears, thereafter
and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series
A Preferred Stock outstanding shall have been paid in full,
the Corporation shall not:
(i) declare or pay dividends, or make any
other distributions, on any shares of stock ranking junior
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(either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any
other distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock ranking junior
(either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock, provided that
the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Stock;
or
(iv) redeem or purchase or otherwise
acquire for consideration any shares of Series A Preferred
Stock, or any shares of stock ranking on a parity with the
Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and
other relative rights and preferences of the respective
series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective
series or classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph
(A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series
A Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as
part of a new series of Preferred Stock subject to the
conditions and restrictions on issuance set forth herein or
in any other Certificate of Designations creating a series
of Preferred Stock or any similar stock or as otherwise
required by law.
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Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding
up of the Corporation, no distribution shall be made (1) to
the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock unless, prior thereto, the
holders of shares of Series A Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the
holders of shares of Series A Preferred Stock shall be
entitled to receive an aggregate amount per share, subject
to the provision for adjustment hereinafter set forth, equal
to 1,000 times the aggregate amount to be distributed per
share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except distributions made
ratably on the Series A Preferred Stock and all such parity
stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
(B) Neither the consolidation, merger or other
business combination of the Corporation with or into any
other corporation nor the sale, lease, exchange or
conveyance of all or any part of the property, assets or
business of the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation
for purposes of this Section 6.
(C) In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in
each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (1) of
paragraph (A) of this Section 6 shall be adjusted by
multiplying such amount by a fraction the numerator of which
is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 7. Consolidation, Merger, etc.
Notwithstanding anything to the contrary contained herein,
in case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the shares
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of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in
any such case each share of Series A Preferred Stock shall
at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate
amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount
set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock
shall be adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A
Preferred Stock shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock
shall rank, with respect to the payment of dividends and the
distribution of assets, junior to all series of any other
class of the Preferred Stock issued either before or after
the issuance of the Series A Preferred Stock, unless the
terms of such series shall provide otherwise.
Section 10. Amendment. The Certificate of
Incorporation of the Corporation shall not be amended in any
manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred
Stock so as to affect them adversely without the affirmative
vote of the holders of at least two-thirds of the
outstanding shares of Series A Preferred Stock, voting
together as a single class.
Section 11. Fractional Shares. Series A Preferred
Stock may be issued in fractions of a share which shall
entitle the holder, in proportion to such holder's
fractional shares, to exercise voting rights, receive
dividends, participate in distributions and have the benefit
of all other rights of holders of Series A Preferred Stock.
FIFTH: The minimum amount of capital with which the
Corporation will commence business is one thousand dollars
($1,000.00).
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SIXTH: The names and places of residence of each of the
incorporators are as follows:
Name Residence
---- ---------
David Simon 310 East 71st Street
New York 21, N.Y.
Lawrence Nirenstein 135-10 Grand Central Parkway,
Kew Gardens, N.Y.
David D. Brown, III 1350 Madison Avenue
New York 28, N.Y.
SEVENTH: The Corporation is to have perpetual existence.
EIGHTH: The private property of the stockholders shall not
be subject to the payment of corporate debts to any extent
whatever.
NINTH: The following provisions are inserted for the
management of the business and for the conduct of the affairs of
the Corporation, and for further definition, limitation and
regulation of the powers of the Corporation and of its directors
and stockholders:
(1) Directors need not be stockholders. Election of
directors need not be by ballot except only as the By-Laws may so
provide. Vacancies may be filled by the Board of Directors or by
the stockholders as shall be provided in the By-Laws.
(2) The Board of Directors shall have power to make, alter,
amend and repeal the By-Laws of the Corporation, subject only to
such limitations, if any, as may from time to time be imposed by
law or by the By-Laws.
(3) Subject to any provision of the By-Laws, the Board of
Directors shall have power from time to time to determine
whether, to what extent, at what times and places and under what
conditions and regulations the accounts, books and papers of the
Corporation (other than the stock ledger), or any of them, shall
be open to the inspection of the stockholders; and no stockholder
shall have any right to inspect any account, book or paper of the
Corporation except as conferred by statute or authorized by the
By-Laws or by the Board of Directors.
