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3: EX-3.1 Tmo 10-K 2005 Ex. 3.1 (Amended and Restated 24 88K
Certification of Incorporation)
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10: EX-31.1 Tmo 10-K 2005 Ex. 31.1 (Certification) HTML 21K
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EX-3.1 — Tmo 10-K 2005 Ex. 3.1 (Amended and Restated Certification of Incorporation)
Exhibit Table of Contents
Exhibit 3.1
-----------
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATION
OF
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
OF
THERMO ELECTRON CORPORATION
-------------
THERMO ELECTRON CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
WHEREAS, at a meeting duly called and held on January 19, 1996, pursuant to
the authority granted to and vested in the Board of Directors of this
Corporation (hereinafter called the "Board of Directors" or the "Board") in
accordance with the provisions of the Certificate of Incorporation, the Board of
Directors created a series of Preferred Stock, $100 par value (the "Preferred
Stock"), of the Corporation and stated the designation and number of shares, and
fixed the relative rights, preferences and limitations thereof as set forth in a
certificate of designation of Series B Junior Participating Preferred Stock (the
"Series B Preferred Stock") filed with the Secretary of State of the State of
Delaware on January 24, 1996 (the "Certificate of Designation");
WHEREAS, no shares of Series B Preferred Stock have, as of the date of this
Certificate, been issued;
WHEREAS, pursuant to authority conferred upon the Board of Directors by the
Amended and Restated Certificate of Incorporation, as amended, of the
Corporation, and pursuant to the provisions of Section 151 of the General
Corporate Laws of the State of Delaware (the "DGCL"), said Board of Directors,
at a meeting duly held on September 15, 2005, adopted a resolution providing for
the amendment and restatement of the Certificate of Designation, which
resolution is as follows:
RESOLVED: That the Authorized Officers of the Company be, and each of them
hereby is, authorized in the name and on behalf of the Company to execute and
file with the Secretary of State of the State of Delaware a Certificate of
Amendment of Certificate of Designation pursuant to Section 151(g) of the DGCL
setting forth amended and restated resolutions, which resolutions are hereby
adopted, and any other documents that any of such officers deem necessary,
desirable or appropriate, such that the designation of the Series B Preferred
Stock and amount thereof, and the voting powers, preferences and relative
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof, shall be as set
forth in the Terms of Series B Junior Participating Preferred Stock attached as
Exhibit A to the Shareholder Rights Agreement.
Said Exhibit A reads as follows:
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 Forty Thousand (40,000). Such number of shares may
be increased or decreased by resolution of the Board prior to issuance;
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 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, 100,000 times the aggregate per share amount of all cash
dividends, and 100,000 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
2
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 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:
3
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series B Preferred Stock shall entitle the holder
thereof to 100,000 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, 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 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.
4
(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 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.
5
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 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:
(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) to all holders of
such shares upon such terms as the Board, 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
6
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.
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 100,000 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
7
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 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 100,000 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, as amended,
of the Corporation shall not be amended in any manner that 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.
8
Section 11. Fractional Shares. Series B Preferred Stock may be issued
in fractions of a share that 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.
9
IN WITNESS WHEREOF, said Corporation has caused this Certificate to be
signed by Seth H. Hoogasian, its Vice President, General Counsel and Secretary,
this 16th day of September, 2005.
/s/ Seth H. Hoogasian
---------------------------------------------
Seth H. Hoogasian
Vice President, General Counsel and Secretary
10
CORRECTED
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THERMO ELECTRON CORPORATION
THERMO ELECTRON CORPORATION, a corporation organized and Existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation is THERMO ELECTRON CORPORATION.
2. That a Third Amended and Restated Certificate of Incorporation was
filed by the Secretary of State of Delaware on May 28, 1999, and that
said Certificate requires correction as permitted by Section 103 of
the General Corporation Law of the State of Delaware.
3. The inaccuracy or defect of said Certificate to be corrected is as
follows: In various articles throughout the document a reference to a
Second Amended and Restated Certificate of Incorporation is mentioned.
4. The Third Amended and Restated Certificate of Incorporation is hereby
corrected and set forth in its entirety as follows:
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";
(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";
1
(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:
"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
2
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.
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:
3
"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:
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.
4
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 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
5
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:
(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
6
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.
(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.
7
(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:
(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
8
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.
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
9
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.
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
10
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.
11
(b) In the case of any action or suit by or in the right of the
Corporation to procure a judgment in its favor, no indemnification
shall be made (i) except for expenses (including attorneys' fees) or
(ii) in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(c) To the extent that a director or officer of the Corporation
has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) or (b), or
in defense of any claim, issue or matter therein, he 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.
12
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 arts or omissions of such director
occurring prior to such amendment or repeal."
IN WITNESS WHEREOF, said Thermo Electron Corporation has caused this
certificate to be signed by George N. Hatsopoulos, its Chairman and 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
13
Dates Referenced Herein and Documents Incorporated by Reference
8 Subsequent Filings that Reference this Filing
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