SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 2
FORM 8-A/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
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-2209186
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(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
81 Wyman Street, Waltham, MA 02454
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(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. / /
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:______________
(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
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Preferred Stock Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
This Amendment No. 2 to Registration Statement on Form 8-A/A amends and
restates the Registration Statement on Form 8-A dated January 25, 1996, as
amended by Amendment No. 1 to Registration Statement on Form 8-A/A dated May 29,
1997 (as amended, the "Form 8-A"), filed by Thermo Electron Corporation (the
"Company") with respect to the Rights Agreement (as amended from time to time,
the "Rights Agreement") dated as of January 19, 1996 between the Company and
BankBoston, N.A. (formerly, The First National Bank of Boston), as Rights Agent.
As of June 11, 1999, the Company and the Rights Agent entered into Amendment No.
1 to Rights Agreement ("Amendment No. 1"), which is included as Exhibit 2 hereto
and is incorporated herein by reference. Capitalized terms used but not defined
herein shall have the meaning ascribed to such terms in the Rights Agreement.
Amendment No. 1 amends various provisions of the Rights Agreement to, among
other things, eliminate the concept of "Continuing Directors."
Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Item 1 of this Registration Statement is hereby amended and restated as
follows:
On January 19, 1996, the Board of Directors of the Company declared a
dividend distribution of one Right for each outstanding share of the Company's
Common Stock to stockholders of record at the close of business on January 29,
1996. Each Right entitles the registered holder to purchase from the Company a
unit consisting of one ten-thousandth of a share (a "Unit") of Series B Junior
Participating Preferred Stock, $100 par value (the "Preferred Stock") at a
Purchase Price of $250.00 in cash per Unit, subject to adjustment. The
description and terms of the Rights are set forth in the Rights Agreement.
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of Common Stock (the "Stock
Acquisition Date"), or (ii) 10 business days following the commencement of a
tender offer or exchange offer that would result in a person or group
beneficially owning 15% or more of such outstanding shares of Common Stock.
Until the Distribution Date, (i) the Rights will be evidenced by the Common
Stock certificates and will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates will contain a notation
incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any certificates for Common Stock outstanding will also constitute
the transfer of the Rights associated with the Common Stock represented by such
certificate.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on January 29, 2006, unless earlier redeemed or
exchanged by the Company as described below.
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As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise determined by
the Board of Directors and except in connection with shares of Common Stock
issued upon the exercise of employee stock options, issuances under other
employee stock benefit plans or issuances upon the exercise, conversion or
exchange of securities issued prior to the Distribution Date, only shares of
Common Stock issued prior to the Distribution Date will be issued with Rights.
In the event that a Person becomes the beneficial owner of 15% or more of
the then outstanding shares of Common Stock, except pursuant to an offer for all
outstanding shares of Common Stock that at least a majority of the Board of
Directors determines to be fair to, and otherwise in the best interests of,
stockholders, each holder of a Right will thereafter have the right to receive,
upon exercise, that number of shares of Common Stock (or, in certain
circumstances, cash, property or other securities of the Company) which equals
the exercise price of the Right divided by one-half of the current market price
(as defined in the Rights Agreement) of the Common Stock at the date of the
occurrence of the event. However, Rights are not exercisable following the event
set forth above until such time as the Rights are no longer redeemable by the
Company as set forth below. Notwithstanding any of the foregoing, following the
occurrence of such event, all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person will be null and void. The event set forth in this paragraph is referred
to as "Section 11(a)(ii) Event."
For example, at an exercise price of $250.00 per Right, each Right not
owned by an Acquiring Person (or by certain related parties) following an event
set forth in the preceding paragraph would entitle its holder to purchase for
$250.00 such number of shares of Common Stock (or other consideration, as noted
above) as equals $250.00 divided by one-half of the current market price (as
defined in the Rights Agreement) of the Common Stock. Assuming that the Common
Stock had a per share value of $50.00 at such time, the holder of each valid
Right would be entitled to purchase ten shares of Common Stock for $250.00.
