SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3 TO FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Thermo Electron Corporation
(Exact Name of Corporation as Specified in its Charter)
Delaware 04-2209186
(State of Incorporation or (I.R.S. Employer
Organization) Identification No.)
81 Wyman Street, P.O. Box 9046, Waltham, Massachusetts 02454-9046
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [ ]
Securities Act registration statement file number to which this form relates:
N/A (If applicable)
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 value New York Stock Exchange
$1.00 per share
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
The authorized capital stock of Thermo Electron Corporation (the
"Corporation") consists of 350,000,000 shares of common stock, $1.00 par value
per share (the "Common Stock"), and 50,000 shares of preferred stock, par value
$100 per share (the "Preferred Stock"). The following description of the capital
stock of the Corporation is qualified in its entirety by reference to the
Corporation's Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") and Bylaws, as amended (the "Bylaws"), copies of
which are filed herewith or incorporated by reference from documents filed with
the Securities and Exchange Commission.
Common Stock
Holders of Common Stock are entitled to one vote per share on all matters
to be voted upon by the stockholders. There are no cumulative voting rights. The
holders of Common Stock have no preemptive rights or rights to convert their
Common Stock into any other securities. The Common Stock is not subject to
redemption. Upon any liquidation, distribution or sale of assets, dissolution or
winding up of the Corporation, the holders of Common Stock are entitled to share
pro rata in the assets of the Corporation available for distribution after
provision for the payment of creditors and subject to the preferential rights of
any then outstanding Preferred Stock. The outstanding shares of Common Stock are
fully paid and nonassessable. There are no restrictions on transferability
contained in the Certificate of Incorporation or Bylaws. Holders of Common Stock
are entitled to receive ratably such dividends as may be declared by the Board
of Directors out of funds legally available therefor. The Common Stock is listed
on the New York Stock Exchange.
Preferred Stock
The Corporation's Board of Directors may, without further action of the
Corporation's stockholders, issue up to 50,000 shares of Preferred Stock, in one
or more classes and one or more series and fix the number of shares constituting
any such class or series. In connection with the Corporation's adoption of a
shareholder rights plan as described in "Preferred Share Purchase Rights" below,
the Corporation filed a Certificate of Designation on January 31, 1996, in order
to designate 40,000 shares of the Preferred Stock as Series B Junior
Participating Preferred Stock, par value $100 per share. The Board may fix the
rights and preferences of any class or series of the remaining 10,000 shares of
Preferred Stock, including dividend rights, dividend rates, conversion rights,
voting rights, terms of redemption (including sinking fund provisions), maturity
dates, redemption prices and liquidation preferences. The rights of the holders
of Common Stock will be subject to, and may be adversely affected by, the rights
of holders of any Preferred Stock that may be issued in the future. Issuance of
Preferred Stock could have the effect of making it more difficult for a third
party to acquire, or of discouraging a third party from acquiring, a majority of
the outstanding voting stock of the Corporation.
<PAGE>
Preferred Share Purchase Rights
In January, 1996, pursuant to the adoption by the Corporation of a
shareholder rights plan, the Board of Directors of the Corporation declared a
dividend distribution of one right (a "Right") for each outstanding share of
Common Stock to stockholders of record at the close of business on January 29,
1996. Please see Item 1 to the Corporation's Registration Statement on Form 8-A,
as amended, relating to the Rights, as filed with the Securities and Exchange
Commission, and the Rights Agreement, as amended, between the Corporation and
BankBoston, N.A. as Rights Agent, filed as an exhibit to such Registration
Statement on Form 8-A, for a description and terms of the Rights and the Series
B Junior Participating Preferred Stock issuable upon exercise of the Rights.
Certain Charter, By-Law and Statutory Provisions
Certain provisions, described below, of the Certificate of Incorporation,
the Bylaws and Section 203 of the General Corporation Law of the State of
Delaware (discussed below) could have the effect, either alone or in combination
with each other, of delaying, deferring or preventing a change in control of the
Corporation.
The Bylaws provide that special meetings of stockholders may be called
only by the Corporation's Board of Directors, its Chairman of the Board, or its
Chief Executive Officer. Stockholders are not authorized by the Bylaws to call a
special meeting or to require that the Board of Directors call a special meeting
of stockholders. Moreover, the business permitted to be conducted at any special
meeting of stockholders is limited to matters relating to the purpose or
purposes stated in the notice of meeting. Advance notice of stockholder
nominations for directors and any other stockholder proposals to be brought
before meetings of stockholders is required to be given in writing to the
Secretary of the Corporation within the time periods and following the
procedures set forth in the Bylaws.
