EXHIBIT 4.3
OFFICERS' CERTIFICATE OF
THERMO ELECTRON CORPORATION PURSUANT TO SECTION 301
OF THE INDENTURE IDENTIFIED BELOW
The undersigned John N. Hatsopoulos and Kenneth J. Apicerno as the Chief
Financial Officer and Treasurer, respectively, of Thermo Electron Corporation
("Company"), acting pursuant to authorizations contained in resolutions, copies
of which are delivered herewith, duly adopted on July 17, 1997, July 14, 1998
and August 21, 1998 by the Board of Directors of the Company, and on October 26,
1998 by the Pricing Committee thereof, do hereby authorize, adopt and approve
the following terms for a series (the "Series") of the Company's debt securities
(the "Securities") to be issued under a Senior Indenture dated as of October 29,
1998, as amended by the First Supplemental Indenture dated as of October 29,
1998 (collectively, the "Indenture"), from the Company, as issuer, to Bankers
Trust Company, as Trustee, pursuant to the Registration Statement on Form S-3
(No. 333-62957) under the Securities Act of 1933, as amended. Terms used herein
without definition shall have the meanings ascribed to such terms in the
Indenture. Article and Section references are to the Indenture.
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Section The title or designation of the 7.625% Notes due October 30, 2008 (the "Notes").
301 (1) Securities and the series in which the
Securities shall be included:
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Section Any limit upon the aggregate principal $150,000,000 aggregate principal amount.
301 (2) amount of the Securities of such title or
designation or the Securities of such
series which may be authenticated and
delivered under the Indenture (except for
Securities authenticated and delivered
upon registration or transfer of, or in
exchange for, or in lieu of, other
Securities of such series pursuant to
Section 304, 305, 306, 905 or 1107 of the
Indenture, upon repayment in part of any
Security of such series pursuant to
Article Fifteen, or upon surrender in
part of any Security for conversion or
exchange into other securities pursuant
to its terms, or pursuant to the terms of
such Securities):
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Section If the Securities are to be issuable as The Notes are to be issued only as Registered
301 (3) Registered Securities, as Bearer Notes.
Securities or alternatively as Bearer
Securities and Registered Securities, and
whether the Bearer Securities are to be
issuable with Coupons, without Coupons or
both, and any restrictions applicable to
the offer, sale or delivery of the Bearer
Securities and the terms, if any, upon
which Bearer Securities may be exchanged
for Registered Securities and vice versa:
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Section If any of the Securities are to be Registered Notes are to be issued solely in
301 (4) issuable in global form, when any of such permanent global form (except as otherwise
Securities are to be issuable in global specified in Section 305). The Depository for
form and (i) whether such Securities are the Registered Notes is the Depository Trust
to be issued in temporary or permanent Company and any successor thereto. Registered
global form or both, (ii) the extent to Notes shall be registered in the name of the
which, or the manner in which, any Depository or its nominee (except as otherwise
interest payment or Additional Amounts on specified in Section 305). Beneficial owners of
a global Security on an Interest Payment interests in the permanent global Registered
Date will be paid and the manner in which Notes may not exchange such interest for Notes,
any principal of or premium, if any, on except as specified in Section 305. The original
any global Security will be paid, (iii) issuance date for the Notes is October 29, 1998.
whether beneficial owners of interests in
any such global Security may exchange Additional Amounts will not be payable on the
such interests for Securities of the same Notes.
series and of like tenor and of any
authorized form and denomination, and the The Company will make all payments of principal
circumstances under which any such and interest on the Notes in immediately
exchanges may occur, if other than in the available funds so long as the Notes are
manner specified in Section 305 of the maintained in book-entry form.
Indenture, (iv) the name of the
Depository or the U.S. Depository, as the
case may be, with respect to any global
Security and, if applicable, any
successor to the Depository or U.S.