In the event that, at any time after any person has become an Acquiring
Person, (i) the Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation or its Common
Stock is changed or exchanged (other than a merger which follows an offer
determined by the Board of Directors to be fair as described in the first
sentence of the second preceding paragraph), or (ii) 50% or more of the
Company's assets or earning power is sold or transferred, each holder of a Right
(except Rights which previously have been voided as set forth above) shall
thereafter have the right to receive, upon exercise, that number of shares of
common stock of the acquiring company which equals the exercise price of the
Right divided by one-half of the current market price of such common stock at
the date of the occurrence of the event.
For example, at an exercise price of $250.00 per Right, each Right
following an event set forth in the preceding paragraph would entitle its holder
to purchase for $250.00 such number of shares of common stock of the acquiring
company as equals $250.00 divided by one-half of the current market price (as
defined in the Rights Agreement) of such common stock. Assuming that such common
stock had a per share value of $100.00 at such time, the holder of each valid
Right
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would be entitled to purchase five shares of common stock of the acquiring
company for $250.00.
At any time after the occurrence of a Section 11(a)(ii) Event, the Board of
Directors of the Company may exchange the Rights (other than Rights owned by
such Acquiring Person that have become void), in whole or in part, at an
exchange ratio of one share of Common Stock, or one ten-thousandth of a share of
Preferred Stock (or of a share of a class or series of the Company's preferred
stock having equivalent rights, preferences and privileges), per Right (subject
to adjustment).
The Purchase Price payable, and the number of Units of Preferred Stock or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Stock, (ii) if holders of the Preferred Stock are granted certain rights or
warrants to subscribe for Preferred Stock or convertible securities at less than
the current market price of the Preferred Stock, or (iii) upon the distribution
to holders of the Preferred Stock of evidences of indebtedness or assets
(excluding regular quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
The number of Rights associated with each share of Common Stock is also
subject to adjustment in the event of a stock split of the Common Stock or a
stock dividend on the Common Stock payable in Common Stock or subdivisions,
consolidations or combinations of Common Stock occurring, in any such case,
prior to the Distribution Date. As a result of the Company's three-for-two stock
split in the form of a 50% stock dividend in 1996, the number of Rights
associated with each share of Common Stock has been reduced from one Right per
share of Common Stock to two-thirds of a Right per share of Common Stock.
Preferred Stock purchasable upon exercise of the Rights will not be
redeemable. Each share of Preferred Stock will be entitled to a minimum
preferential quarterly dividend payment of $100 per share and will be entitled
to an aggregate dividend of 10,000 times the dividend declared per share of
Common Stock. In the event of liquidation, the holders of the Preferred Stock
will be entitled to a minimum preferential liquidating payment of $100 per share
and will be entitled to an aggregate payment of 10,000 times the payment made
per share of Common Stock. Each share of Preferred Stock will have 10,000 votes,
voting together with the Common Stock. Finally, in the event of any merger,
consolidation or other transaction in which Common Stock is changed or
exchanged, each share of Preferred Stock will be entitled to receive 10,000
times the amount received per share of Common Stock. These rights are protected
by customary antidilution provisions and, in accordance therewith, in light of
the Company's stock dividend in 1996, currently provide for (i) an aggregate
dividend per share of Preferred Stock of 15,000 times the dividend declared per
share of Common Stock, (ii) an aggregate payment per share of Preferred Stock,
in the event of liquidation, of 15,000 times the payment made per share of
Common Stock and (iii) 15,000 votes per share of Preferred Stock, voting
together with the Common Stock.
Because of the nature of the Preferred Stock's dividend, liquidation and
voting rights, the value of one ten-thousandth of a share of Preferred Stock
purchasable upon exercise of each Right should approximate the value of one
share of Common Stock.
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With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional Units will be issued and, in lieu thereof, an adjustment in
cash will be made based on the market price of the Preferred Stock on the last
trading date prior to the date of exercise.
At any time until ten days following the Stock Acquisition Date, the
Company may redeem the Rights in whole, but not in part, at a price of $.01 per
Right (payable in cash or stock). Immediately upon the action of the Board of
Directors ordering redemption of the Rights, the Rights will terminate and the
only right of the holders of Rights will be to receive the $.01 redemption
price. The Rights may also be redeemable following certain other circumstances
specified in the Rights Agreement.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company as set forth above.