The Certificate of Incorporation includes a provision eliminating the
liability of its directors to the Corporation or to its stockholders for
monetary damages for breaches of fiduciary duty by such directors, to the extent
permitted by Delaware law. In addition, the Certificate of Incorporation
contains provisions providing for the indemnification of the Corporation's
officers and directors to the maximum extent permitted by Delaware law from
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such persons by reason of their being officers or
directors of the Corporation.
The Bylaws divide the Corporation's Board of Directors into three classes,
as nearly equal in number as possible. If the number of directors is changed,
any increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly as equal as possible.
Each director is elected for a three year term. The classified structure of the
Board could have the effect of delaying a change in control of the Corporation
because all directors' terms do not expire at the same time. Consequently, a
change in control could not occur until new directors had been elected at two
successive annual meetings of stockholders (assuming none of the directors
resign before an annual meeting).
<PAGE>
The Bylaws require a vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the shares of capital stock of the Corporation
issued and outstanding and entitled to vote in order to alter, amend or repeal,
or make any new Bylaws inconsistent with, Article II (governing the activities
of the Directors of the Corporation, including the classification of the Board)
and Article VI (governing amendments to the Bylaws) of the Bylaws. This
supermajority voting provision for changes by stockholders affecting Articles II
or VI of the Bylaws does not affect the ability of the Corporation's Board of
Directors to amend either of such sections.
Section 203 of Delaware General Corporation Law
The Corporation is subject to Section 203 of the General Corporation Law
of the State of Delaware ("Section 203"), which generally prohibits any Delaware
corporation that has a class of securities listed on a national securities
exchange or more than 2,000 stockholders of record from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the date of the transaction in which the person becomes an interested
stockholder, unless either (i) the interested stockholder obtains the approval
of the Board of Directors prior to becoming an interested stockholder, (ii) the
interested stockholder owned 85% of the outstanding voting stock of the
corporation (excluding shares held by certain affiliates of the corporation) at
the time he became an interested stockholder or (iii) the business combination
is approved by both the Board of Directors and the holders of two-thirds of the
outstanding voting stock of the corporation (excluding shares held by the
interested stockholder), voting at an annual or special meeting of the
stockholders and not acting by written consent. An "interested stockholder"
generally is a person who, together with affiliates and associates, owns (or at
any time within the prior three years did own) 15% or more of the corporation's
outstanding voting stock. A "business combination" includes mergers,
consolidations, stock sales, asset sales and other transactions involving the
corporation or any direct or indirect majority-owned subsidiary of the
corporation that results in a financial benefit to the interested stockholder.
In addition, by virtue of the Corporation's majority ownership of several
publicly traded Delaware subsidiaries (each of which is also subject to Section
203 with regard to stockholders other than the Corporation and its affiliates),
a transaction which results in a person becoming an interested stockholder of
the Corporation may also result in that person becoming an interested
stockholder in each of the Corporation's publicly traded Delaware subsidiaries.
In such event, the person becoming an interested stockholder of the Corporation
would also have to comply with Section 203, which could require obtaining the
consent of each affected subsidiary's Board of Directors and/or stockholders
(other than the interested stockholder), in order to avoid the three-year
prohibition on transactions between itself as an interested stockholder and each
of the Corporation's majority-owned, publicly traded Delaware subsidiaries. In
the event such consent is not obtained, the interested stockholder could find it
difficult to manage the business of each of the affected subsidiaries. This need
to acquire consent of the affected subsidiaries' Boards of Directors and/or
stockholders for Section 203 purposes imposes a substantial burden on a
potential acquiror and could therefore act as an anti-takeover device.
<PAGE>
Item 2. Exhibits.
1. Amended and Restated Certificate of Incorporation of the Corporation.
2. Bylaws of the Corporation, as amended (filed as Exhibit 3 to the
Corporation's Quarterly Report on Form 10-Q for the quarter ended July 3, 1999
[File No. 1-8002] and incorporated herein by reference).
3. Specimen Common Stock Certificate.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Corporation has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
THERMO ELECTRON CORPORATION
By: /s/ Theo Melas-Kyriazi
------------------------------------
Theo Melas-Kyriazi
Vice President and Chief
Financial Officer
Date: September 9, 1999
<PAGE>
Exhibit 1- Amended and Restated Certificate of Incorporation
THIRD AMENDED AND RESTATED
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. An Amended and Restated Certificate of Incorporation (the "Amended and
Restated Certificate of Incorporation") was filed with the Secretary of State on
June 21, 1994.