Depository, (v) the name of the Common
Depository, if applicable, and (vi) the
Exchange Date, if applicable:
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Section If any of the Securities are to be The Registered Notes in global form shall be
301 (5) issuable as Bearer Securities or in dated the date of original issuance of the first
global form, the date as of which any of such Notes to be issued. All other Notes
such Bearer Security or global Security shall be dated the date of their authentication.
shall be dated (if other than the date of
original issuance of the first of such
Securities to be issued):
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Section If any of the Securities are to be Not applicable.
301 (6) issuable as Bearer Securities, whether
interest in respect of any portion of a
temporary Bearer Security in global form
payable in respect of an Interest Payment
Date therefor prior to the Exchange Date,
shall be paid to any clearing
organization with respect to the portion
of such temporary Bearer Security held
for its account and, in such event, the
terms and conditions (including any
certification requirements) upon which
any such interest payment received by a
clearing organization will be credited to
the Persons entitled to interest payable
on such Interest Payment Date, if other
than as provided in Section 304 of the
Indenture:
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Section The date or dates, or the method or The Stated Maturity of the principal of the
301 (7) methods, if any, by which the date or Notes is October 30, 2008.
dates shall be determined on which the
principal of the Securities is payable:
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Section The rate or rates at which the Securities The Notes shall bear interest at the per annum
301 (8) shall bear interest, if any, or the rate of 7.625%. Interest shall accrue from the
method or methods, if any, by which such date of original issuance of the Notes. The
rate or rates are to be determined; the Interest Payment Dates for the Notes shall be
date or dates, if any, from which such April 30 and October 30, in each year,
interest shall accrue or the method or commencing April 30, 1999. The Regular Record
methods, if any, by which such date or Dates for the interest payable on such Interest
dates are to be determined; the Interest Payment Dates are April 15 and October 15,
Payment Dates, if any, on which such respectively. Additional Amounts shall not be
interest shall be payable and the Regular payable on the Notes.
Record Date, if any, for the interest
payable on Registered Securities on any
Interest Payment Date; whether and under
what circumstances Additional Amounts on
such Securities or any of them shall be
payable; the notice, if any, to Holders
regarding the determination of interest
on a floating rate Security and the
manner of giving such notice, and the
basis upon which interest shall be
calculated if other than that of a
360-day year of twelve 30-day months:
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Section If in addition to or other than the The Borough of Manhattan, The City of New York
301 (9) Borough of Manhattan, The City of New shall be the place where principal of, any
York (or, in the case of Bearer premium and interest on the Notes shall be
Securities, except as otherwise provided payable, any of such Notes may be surrendered
in the Indenture, London, England), the for registration of transfer and exchange, any
place or places where the principal of, of such Notes may be surrendered for transfer or
any premium and interest on or any exchange in the circumstances described herein
Additional Amounts with respect to such and in the Indenture, and notices or demands to
Securities shall be payable, any of such or upon the Company in respect of such Notes and
Securities may be surrendered for the Indenture may be served.
registration of transfer and exchange,
any of such Securities may be surrendered Principal, premium (if any), and interest
for transfer, exchange or conversion in payments with respect to a global Note will be
the circumstances described herein and paid in the manner set forth in the Indenture.
in the Indenture, and notices or demands
to or upon the Company in respect of such In the event the Note in permanent global form
Securities and the Indenture may be is exchangeable for definitive Notes pursuant to
served: Section 305 and the Notes are then listed on the
Luxembourg Stock Exchange, Luxembourg shall be
an additional place where the principal of, any
premium and interest on the Notes shall be
payable and any of such Notes may be surrendered
for transfer or exchange in the circumstances
described herein and in the Indenture.