Prior to the Distribution Date, the terms of the Rights are subject to
amendment by the Board of Directors without the consent of the holders of the
Rights, except that the redemption price of the Rights is not subject to
amendment. After the Distribution Date, only limited terms of the Rights are
subject to amendment by the Board.
As long as the Rights are attached to the Common Stock, one Right (as such
number may be adjusted pursuant to the provisions of the Rights Agreement) shall
be deemed to be delivered for each share of Common Stock issued or delivered by
the Company, except that following the Distribution Date and prior to the
expiration or redemption of the Rights, the Company (a) shall issue Rights only
in respect of shares of common stock issued upon the exercise of stock options
or under any employee plan or arrangement, or upon the exercise, conversion or
exchange of securities issued before the Distribution Date and (b) may otherwise
issue Rights when it issues Common Stock only if the Board of Directors deems it
to be necessary or appropriate; provided that no Rights will be issued if the
Company is advised by counsel that such issuance would create a significant risk
of material adverse tax consequences to the Company or the recipient of the
Rights.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on a substantial number of Rights being acquired.
The Rights, however, should not affect any prospective offeror willing to make
an offer at a fair price and otherwise in the best interests of the Company and
its stockholders, as determined by a majority of the Board of Directors. The
Rights should not interfere with any merger or other business combination
approved by the Board of Directors of the Company since the Board of Directors
may, at its option, at any time prior to the close of business on the earlier of
(i) the tenth day following the Stock Acquisition Date or (ii) January 29, 2006,
and in certain other circumstances, redeem all but not less than all
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of the then outstanding Rights at the Redemption Price. It should also be noted
that the Company has a classified Board of Directors, which may also have
certain anti-takeover effects.
The Rights Agreement between the Company and the Rights Agent specifying
the terms of the Rights, which includes as Exhibit A the Form of Certificate of
Designations, as Exhibit B the Form of Rights Certificate, and as Exhibit C the
Summary of Rights to Purchase Preferred Stock, was filed as Exhibit 1 to the
Form 8-A and is incorporated herein by reference. Amendment No. 1, which
includes as Exhibit B the amended and restated Form of Rights Certificate and as
Exhibit C the amended and restated Summary of Rights to Purchase Preferred
Stock, is filed as Exhibit 2 hereto and is incorporated herein by reference. The
foregoing description of the Rights does not purport to be complete and is
qualified in its entirety by reference to such Exhibits.
Item 2. EXHIBITS.
Item 2 of this Registration Statement is hereby amended and restated as
follows:
Exhibit No. Description
- ----------- -------------
1. Rights Agreement, dated as of January 19, 1996, between Thermo
Electron Corporation and the First National Bank of Boston, as
Rights Agent, which includes as Exhibit A the Form of Certificate
of Designations, as Exhibit B the Form of Rights Certificate, and
as Exhibit C the Summary of Rights to Purchase Preferred Stock
(incorporated herein by reference to Exhibit 1 to the
Registrant's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on January 26, 1996, as
amended by Amendment No. 1 to Registration Statement on Form
8-A/A filed with the Securities and Exchange Commission on May
30, 1997).
2. Amendment No. 1 to Rights Agreement, dated as of June 11, 1999,
between Thermo Electron Corporation and BankBoston, N.A. (formerly,
The First National Bank of Boston), as Rights Agent, which includes
as Exhibit B the amended and restated Form of Rights Certificate and
as Exhibit C the amended and restated Summary of Rights to Purchase
Preferred Stock.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Amendment No. 2 to Registration
Statement on Form 8-A/A to be signed on its behalf by the undersigned, thereto
duly authorized.