2. That Article THIRD of the Amended and Restated Certificate of
Incorporation is amended by deleting said Article in its entirety and inserting
in lieu thereof the following text:
"THIRD: The nature of the business or purposes to be conducted or
promoted by the Corporation is as follows:
To engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware."
3. That Article FOURTH of the Amended and Restated Certificate of
Incorporation is amended by:
(a) in the first paragraph, inserting the word "and' immediately
after the text: "one vote for each share so held," and
immediately before the text: "(b)";
(b) in the first paragraph, deleting the text: "Ten Thousand
(10,000)" and inserting in lieu thereof the text "Fifty
Thousand (50,000)";
(c) in the first paragraph, deleting the text: "; and (c)" and
inserting in lieu thereof the text: ". Pursuant to a
Certificate of Designation filed on January 31, 1996";
<PAGE>
(d) in the first paragraph, inserting the text; "Preferred Stock
has been designated as" immediately after the text: "Forty
Thousand shares of" and immediately before the text: "Series
B Junior Participating Preferred Stock";
(e) inserting in the second line of paragraph (A) of Section 4,
the word "above" after the text "Section 2"; and
(f) deleting in the eighteenth line of paragraph (C) of Section
6, the reference to "this Section 4" and inserting in lieu
thereof the reference to "this Section 6".
4. That Articles FIFTH, SIXTH, SEVENTH, EIGHTH, TENTH, and ELEVENTH of the
Amended and Restated Certificate of Incorporation are amended by deleting said
Articles in their entirety.
5. That Article NINTH of the Amended and Restated Certificate of
Incorporation is amended by:
(a) deleting the first and last sentences of paragraph (1);
(b) deleting paragraph (2) in its entirety and inserting in lieu
thereof the following text:
"(2) In furtherance of and not in limitation of powers
conferred by statute, it is further provided that the Board of
Directors is expressly authorized to adopt, amend or repeal
the By-Laws of the Corporation.";
(c) deleting paragraphs (3), (4), (5), (6), (8) and (9) in their
entirety;
(d) inserting in paragraph (7) the words "or her" after each
appearance of the word "his" in said paragraph, inserting
the words "or she" after each appearance of the word "he" in
said paragraph, and inserting the words "or her" after each
appearance of the word "him" in said paragraph; and
(e) renumbering paragraph (7) as paragraph (3).
6. That Article NINTH is renumbered as Article FIFTH and Article TWELFTH
is renumbered as Article SIXTH.
7. That Article THIRTEENTH is amended by deleting such Article in its
entirety and inserting in lieu thereof the following text:
<PAGE>
"SEVENTH: Except to the extent that the General Corporation
Law of Delaware prohibits the elimination or limitation of liability
of directors for breaches of fiduciary duty, no director of the
Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty
as a director notwithstanding any provision of law imposing such
liability. 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."
8. That the Board of Directors of the Corporation at a meeting held on
March 18, 1999, duly adopted the following resolutions:
RESOLVED: That it is hereby declared advisable and in the best
interests of the Corporation that the Corporation's Amended and
Restated Certificate of Incorporation be further amended and
restated in the form distributed at this meeting and attached to
these resolutions as Exhibit A 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
the Third Amended and Restated Certificate of Incorporation to
reflect such amendment and restatement, and to file, or cause to
be filed, such Third Amended and Restated Certificate of
Incorporation with the Secretary of State of the State of
Delaware.
FURTHER RESOLVED: That the proposed amendment and restatement of
the Corporation's Amended and Restated Certificate of
Incorporation be considered by the Stockholders of the
Corporation at the Annual Meeting of Stockholders to be held on
May 27, 1999 and that the notice of such meeting shall include as
an attachment the proposed Third Amended and Restated Certificate
of Incorporation in its entirety.
9. That, on May 27, 1999, at the Corporation's Annual Meeting of
Stockholders, the amendment and restatement of the Corporation's Amended and
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 Sections 222 and 242 of the General Corporation Law of the
State of Delaware and Article ELEVENTH of the Corporation's Amended and Restated
Certificate of Incorporation.