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Section Whether any of the Securities are to be The Notes may be redeemed, at the option of the
301 (10) redeemable at the option of the Company Company, in whole or in part at any time on the
and, if so, the date or dates on which, Redemption Date, upon notice as described in the
the period or periods within which, the Indenture, at the Redemption Price.
price or prices at which and the other
terms and conditions upon which the The Redemption Price shall be equal to the
Securities may be redeemed, in whole or greater of (i) 100% of the principal amount of
in part, at the option of the Company the Notes and (ii) the sum of the present values
and, if other than by a Company Board of the remaining scheduled payments of principal
Resolution, the manner in which any and interest thereon (not including the portion
election by the Company to redeem the of any such payments of interest accrued as of
Securities shall be evidenced: the Redemption Date) discounted to the
Redemption Date on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate (as
defined below) (determined on the third Business
Day preceding such Redemption Date), together,
in each case, with accrued and unpaid interest
to the Redemption Date.
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"Adjusted Treasury Rate" means (i) the
arithmetic mean of the yields under the heading
"Week Ending" published in the Statistical
Release most recently published prior to the
date of determination under the caption
"Treasury Constant Maturities" for the maturity
(rounded to the nearest month) corresponding to
the remaining life to maturity, as of the
Redemption Date, of the Notes being redeemed
plus (ii) 0.30%. If no maturity set forth under
such heading exactly corresponds to the maturity
of such Notes, yields for the two published
maturities most closely corresponding to the
maturity of such Notes shall be calculated by
the Company pursuant to the immediately
preceding sentence, and the Adjusted Treasury
Rate shall be interpolated or extrapolated from
such yields on a straight-line basis, rounding
in each of the relevant periods to the nearest
month.
"Statistical Release" means the statistical
release designated "H.15(519)" or any successor
publication which is published weekly by the
Federal Reserve System and which establishes
yields on actively-traded United States
government securities adjusted to the constant
maturities, or, if such statistical release is
not published at the time of any determination
under the terms of the Notes, then such other
reasonably comparable index which shall be
designated by the Company.
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Section If the Company is obligated to redeem or Not applicable.
301 (11) purchase any of the Securities pursuant
to any sinking fund or analogous
provision or at the option of any Holder
thereof (including under Article Fifteen
of the Indenture) and, if so, the date or
dates on which, the period or periods
within which, the price or prices at
which and the other terms and conditions
upon which the Securities shall be
redeemed or purchased, in whole or in
part, pursuant to such obligation, and
any provisions for the remarketing of the
Securities so redeemed or purchased:
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Section The denominations in which any of the None, except that the global Registered Note
301 (12) Securities that are Registered Securities held by the Depository shall be in such
shall be issuable if other than principal amount as the officer(s) manually
denominations of $1,000 and any integral executing the same shall approve, their manual
multiple thereof, and the denominations execution thereof to be conclusive evidence of
in which any of the Securities that are such approval.
Bearer Securities shall be issuable if
other than the denominations of $1,000
and $10,000:
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Section If other than the principal amount Not applicable.
301 (13) thereof, the portion of the principal
amount of any of the Securities that
shall be payable upon declaration of
acceleration of the Maturity thereof
pursuant to Section 502 of the Indenture
or the method by which such portion is to
be determined:
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Section If the amount of payments of principal Not applicable.
301 (14) of, any premium or interest on or any
Additional Amounts with respect to the
Securities may be determined with
reference to an index, indices, formula
or other method or methods (which index,
indices, formula or method or methods may
be based, without limitation, on one or
more currencies, commodities, equity
indices or other indices), and, if so,
the terms and conditions upon which and
the manner in which such amounts shall be
determined and paid or payable:
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Section Any deletions from, modifications of or As set forth in the First Supplemental Indenture.
301 (15) additions to the Events of Default or
covenants of the Company with respect to
any of the Securities, whether or not
such Events of Default or covenants are
consistent with the Events of Default or
covenants set forth in the Indenture:
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Section If either or both of Section 402(2) Both Section 402(2) and Section 402(3) shall be
301 (16) relating to defeasance or Section 402(3) applicable to the Notes. Sections 801, 1007 and
relating to covenant defeasance, as set 1008 shall be subject to covenant defeasance as
forth in the Indenture, shall be provided in the Indenture.
applicable to the Securities, or any
covenants in addition to those specified
in Section 402(3) of the Indenture
relating to the Securities which shall be
subject to covenant defeasance, and any
deletions from, or modifications or
additions to, the provisions of Article
Four of the Indenture in respect of the
Securities shall apply:
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Section The terms, if any, on which the Not applicable.