June 14, 1999
THERMO ELECTRON CORPORATION
By: /s/ Kenneth J. Apicerno
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Kenneth J. Apicerno
Treasurer
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EXHIBIT INDEX
Exhibit No. Description
- ----------- --------------
1. Rights Agreement, dated as of January 19, 1996, between
Thermo Electron Corporation and the First National Bank of
Boston, as Rights Agent, which includes as Exhibit A the
Form of Certificate of Designations, as Exhibit B the Form
of Rights Certificate, and as Exhibit C the Summary of
Rights to Purchase Preferred Stock (incorporated herein by
reference to Exhibit 1 to the Registrant's Registration
Statement on Form 8-A filed with the Securities and
Exchange Commission on January 26, 1996, as amended by
Amendment No. 1 to Registration Statement on Form 8-A/A
filed with the Securities and Exchange Commission on May
30, 1997).
2. Amendment No. 1 to Rights Agreement, dated as of June 11,
1999, between Thermo Electron Corporation and BankBoston,
N.A. (formerly, The First National Bank of Boston), as
Rights Agent, which includes as Exhibit B the amended and
restated Form of Rights Certificate and as Exhibit C the
amended and restated Summary of Rights to Purchase
Preferred Stock.
<PAGE>
EXHIBIT 2
THERMO ELECTRON CORPORATION
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
-----------------------------------
THIS AMENDMENT NO. 1, executed as of June 11, 1999, is made to the RIGHTS
AGREEMENT, dated as of January 19, 1996 (the "Agreement"), between Thermo
Electron Corporation, a Delaware corporation (the "Company"), and BankBoston,
N.A. (formerly, The First National Bank of Boston), a national banking
association, as Rights Agent (the "Rights Agent").
In accordance with the provisions of Section 27 of the Agreement, the
Agreement is hereby amended as follows:
1. Section 1(i) is deleted.
2. Section 1(p) is amended to read in its entirety as follows:
(p) "Permitted Offer" shall mean a tender offer or an exchange
offer for all outstanding shares of Common Stock at a price and on
terms determined by at least a majority of the members of the Board of
Directors, after receiving advice from a nationally recognized
investment banking firm selected by the Board of Directors of the
Company, to be (a) at a price that is fair to stockholders (taking
into account all factors which such members of the board deem relevant
including, without limitation, prices which could reasonably be
achieved if the Company or its assets were sold on an orderly basis
designed to realize maximum value) and (b) otherwise in the best
interests of the Company and its stockholders.
3. Section 2 is amended to read in its entirety as follows:
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company and the
holders of the Rights (who, in accordance with Section 3 hereof, shall
prior to the Distribution Date also be the holders of the Common
Stock) in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The Company may from
time to time appoint such Co-Rights Agents as it may deem necessary or
desirable, upon ten (10) days' prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and shall in
no event be liable for, the acts or omissions of any such Co-Rights
Agent.
<PAGE>
4. The first sentence of Section 23(a) is amended to read in its entirety
as follows:
The Board of Directors of the Company may, at its option, at any time
prior to the earlier of (i) the close of business on the tenth day
following the Stock Acquisition Date (or, if the Stock Acquisition
Date shall have occurred prior to the Record Date, the close of
business on the tenth day following the Record Date), or (ii) the
Final Expiration Date, redeem all but not less than all the then
outstanding Rights at a redemption price of $.01 per Right, as such
amount may be appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption
Price") and the Company may, at its option, pay the Redemption Price
either in shares of Common Stock (based on the "current market price,"
as defined in Section 11(d)(i) hereof, of the shares of Common Stock
at the time of redemption) or cash; provided, however, that
notwithstanding the foregoing if, following the occurrence of a Stock
Acquisition Date and following the expiration of the right of
redemption set forth above in this Section 23(a), either (i)(A) a
Person who is an Acquiring Person shall have transferred or otherwise
disposed of a number of shares of Common Stock in one transaction or
series of transactions, not directly or indirectly involving the
Company or any of its Subsidiaries, such that such Person is
thereafter a Beneficial Owner of 10% or less of the outstanding shares
of Common Stock, and (B) there are no other Persons, immediately
following the occurrence of the event described in clause (A), who are
Acquiring Persons, and (C) a majority of the members of the Board of
Directors approve the reinstatement of the right of redemption
pursuant to this Section 23, or (ii)(A) the Board approves the
consolidation, merger or other combination of the Company with or
into, or the sale or other transfer (either by the Company or one or
more of its Subsidiaries), in one transaction or a series of related
transactions, of more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole), to a Person other
than the Acquiring Person (or any Associate or Affiliate of such
Acquiring Person) who caused the occurrence of such Stock Acquisition
Date, and (B) the Board of Directors of the Company, as part of the
approval of such an event described in the preceding clause (ii)(A),
approves the reinstatement of the right of redemption pursuant to this
Section 23, and (C) a majority of the members of the Board of
Directors so approves such reinstatement, then, in either such case,
the right of redemption shall be reinstated and thereafter be subject
to the provisions of this Section 23.