(4) No contract or other transaction between the
Corporation and any other corporation shall be void or voidable
because of the fact that any director of the Corporation is a
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director, officer, stockholder or creditor of such other
corporation, if such contract or other transaction shall be
approved or ratified by the affirmative vote of a majority of the
directors present at a meeting of the Board of Directors or any
committee of the Corporation having authority in the premises,
who are not so interested. Any director, individually, or any
firm of which any director is a partner may be a party to or may
be interested in any contract or other transaction of the
Corporation if such contract or other transaction shall be
approved or ratified by the affirmative vote of a majority of the
directors present at a meeting of the Board of Directors or any
committee of the Corporation having authority in the premises,
who are not so interested. No director shall be liable to
account to the Corporation for any profit realized by him from or
through any such contract or other transaction of the Corporation
ratified or approved as aforesaid, by reason of his interest in
such contract or other transaction. Directors so interested may
be counted when present at meetings of the Board of Directors or
of such committee for the purpose of determining the existence of
a quorum. Any director whose interest in any such contract or
other transaction arises solely by reason of the fact that he is
a director, officer, stockholder or creditor of such other
corporation, or solely by reason of the fact that he is a
partner, officer or creditor of such firm, when such contract or
other transaction is made or carried out by officers or employees
of the Corporation in the ordinary performance of their duties
and without the actual participation of such director, shall not
be deemed interested in such contract or other transaction under
any of the provisions of this Paragraph (4), nor shall any such
contract or other transaction be void or voidable, nor shall any
such director be liable to account because of such interest, nor
need any such interest be disclosed.
(5) Any contract, transaction or act of the Corporation or
the Board of Directors or of any committee which shall be
ratified by a majority of a quorum of the stockholders entitled
to vote at any annual meeting, or at any special meeting called
for the purpose, shall be as valid and binding as though ratified
by every stockholder of the Corporation; provided, however that
any failure of the stockholders to approve or ratify such
contract, transaction or act, when and if submitted, shall not of
itself be deemed in anyway to invalidate the same or to deprive
the Corporation, its directors or officers, of their right to
proceed with such contract, transaction or act.
(6) The Board of Directors shall have power from time to
time to fix and determine and to vary the amount to be reserved
as working capital, and, before the payment of any dividends or
the making of any distribution of profits, it may set aside out
of the net profits of the Corporation such sum or sums as it may,
from time to time and in its absolute discretion think proper as
additional working capital, or to meet contingencies, or for such
corporate purpose as the Board shall think conducive to the
interests of the Corporation, subject only to such limitations,
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if any, as the By-Laws of the Corporation may from time to time
impose.
(7) (a) The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (except
as otherwise provided herein), by reason of the fact that he is
or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or
officer of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement actually
and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful.
(b) In the case of any action or suit by or in the
right of the Corporation to procure a judgment in its favor, no
indemnification shall be made (i) except for expenses (including
attorneys' fees) or (ii) in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to
the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director or officer of the
Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
subsections (a) or (b), or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
(d) Any indemnification under subsections (a) or (b)
(unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of
conduct set forth in subsection (a) and (b). Such determination
shall be (i) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such
action, suit or proceeding, (ii) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders.
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(e) Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the
Corporation as authorized in this section.
(f) The indemnification and advancement of expenses
provided by this section shall not be deemed exclusive of any
other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of the heirs, executors
and administrators of such person.
(8) The Board of Directors shall have the power to
establish stock option, bonus, profit-sharing, pension or other
types in incentive, compensation or benefit plans for the
employees (including officers and directors) of the Corporation
and to fix the terms thereof and to determine the persons to
participate in any such plans and the amounts of their respective
participations, if any.
(9) (a) If any Person (an "Acquiring Person") (i) who
acquired any Common Stock pursuant to a Tender Offer becomes the
beneficial owner, directly or indirectly, of more than 50% of the
outstanding Common Stock or (ii) who is the beneficial owner,
directly or indirectly, of more than 50% of the outstanding
Common Stock becomes the beneficial owner, directly or
indirectly, of any additional shares of Common Stock pursuant to
a Tender Offer, each person who is then a Holder of Common Stock,
other than the Acquiring Person or a transferee of the Acquiring
Person shall have the right to have the Common Stock held by him
or her redeemed by the Corporation unless the Corporation, acting
through a majority of its Board of Directors, shall have
recommended that the Tender Offer be accepted, as contemplated in
clause (c).
(b) For the purposes of this Section 9:
(i) Person shall mean an individual,
corporation, partnership, trust or other entity. When two
or more persons act as a partnership, limited partnership,
syndicate or other group for the purpose of acquiring Common
Stock, the partnership, syndicate or group shall be deemed a
"Person".
(ii) A person shall be deemed to own
beneficially all Common Stock with respect to which that
person has the capability to control or influence the voting
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power or which that person has the immediate or future right
to acquire, directly or indirectly, pursuant to agreements,
through the exercise of options, warrants or rights or
through the conversion of convertible securities or
otherwise. All Common Stock which that person has the right
to acquire shall be deemed to be outstanding, but Common
Stock which any other person has the right to acquire shall
not be deemed to be outstanding.