301 (17) Securities may be converted into or
exchanged for other securities of the
Company:
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Section If any of the Securities are to be Not applicable.
301 (18) issuable in global form and are to be
issuable in definitive form (whether upon
original issue or upon exchange of a
temporary Security) only upon receipt of
certain certificates or other documents
or satisfaction of other conditions, then
the form and terms of such certificates,
documents or conditions:
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Section If there is more than one Trustee, the The Trustee is:
301 (19) identity of the Trustee and, if not the
Trustee, the identity of each Security Bankers Trust Company
Registrar, Paying Agent, Conversion Agent
or Authenticating Agent with respect to Four Albany Street
such Securities: 4th Floor
New York, NY 10006
The Trustee shall initially be the Security
Registrar, the Authenticating Agent and the
Paying Agent with respect to the Notes.
In the event the Note in permanent global form
is exchangeable for definitive Notes pursuant to
Section 305 and the Notes are then listed on the
Luxembourg Stock Exchange, Bankers Trust
Luxembourg, S.A. shall be an additional Paying
Agent.
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Section [INTENTIONALLY OMITTED]
301 (20)
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Section Any other terms of the Securities and any The form of the Registered Note in global form
301 (21) deletions from or modifications or is attached to this Certificate as Exhibit A.
additions to the Indenture in respect of The form of the definitive Registered Note,
the Securities (which terms shall not be which is to be used only if one of the
inconsistent with the provisions of the conditions set forth in the first sentence of
Indenture, except as permitted by Section the seventh paragraph of Section 305 of the
901 thereof): Indenture has occurred, is attached to this
Certificate as Exhibit B.
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Section Definition of Business Day, if other than Not applicable.
101 as set forth in the Indenture:
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Section Definition of United States, if other Not applicable.
101 than as set forth in the Indenture:
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Section The extent to which an Indexed Security Not applicable.
101 is deemed Outstanding, if other than as
set forth in the Indenture:
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Section Whether an Opinion of Counsel may not be Not applicable.
101 given by an employee of the Company:
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Section Whether actions by Holders may not be Not applicable.
104 taken by proxy:
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Section Whether notice of any event given to Not applicable.
106 Holders shall be in a manner different
than as set forth in the Indenture:
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Section Payment or conversion on a day other than Not applicable.
114 a Business Day, if other than as set
forth in the Indenture:
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Section Whether the Securities initially shall be Not applicable.
204 issued in other than global form:
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Section Whether payment of principal of, any Not applicable.
204 premium and (except for temporary global
Bearer Securities) interest on, and any
Additional Amounts in respect of, any
temporary or permanent global Security
shall be made to a Person or Persons
other than the Person or Persons
specified therein:
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Section The Persons whom the Trustee or any agent Not applicable.
204 of the Company or the Trustee shall treat
as the Holder of the principal amount of
the temporary global Bearer Security:
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Section Whether temporary Securities (other than Not applicable.
304(b) temporary global Bearer Securities),
until exchanged for Definitive Securities
of such series, will be entitled to the
same benefits under the Indenture as
Definitive Securities of such series:
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Section Whether temporary global Bearer Not applicable.
304(c) Securities shall have the same rights and
benefits as definitive Bearer Securities:
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Section The terms on which a permanent global Not applicable.
305 Registered Security shall be exchangeable
for definitive Securities, if other than
as set forth in the Indenture:
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Section The terms under which holders of Not applicable.
305 definitive Registered Securities and
Bearer Securities may exchange such
interest for securities in global form,
if other than as set forth in the
Indenture:
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Section The terms on which interest on Bearer Not applicable.