5. The last sentence of Section 24(a) is deleted.
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6. Section 26 is amended to read in its entirety as follows:
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of
any Rights Certificate to or on the Company shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the Rights Agent) as
follows:
Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company or by
the holder of any Rights Certificate to or on the Rights Agent shall
be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with the
Company) as follows:
BankBoston, N.A.
c/o EquiServe Limited Partnership
150 Royall Street
Canton, Massachusetts 02021
Attention: Client Administration
Notices or demands authorized by this Agreement to be given or made by
the Company or the Rights Agent to the holder of any Rights
Certificate (or, if prior to the Distribution Date, to the holder of
certificates representing shares of Common Stock) shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as
shown on the registry books of the Company.
7. Exhibit B to the Rights Agreement is amended and restated in the form
attached hereto as Exhibit B.
8. Exhibit C to the Rights Agreement is amended and restated in the form
attached hereto as Exhibit C.
This Amendment may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Attest: THERMO ELECTRON CORPORATION
By: /s/ Sandra L. Lambert By: /s/ Theo Melas-Kyriazi
--------------------- -------------------------
Name: Sandra L. Lambert Name: Theo Melas-Kyriazi
Title: Vice President and Secretary Title: Vice President and
Chief Financial Officer
Attest: BANKBOSTON, N.A. (FORMERLY, THE FIRST
NATIONAL BANK OF BOSTON)
By: /s/ Julie Poore By: /s/ Ken Theva
--------------------- -----------------------
Name: Julie Poore Name: Ken Theva
Title: Sr. Account Administrator Title: Managing Director
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EXHIBIT B
[Form of Rights Certificate]
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER JANUARY 29, 2006 OR EARLIER IF REDEEMED OR EXCHANGED BY
THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.01 PER RIGHT AND TO
EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR
WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF SUCH AGREEMENT.]*
Rights Certificate
THERMO ELECTRON CORPORATION
This certifies that , or registered assigns, is the registered owner of the
number of Rights set forth above, each of which entitles the owner thereof,
subject to the terms, provisions and conditions of the Rights Agreement, dated
as of January 19, 1996 (as amended, the "Rights Agreement"), between Thermo
Electron Corporation, a Delaware corporation (the "Company"), and BankBoston,
N.A. (formerly, The First National Bank of Boston), a national banking
association (the "Rights Agent"), to purchase from the Company after the
Distribution Date (as such term is defined on the Rights Agreement) and at any
time prior to 5:00 P.M. (Boston time) on January 29, 2006 at the office of the
Rights Agent designated for such purpose, or its successors as Rights Agent, one
ten-thousandth of a fully paid, non-assessable share of Series B Junior
Participating Preferred Stock (the "Preferred Stock") of the Company, $.01 par
value per share, at a purchase price of $250.00 in cash per one ten-thousandth
of a share (the "Purchase Price"), upon presentation and surrender of this
Rights Certificate with the Form of Election to Purchase and related Certificate
duly executed. The number of Rights evidenced by this Rights Certificate (and
the number of one ten-thousandths of a share of Preferred Stock which may be
purchased upon exercise hereof) set forth above, and the Purchase Price set
forth
- ------------------------------
* The portion of the legend in brackets
shall be inserted only if applicable and shall replace the preceding sentence.
<PAGE>
above, are the number and Purchase Price as of the close of business on
January 29, 1996, based on the Preferred Stock as constituted at such date.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Rights Agreement.