10. Except as set forth above, this Third Amended and Restated Certificate
of Incorporation only restates and integrates and does not further amend the
provisions of the Amended and 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 Third Amended and Restated
Certificate of Incorporation. This Third Amended and Restated Certificate of
Incorporation was duly adopted pursuant to Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
<PAGE>
11. The text of the Amended and Restated Certificate of Incorporation as
amended or supplemented heretofore is hereby further amended and restated to
read as herein set forth in full:
"THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THERMO ELECTRON CORPORATION
FIRST: The name of the Corporation is
THERMO ELECTRON CORPORATION
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 or purposes to be conducted or promoted
by the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is: (a) Three Hundred Fifty Million (350,000,000) 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. Pursuant to a Certificate
of Designation filed on January 31, 1996, Forty Thousand (40,000) shares of
Preferred Stock has been designated as Series B Junior Participating Preferred
Stock of the par value of $100 per share, the relative rights, preferences and
limitations of which are as follows:
<PAGE>
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series B Junior Participating Preferred Stock" (the "Series
B Preferred Stock") and the number of shares constituting the Series B
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 B 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 B 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 B Preferred Stock with respect to dividends, the holders of
shares of Series B 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 B
Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $100 or (b) subject to the provision for
adjustment hereinafter set forth, 10,000 times the aggregate per share
amount of all cash dividends, and 10,000 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 B 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 amount to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event under 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. In the event the Corporation shall at any
time declare or pay any dividend on the Series B Preferred Stock payable
in shares of Series B Preferred Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Series B
<PAGE>
Preferred Stock (by reclassification or otherwise than by payment of a
dividend in shares of Series B Preferred Stock) into a greater or lesser
number of shares of Series B Preferred Stock, then in each such case the
amount to which holders of shares of Series B Preferred Stock were
entitled immediately prior to such event under clause (b) of the first
sentence of this Section 2(A) shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Series B
Preferred Stock that were outstanding immediately prior to such event and
the denominator of which is the number of shares of Series B Preferred
Stock outstanding immediately after such event.
(B) The Corporation shall declare a dividend or distribution on the
Series B 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 B
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 $100 per share on the
Series B 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 B 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 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 B 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 B 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 B 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 B Preferred Stock
shall have the following voting rights:
<PAGE>
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series B Preferred Stock shall entitle the holder thereof to
10,000 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 B 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. In the event the Corporation shall at any
time declare or pay any dividend on the Series B Preferred Stock payable
in shares of Series B Preferred Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Series B
Preferred Stock (by reclassification or otherwise than by payment of a
dividend in shares of Series B Preferred Stock) into a greater or lesser
number of shares of Series B Preferred Stock, then in each such case the
number of votes per share to which holders of shares of Series B Preferred
Stock were entitled immediately prior to such event shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Series B Preferred Stock that were outstanding
immediately prior to such event and the denominator of which is the number
of shares of Series B Preferred Stock outstanding immediately after such
event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series B Preferred Stock and the holders of shares of Common
Stock and any other capital stock of the Corporation having general voting
rights shall vote together as one class on all matters submitted to a vote
of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series B Preferred Stock
shall be in arrears in an amount equal to six quarterly dividends thereon,
the holders of the Series B 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 B 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.
<PAGE>
(ii) During any period when the holders of Series B 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 B Preferred Stock, voting as a
separate series, shall be entitled to elect the additional Directors 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 or her successor shall be elected and shall qualify, or until
his or her right to hold such 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 B 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
B 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 call a special meeting
of the holders of Series B 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 B 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 or
her 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 B 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 B
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 B 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 B Preferred Stock as provided in Section 2 above are
in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series B Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:
<PAGE>
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B 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
B Preferred Stock, except dividends paid ratably on the Series B 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 B 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 B Preferred
Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series B Preferred Stock, or any shares of stock ranking on
a parity with the Series B 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 B Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled 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 Designation
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
<PAGE>
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 B Preferred Stock unless, prior
thereto, the holders of shares of Series B 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 B Preferred
Stock shall be entitled to receive an aggregate amount per share, subject
to the provision for adjustment hereinafter set forth, equal to 10,000
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 B Preferred Stock, except distributions made
ratably on the Series B 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 B 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. In the event the Corporation shall at any
time declare or pay any dividend on the Series B Preferred Stock payable
in shares of Series B Preferred Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Series B
Preferred Stock (by reclassification or otherwise than by payment of a
dividend in shares of Series B Preferred Stock) into a greater or lesser
number of shares of Series B Preferred Stock, then in each such case the
aggregate amount to which holders of shares of Series B 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 Series B Preferred Stock that were outstanding immediately prior to
such event and the denominator of which is the number of shares of Series
B Preferred Stock outstanding immediately after such event.