306 Securities shall be paid without
presentation and surrender of the
applicable Coupon, if other than as set
forth in the Indenture:
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Section The person or persons to receive payments Not applicable.
307(a) with respect to Registered Securities, if
other than the registered holder
(including DTC) thereof on the Regular
Record Date:
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Section Manner in which payments of interest Not applicable.
307(a) shall be made if other than as set forth
in the Indenture:
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Section The terms on which a Bearer Security may Not applicable.
307(a) be exchanged for a Registered Security
after a Regular Record Date and before an
Interest Payment Date, if other than as
set forth in the Indenture:
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Section Circumstances under which payments on a Not applicable.
307(a), Bearer Security may be paid in the United
1002 States, if other than as set forth in the
Indenture:
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Section Method of paying interest, by check or Not applicable.
307(a) wire transfer or both, if other than as
set forth in the Indenture:
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Section The terms on which Defaulted Interest Not applicable.
307(b) shall be paid with respect to Registered
Securities, if other than as set forth in
the Indenture:
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Section Whether Securities or Coupons shall be Not applicable.
309 authenticated in lieu of or in exchange
for any Securities or Coupons canceled as
provided in Section 309 of the Indenture,
except as expressly permitted by or
pursuant to the Indenture:
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Section Qualifications for an Authenticating Not applicable.
612 Agent, if other than as set forth in the
Indenture:
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Section Dates upon which the Company will furnish Not applicable.
701(1) names and addresses of Holders, if other
than as set forth in the Indenture:
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Section Whether the Company shall be required to As required by law or regulation.
1004 make all payments of principal of,
premium, if any, and interest on
Securities of any series to a Holder
thereof who is not a United States
person, without set-off, counterclaim,
fees, liabilities or similar deductions
(including payments on redemption and
repayment), and free and clear of, and
without deduction or withholding for
Taxes:
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Section If the Company or any agent of the Additional Amounts will not be payable on the
1004 Company is required by law or regulation Notes.
to make any deduction or withholding for
or on account of Taxes, whether the
Company shall pay such Additional Amounts
as shall be necessary in order that the
net amounts received by the Holders of
the Securities of any series who are not
United States Persons after such
deduction or withholding shall equal the
amount that would have been receivable
thereunder in the absence of such
deduction or withholding:
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Section Whether the covenant set forth in Section The covenant set forth in Section 1007 shall be
1007 1007 shall be for the benefit of the for the benefit of the Notes.
Securities:
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Section Whether the covenant set forth on Section The covenant set forth in Section 1008 shall be
1008 1008 covenant shall be for the benefit of for the benefit of the Notes.
the Securities:
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Section Whether the Company shall be required to The Company shall not be required to deposit
1105 deposit with the Trustee the accrued with the Trustee the accrued interest on the
interest on and any Additional Amounts Notes being redeemed if the Redemption Date
with respect to Securities being redeemed shall be an Interest Payment Date.
if the Redemption Date shall be an
Interest Payment Date:
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Section If other than as set forth in the Not applicable.
1106 Indenture, whether installments of
interest on Bearer Securities whose
Stated Maturity is on or prior to the
Redemption Date shall be payable other
than upon the presentation and surrender
of the Coupons for such interest:
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Section If other than as set forth in the Not applicable.
1106 Indenture, whether installments of
interest on Registered Securities whose
Stated Maturity is on or prior to the
Redemption Date shall be payable to the
Holders of such Securities registered as
such at the close of business on the
Regular Record Date:
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Issue price to public of Securities of 99.724% of the principal amount of the Notes.
the Series:
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Underwriters' commission or discount as a 0.65%.
percentage of the principal amount of
Securities of the Series to be issued:
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REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the undersigned have executed this Certificate on behalf
of the Company.