Upon the occurrence of a Section 11(a)(ii) Event, if the Rights evidenced
by this Rights Certificate are beneficially owned by (i) an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement), (ii) a transferee of any such Acquiring
Person, Associate or Affiliate who becomes a transferee after the Acquiring
Person becomes an Acquiring Person, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who, concurrently
with or after such transfer, became an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, such Rights shall become null and void and no
holder hereof shall have any right with respect to such Rights from and after
the occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the number and
kind of shares of Preferred Stock or other securities which may be purchased
upon the exercise of the Rights evidenced by this Rights Certificate are subject
to modification and adjustment upon the happening of certain events, including
Section 11(a)(ii) Events.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the principal offices of the
Company and are available upon written request to the Company.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the office of the Rights Agent designated for such purpose, with
the Form of Election and Certificate set forth on the reverse side duly
executed, may be exchanged for another Rights Certificate or Rights Certificates
of like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of one ten-thousandths of a share of Preferred Stock as the
Rights evidenced by the Rights Certificate or Rights Certificates surrendered
shall have entitled such holder to purchase. If this Rights Certificate shall be
exercised in part, the holder shall be entitled to receive upon surrender hereof
another Rights Certificate or Rights Certificates for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate may be redeemed by the Company at its option at a redemption
price of $.01 per Right at any time prior to the earlier of the close of
business on (i) the tenth day following the Stock Acquisition Date (as such time
period may be extended pursuant to the Rights Agreement), and (ii) the Final
Expiration Date.
Subject to the provisions of the Rights Agreement, the Company may, at its
option, at any time after a Section 11(a)(ii) Event, exchange all or part of the
Rights evidenced by this
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Certificate for shares of the Company's Common Stock or for Preferred Stock (or
shares of a class or series of the Company's preferred stock having the same
rights, privileges and preferences as the Preferred Stock).
No fractional shares of Preferred Stock will be issued upon the exercise of
any Right or Rights evidenced hereby (other than fractions which are integral
multiples of one ten-thousandth of a share of Preferred Stock, which may, at the
election of the Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of Preferred
Stock or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
3
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WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of _______________, _____
ATTEST: THERMO ELECTRON CORPORATION
________________________ By:_________________________
Secretary
Title:______________________
COUNTERSIGNED:
BankBoston, N.A. (formerly, The First National
Bank of Boston), as Rights Agent
By:___________________________
Authorized Signature
4
<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate)
To: BankBoston, N.A. (formerly, The First National Bank of Boston)
The undersigned hereby irrevocably elects to exercise ________ Rights
represented by this Rights Certificate to purchase the shares of Preferred Stock
issuable upon the exercise of the Rights (or such other securities of the
Company or of any other person which may be issuable upon the exercise of the
Rights) and requests that certificates for such shares be issued in the name of
and delivered to:
Please insert social security
or other identifying number _____________________________________
-----------------------------------------------------------------
(Please print name and address)
-----------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number______________________________________
-----------------------------------------------------------------
(Please print name and address)
----------------------------------------------------------------
Dated:____________, __
-----------------------
Signature
Signature Guaranteed:
5
<PAGE>
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate thereof (as such terms are defined pursuant to the
Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Rights Certificate from any
Person who is, was or became an Acquiring Person or an Affiliate or Associate
thereof.
Dated: ______________, __
---------------------------
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
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<PAGE>
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate)
FOR VALUE RECEIVED_______________________________________________
hereby sells, assigns and transfers unto_________________________
-----------------------------------------------------------------
(Please print name and address of transferee)
-----------------------------------------------------------------
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _________________ Attorney,
to transfer the within Rights Certificate on the books of the within-named
Company, with full power of substitution.
Dated: __________________, ____
---------------------------
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies that the Rights evidenced by this Rights
Certificate are not beneficially owned by an Acquiring Person or an Affiliate or
Associate thereof (as such terms are defined in the Rights Agreement).