(iii) A Holder on any date shall mean a person
who is the record owner of Common Stock on that date or who
becomes the record owner of Common Stock within 30 days
after that date pursuant to the exercise of an option, right
or warrant outstanding on that date or the conversion of
convertible securities outstanding on that date.
(iv) Tender Offer shall mean an offer to acquire
shares for cash, securities or any other consideration or an
acquisition pursuant to a request or invitation for tender.
(c) Within 10 days after any Person makes a Tender
Offer, the Corporation, acting through its Board of Directors,
shall determine whether to recommend to the Holders acceptance of
the Tender Offer. If the Corporation fails so to recommend
acceptance, within 20 days after the Corporation receives notice
that any Person has become an Acquiring Person, the Corporation
shall advise each person who, on the date the person became an
Acquiring Person, was a Holder or a potential Holder (by first
class mail, postage prepaid, at the address shown on the records
of the Corporation) of the right to have his or her shares
redeemed and the procedures for such redemption. In the event
that the Corporation fails to give notice as required by this
clause (c), any Holder may serve written demand upon the
Corporation to give such notice. If within 20 days after the
receipt of written demand the Corporation fails to give the
required notice, that Holder may at the expense and on behalf of
the Corporation take such reasonable action as may be appropriate
to give notice or to cause notice to be given pursuant to this
clause (c). The Directors of the Corporation shall designate a
redemption agent (the "Redemption Agent"), which shall be a
corporation or association (i) organized and doing business under
the laws of the United States of America or any State, (ii)
subject to supervision or examination by Federal or State
authority, (iii) having combined capital and surplus of at least
$5,000,000 and (iv) having the power to exercise corporate trust
powers. For a period of 30 days from the date of the mailing of
the notice to the Holders and potential Holders, any Holder may,
at his or her option, deposit with the Redemption Agent
certificates representing all or less than all shares of Common
Stock held of record by him or her and written notice that the
Holder elects to have those shares redeemed pursuant to this
Section 9. Redemption shall be deemed to have been effected at
the close of business on the day such certificates are deposited
in proper form with the Redemption Agent. The Corporation shall
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promptly deposit in trust with the Redemption Agent cash in an
amount equal to the Aggregate Redemption Price of all of the
Common Stock deposited with the Redemption Agent for purposes of
redemption. As soon as practicable after receipt by the
Redemption Agent of the cash deposited by the Corporation
referred to in this clause (c), the Redemption Agent shall issue
its checks payable to the order of the Holders entitled to
receive the Redemption Price of the Common Stock in respect of
which such case deposit was made.
(d) The Redemption Price shall be the greater of the
following amounts:
(i) The highest price per share, including any
commission paid to brokers or dealers, at which shares of
Common Stock held by the Acquiring Person were acquired
pursuant to a Tender Offer within 18 months prior to the
notice to Holders referred to in clause (c). If the
consideration paid in any such acquisition of Common Stock
consisted, in whole or part, of consideration other than
cash, the Board of Directors of the Corporation shall take
such action, as in its judgment it deems appropriate, to
establish the cash value of such consideration, but the
value shall not be less than the cash value, if any,
ascribed to such consideration by the Acquiring Person.
(ii) The book value per share of Common Stock,
as determined in accordance with generally accepted
accounting principles and as reflected in any published
report by the Corporation as at the fiscal-year quarter
ending immediately preceding the notice to Holders referred
to in clause (c).
TENTH: No stockholder of this Corporation shall have any
preemptive right to purchase or subscribe for any part of any new
or additional issue of stock, convertible securities, warrants or
options, whether now or hereafter authorized and whether to be
issued for money, property, services or otherwise.
ELEVENTH: A. Except as otherwise provided by Paragraph B
of this Article ELEVENTH, the votes of the holders of 66-2/3% of
the shares of stock then entitled to vote for the election of
directors of the Corporation ("Voting Stock") shall be required
for any of the following actions:
(1) merge the Corporation into another corporation or
other business entity;
(2) merge another corporation or other business entity
into the Corporation;
(3) consolidate with another corporation or other
business entity;
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(4) sell, exchange, lease or otherwise transfer all or
substantially all of the Corporation's assets to
any other person;
(5) dissolve;
(6) amend the Corporation's Certificate of
Incorporation; or
(7) amend the Corporation's By-laws or ratify the
amendment thereof by the Corporation's Board of
Directors.