<PAGE>
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 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 B 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 10,000 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 B 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. In the event the Corporation
shall at any time declare or pay any dividend on the Series B Preferred
Stock payable in shares of Series B Preferred Stock, or effect a
subdivision, combination or consolidation of the outstanding shares of
Series B Preferred Stock (by reclassification or otherwise than by payment
of a dividend in shares of Series B Preferred Stock) into a greater or
lesser number of shares of Series B Preferred Stock, then in each such
case the amount set forth in the first sentence of this Section 7 with
respect to the exchange or change of shares of Series B Preferred Stock
shall be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Series B Preferred Stock that were
outstanding immediately prior to such event and the denominator of which
is the number of shares of Series B Preferred Stock outstanding
immediately after such event.
Section 8. No Redemption. The shares of Series B Preferred Stock shall not
be redeemable.
Section 9. Rank. The Series B 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 B Preferred Stock, unless the terms of
any 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 B 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 B Preferred
Stock, voting together as a single class.
Section 11. Fractional Shares. Series B 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 B Preferred Stock.
FIFTH: 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) Election of directors need not be by ballot except only as the
By-Laws may so provide.
(2) In furtherance of and not in limitation of powers conferred by
statute, it is further provided that the Board of Directors is
expressly authorized to adopt, amend or repeal the By-Laws of the
Corporation.
(3) (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 or she 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 or her in
connection with such action, suit or proceeding if he or she acted
in good faith and in a manner he or she 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 or her 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.
<PAGE>
(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 or she shall be
indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him or her 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 or she
has met the applicable standard of conduct set forth in subsections
(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.
(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 or she 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 or
her 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.
SIXTH: 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.
SEVENTH: Except to the extent that the General Corporation Law of Delaware
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty, no director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director notwithstanding any provision of law imposing such
liability. 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."
<PAGE>
IN WITNESS WHEREOF, said Thermo Electron Corporation has caused this
certificate to be signed by George N. Hatsopoulos, its Chairman and Chief
Executive Officer, and attested by Sandra L. Lambert, its Secretary, this 28th
day of May, 1999.
THERMO ELECTRON CORPORATION
By: /s/ George N. Hatsopoulos
Chairman and Chief Executive Officer
ATTEST:
By: /s/ Sandra L. Lambert
------------------------------
Secretary
<PAGE>
Exhibit 3 - Specimen Common Stock Certificate
[FRONT OF STOCK CERTIFICATE]
THERMO ELECTRON CORPORATION
This certificate is transferable in New York City of Boston Common Stock
Par Value $1.
Incorporated under the laws of the State of Delaware
CUSIP 883556 10 2
See reverse for certain definitions
THIS CERTIFIES THAT
is the owner of
FULLY-PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
THERMO ELECTRON CORPORATION, transferable on the books of the Corporation by the
holder hereof in person or by duly authorized attorney, upon surrender of this
certificate properly endorsed. This certificate and the shares represented
hereby are issued and shall be held subject to the laws of the State of Delaware
and the Certificate of Incorporation and the By-Laws of the Corporation, as the
same may be from time to time amended, to all of which the holder by acceptance
hereof assents. This certificate is not valid unless countersigned by the
Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
Dated:
[THERMO ELECTRON CORPORATION ]
[Corporate Seal]
/s/ Sandra L. Lambert /s/ George N. Hatsopoulos
- ------------------------- ---------------------------------
Secretary Chairman
Countersigned and Registered:
BankBoston, N.A.
Transfer Agent and Registrar
By:_______________________________________
Authorized Signature
<PAGE>
[BACK OF STOCK CERTIFICATE]
THERMO ELECTRON CORPORATION
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Rights Agreement between Thermo Electron Corporation
(the "Company") and The First National Bank of Boston (the "Rights Agent"), the
terms of which are hereby incorporated herein by reference and a copy of which
is on file at the principal offices of the Company. Under certain circumstances,
as set forth in the Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate. The Company
will mail to the holder of this certificate a copy of the Rights Agreement, as
in effect on the date of mailing, without charge promptly after receipt of a
written request therefor. Under certain circumstances set forth in the Rights
Agreement, Rights issued to, or held by, any Person who is, was or becomes an
Acquiring Person or any Affiliate or Associates thereof (as such terms are
defined in the Rights Agreement), whether currently held by or on behalf of such
Person or by any subsequent holder, may become null and void.
For value received, __________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
____________________________________________________ Shares of the capital stock
represented by the within Certificate, and do hereby irrevocably constitute and
appoint ________________________________________________________________________
Attorney to transfer the said stock on the books of the within-named Corporation
with full power of substitution in the premises.
Dated, _______________________________
----------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the Certificate in every particular, without alteration
or enlargement, or any change whatever.
Signature(s) Guaranteed:
- -----------------------------------------
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