Dated: ___________, ____
----------------------------
Signature
Signature Guaranteed:
7
<PAGE>
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
On January 19, 1996, the Board of Directors of Thermo Electron Corporation
(the "Company") declared a dividend distribution of one Right for each
outstanding share of the Company's Common Stock to stockholders of record at the
close of business on January 29, 1996. Each Right entitles the registered holder
to purchase from the Company a unit consisting of one ten-thousandth of a share
(a "Unit") of Series B Junior Participating Preferred Stock, $100 par value (the
"Preferred Stock") at a Purchase Price of $250.00 in cash per Unit, subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement (as amended, the "Rights Agreement") between the Company and
BankBoston, N.A. (formerly, The First National Bank of Boston), as Rights Agent.
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of Common Stock (the "Stock
Acquisition Date"), or (ii) 10 business days following the commencement of a
tender offer or exchange offer that would result in a person or group
beneficially owning 15% or more of such outstanding shares of Common Stock.
Until the Distribution Date, (i) the Rights will be evidenced by the Common
Stock certificates and will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates will contain a notation
incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any certificates for Common Stock outstanding will also constitute
the transfer of the Rights associated with the Common Stock represented by such
certificate.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on January 29, 2006, unless earlier redeemed or
exchanged by the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise determined by
the Board of Directors and except in connection with shares of Common Stock
issued upon the exercise of employee stock options, issuances under other
employee stock benefit plans or issuances upon the exercise, conversion or
exchange of securities issued prior to the Distribution Date, only shares of
Common Stock issued prior to the Distribution Date will be issued with Rights.
In the event that a Person becomes the beneficial owner of 15% or more of
the then outstanding shares of Common Stock, except pursuant to an offer for all
outstanding shares of Common Stock that at least a majority of the Board of
Directors determines to be fair to, and otherwise in the best interests of,
stockholders, each holder of a Right will thereafter have the
<PAGE>
right to receive, upon exercise, that number of shares of Common Stock (or, in
certain circumstances, cash, property or other securities of the Company) which
equals the exercise price of the Right divided by one-half of the current market
price (as defined in the Rights Agreement) of the Common Stock at the date of
the occurrence of the event. However, Rights are not exercisable following the
event set forth above until such time as the Rights are no longer redeemable by
the Company as set forth below. Notwithstanding any of the foregoing, following
the occurrence of such event, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void. The event set forth in this paragraph is
referred to as a "Section 11(a)(ii) Event."
For example, at an exercise price of $250.00 per Right, each Right not
owned by an Acquiring Person (or by certain related parties) following an event
set forth in the preceding paragraph would entitle its holder to purchase for
$250.00 such number of shares of Common Stock (or other consideration, as noted
above) as equals $250.00 divided by one-half of the current market price (as
defined in the Rights Agreement) of the Common Stock. Assuming that the Common
Stock had a per share value of $50.00 at such time, the holder of each valid
Right would be entitled to purchase ten shares of Common Stock for $250.00.
In the event that, at any time after any person has become an Acquiring
Person, (i) the Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation or its Common
Stock is changed or exchanged (other than a merger which follows an offer
determined by the Board of Directors to be fair as described in the first
sentence of the second preceding paragraph), or (ii) 50% or more of the
Company's assets or earning power is sold or transferred, each holder of a Right
(except Rights which previously have been voided as set forth above) shall
thereafter have the right to receive, upon exercise, that number of shares of
common stock of the acquiring company which equals the exercise price of the
Right divided by one-half of the current market price of such common stock at
the date of the occurrence of the event.
For example, at an exercise price of $250.00 per Right, each Right
following an event set forth in the preceding paragraph would entitle its holder
to purchase for $250.00 such number of shares of common stock of the acquiring
company as equals $250.00 divided by one-half of the current market price (as
defined in the Rights Agreement) of such common stock. Assuming that such common
stock had a per share value of $100.00 at such time, the holder of each valid
Right would be entitled to purchase five shares of common stock of the acquiring
company for $250.00.
At any time after the occurrence of a Section 11(a)(ii) Event, the Board of
Directors of the Company may exchange the Rights (other than Rights owned by
such Acquiring Person that have become void), in whole or in part, at an
exchange ratio of one share of Common Stock, or one ten-thousandth of a share of
Preferred Stock (or of a share of a class or series of the Company's preferred
stock having equivalent rights, preferences and privileges), per Right (subject
to adjustment).