B. If any corporation or other business entity,
together with all affiliates thereof, owns beneficially, directly
or indirectly, 25% or more of the outstanding Common Stock (a
"Related Entity"), the vote of the holders of 85% of all shares
of the Voting Stock exclusive of all shares the Voting Stock held
by Related Entities shall be required for any of the following
actions:
(1) merge the Corporation into a Related Entity;
(2) merge a Related Entity into the Corporation;
(3) consolidate with a Related Entity;
(4) sell, exchange, lease or otherwise transfer all or
substantially all of the Corporation's assets to a
Related Entity;
(5) acquire an interest in a Related Entity through
the issuance of the Corporation's stock, exchange
of Corporation's assets or otherwise;
(6) enter into any agreement to take any of the
actions contemplated by the immediately preceding
clauses 1 through 5;
(7) any further amendment of the Corporation's
Certificate of Incorporation relating to the
actions contemplated by the immediately preceding
clauses 1 through 6 or amendment of the
Corporation's By-laws or ratify the amendment
thereof by the Corporation's Board of Directors in
such regard.
For the purpose of this Article ELEVENTH, an "affiliate" of
any entity shall be any person which controls, is controlled by
or is under common control with that entity, and any officer or
director of that entity or any other affiliate thereof and any
person which owns beneficially, directly or indirectly, 10% or
more of any class of equity securities of that entity or any
other affiliate thereof.
19
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TWELFTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this
Certificate of Incorporation in the manner now or hereafter
prescribed by law, and all rights conferred herein on
stockholders are subject to this reserved power.
THIRTEENTH: No director of the Corporation shall be
personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director;
provided, however, that this provision shall not eliminate or
limit the liability of a director to the extent provided by
applicable law (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under section
174 of the General Corporation Law of the State of Delaware, or
(iv) for any transaction from which the director derived an
improper personal benefit. The foregoing provisions of this
Article shall not eliminate the liability of a director for any
act or omission occurring prior to the date on which this Article
becomes effective. No amendment to or repeal of this Article
shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect
to any acts or omissions of such director occurring prior to such
amendment or repeal."
IN WITNESS WHEREOF, said Thermo Electron Corporation has
caused this certificate to be signed by George N. Hatsopoulos,
its Chairman and President, and attested by Sandra L. Lambert,
its Secretary, this 13th day of June, 1994.
THERMO ELECTRON CORPORATION
By: George N. Hatsopoulos
Chairman and President
ATTEST:
By: Sandra L. Lambert
Secretary
EXHIBIT 5.1
THERMO ELECTRON CORPORATION
81 Wyman Street
Waltham, MA 02254
June 28, 1994
Thermo Electron Corporation
81 Wyman Street
Waltham, MA 02254-9046
Re: Registration Statement on Form S-8 Relating to 600,000
Shares of the Common Stock, $1.00 par value, of Thermo
Electron Corporation
Dear Sirs:
I am General Counsel to Thermo Electron Corporation, a
Delaware corporation (the "Company"), and have acted as counsel
in connection with the registration under the Securities Act of
1933, as amended, on Form S-8 (the "Registration Statement"), of
600,000 shares of the Company's Common Stock, $1.00 par value per
share (the "Shares").
I or a member of my staff have reviewed the corporate
proceedings taken by the Company with respect to the
authorization of the issuance of the Shares. I or a member of my
staff have also examined and relied upon originals or copies,
certified or otherwise authenticated to my satisfaction, of all
corporate records, documents, agreements or other instruments of
the Company and have made all investigations of law and have
discussed with the Company's representatives all questions of
fact that I have deemed necessary or appropriate.
Based upon and subject to the foregoing, I am of the opinion
that:
1. The Company is a corporation duly organized, validly
existing and in corporate good standing under the laws of the
State of Delaware.
2. The issuance and sale of the Shares as contemplated in
the Registration Statement have been duly authorized by the
Company.
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3. The Shares, when issued and sold in accordance with the
provisions of the Thermo Electron Corporation MoneyMatch Plus
Plan will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit
5.1 to the Registration Statement.
Very truly yours,
Seth H. Hoogasian
General Counsel
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference of our reports dated February 17, 1994
incorporated by reference in Thermo Electron Corporation's Form
10-K for the year ended January 1, 1994 and to all references to
our Firm included in this registration statement.
ARTHUR ANDERSEN & CO.
Boston, Massachusetts
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our
report dated May 27, 1993 included in Thermo Electron Corporation
MoneyMatch Plus Plan's Annual Report on Form 11-K for the year
ended December 31, 1992.
ARTHUR ANDERSEN & CO.
Boston, Massachusetts