2
<PAGE>
The Purchase Price payable, and the number of Units of Preferred Stock or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Stock, (ii) if holders of the Preferred Stock are granted certain rights or
warrants to subscribe for Preferred Stock or convertible securities at less than
the current market price of the Preferred Stock, or (iii) upon the distribution
to holders of the Preferred Stock of evidences of indebtedness or assets
(excluding regular quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
The number of Rights associated with each share of Common Stock is also
subject to adjustment in the event of a stock split of the Common Stock or a
stock dividend on the Common Stock payable in Common Stock or subdivisions,
consolidations or combinations of Common Stock occurring, in any such case,
prior to the Distribution Date. As a result of the Company's three-for-two stock
split in the form of a 50% stock dividend in 1996, the number of Rights
associated with each share of Common Stock has been reduced from one Right per
share of Common Stock to two-thirds of a Right per share of Common Stock.
Preferred Stock purchasable upon exercise of the Rights will not be
redeemable. Each share of Preferred Stock will be entitled to a minimum
preferential quarterly dividend payment of $100 per share and will be entitled
to an aggregate dividend of 10,000 times the dividend declared per share of
Common Stock. In the event of liquidation, the holders of the Preferred Stock
will be entitled to a minimum preferential liquidating payment of $100 per share
and will be entitled to an aggregate payment of 10,000 times the payment made
per share of Common Stock. Each share of Preferred Stock will have 10,000 votes,
voting together with the Common Stock. Finally, in the event of any merger,
consolidation or other transaction in which Common Stock is changed or
exchanged, each share of Preferred Stock will be entitled to receive 10,000
times the amount received per share of Common Stock. These rights are protected
by customary antidilution provisions and, in accordance therewith, in light of
the Company's stock dividend in 1996, currently provide for (i) an aggregate
dividend per share of Preferred Stock of 15,000 times the dividend declared per
share of Common Stock, (ii) an aggregate payment per share of Preferred Stock,
in the event of liquidation, of 15,000 times the payment made per share of
Common Stock and (iii) 15,000 votes per share of Preferred Stock, voting
together with the Common Stock.
Because of the nature of the Preferred Stock's dividend, liquidation and
voting rights, the value of one ten-thousandth of a share of Preferred Stock
purchasable upon exercise of each Right should approximate the value of one
share of Common Stock.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional Units will be issued and, in lieu thereof, an adjustment in
cash will be made based on the market price of the Preferred Stock on the last
trading date prior to the date of exercise.
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<PAGE>
At any time until ten days following the Stock Acquisition Date, the
Company may redeem the Rights in whole, but not in part, at a price of $.01 per
Right (payable in cash or stock). Immediately upon the action of the Board of
Directors ordering redemption of the Rights, the Rights will terminate and the
only right of the holders of Rights will be to receive the $.01 redemption
price. The Rights may also be redeemable following certain other circumstances
specified in the Rights Agreement.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company as set forth above.
Prior to the Distribution Date, the terms of the Rights are subject to
amendment by the Board of Directors without the consent of the holders of the
Rights, except that the redemption price of the Rights is not subject to
amendment. After the Distribution Date, only limited terms of the Rights are
subject to amendment by the Board.
As long as the Rights are attached to the Common Stock, one Right (as such
number may be adjusted pursuant to the provisions of the Rights Agreement) shall
be deemed to be delivered for each share of Common Stock issued or delivered by
the Company, except that following the Distribution Date and prior to the
expiration or redemption of the Rights, the Company (a) shall issue Rights only
in respect of shares of common stock issued upon the exercise of stock options
or under any employee plan or arrangement, or upon the exercise, conversion or
exchange of securities issued before the Distribution Date and (b) may otherwise
issue Rights when it issues Common Stock only if the Board of Directors deems it
to be necessary or appropriate; provided that no Rights will be issued if the
Company is advised by counsel that such issuance would create a significant risk
of material adverse tax consequences to the Company or the recipient of the
Rights.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A dated
January 25, 1996, as amended. A copy of the Rights Agreement is available free
of charge from the Company. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by reference to the
Rights Agreement.
4
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