THERMO ELECTRON CORPORATION
By: /s/ John N. Hatsopoulos
-----------------------
Name: John N. Hatsopoulos
Title: Chief Financial Officer
By: /s/ Kenneth J. Apicerno
-----------------------
Name: Kenneth J. Apicerno
Title: Treasurer
Dated as of October 29, 1998
Exhibit A
(FORM OF FACE OF REGISTERED GLOBAL SECURITIES)
Unless this Security is presented by an authorized representative of The
Depository Trust Company ("DTC"), 55 Water Street, New York, New York to the
issuer or its agent for registration of transfer, exchange or payment, and such
Security issued is registered in the name of CEDE & CO., or such other name as
requested by an authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the
registered owner hereof, CEDE & CO., has an interest herein.
Unless and until this Security is exchanged in whole or in part for Securities
in certificated form, this Security may not be transferred except as a whole by
DTC to a nominee thereof or by a nominee thereof to DTC or another nominee of
DTC or by DTC or any such nominee to a successor of DTC or a nominee of such
successor.
THERMO ELECTRON CORPORATION
(Incorporated in the State of Delaware)
__% NOTE
DUE __________ , 200_
No. R-
_______________
CUSIP:
_______________
Thermo Electron Corporation , a Delaware corporation (herein referred
to as the "Company," which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to Cede & Co. or registered assigns the principal sum of
$_______ (or any other amounts as are endorsed on the Schedule of Adjustments
hereto) on ____________ (the "Stated Maturity") upon the presentation and
surrender hereof, and to pay interest thereon from ______________ or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually in arrears on _____ and ________ of each year (each,
an "Interest Payment Date"), commencing ________, at the rate of __% per annum,
until the principal hereof is paid or duly provided for. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Holder in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
________ or ______ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date, by check mailed or delivered to the
address of the Person entitled thereto as such address shall appear in the
Security Register; provided, however, that such interest may be paid, at the
------------------
Company's option and with the consent of any Paying Agent, by transfer to an
account maintained by the Payee with a bank located in
the United States. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and may be paid to the Holder in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. All payments hereunder shall be made in United States
Dollars.
Subject to the applicable provisions of the Indenture, the aggregate
principal amount represented by this global Security may be decreased to reflect
exchanges or partial redemptions, by endorsing the Schedule of Adjustments
hereto, and the principal amount hereof shall be deemed to be decreased for all
purposes by the amount so exchanged or redeemed, as applicable.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature of one of its authorized signatories, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its facsimile corporate seal.
Dated:_________________________ THERMO ELECTRON CORPORATION
By:_______________________
Attest: Kenneth J. Apicerno
Treasurer
_______________________________
Secretary
[SEAL]
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:
__________________________
Authorized Officer
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(FORM OF REVERSE OF REGISTERED GLOBAL SECURITIES)
THERMO ELECTRON CORPORATION
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, as amended by the First Supplemental Indenture, and
as further supplemented by the Company's Officers' Certificate, each dated as of
_____________, 1998 (collectively, the "Indenture") by the Company, as issuer,
to Bankers Trust Company, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture with respect to the series of
which this Security is a part), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the duly authorized series of Securities designated on the face hereof and
the aggregate principal amount of the Securities to be issued under such series
is limited to $____ (except for Securities authenticated and delivered upon
transfer of, or in exchange for, or in lieu of other Securities). The Holders
of the Securities will be entitled to the benefits of, be bound by, and be
deemed to have notice of, all of the provisions of the Indenture. A copy of the
Indenture is on file and may be inspected at the office of the Paying Agents
appointed by the Company. All terms used in this Security that are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
The Securities are issuable as registered securities (the "Registered
Securities"), without Coupons, in denominations of U.S. $1,000 and integral
multiples thereof, except as otherwise provided in or pursuant to the Indenture.
The Registered Securities, and transfers thereof, shall be registered as
provided in the Indenture. The registered holder of a Registered Security shall
(to the fullest extent permitted by applicable law) be treated at all times, by
all persons and for all purposes as the absolute owner of such Security,
regardless of any notice of ownership, theft or loss or of any writing thereon.
The Securities are general, unsecured obligations of the Company.
No Additional Amounts shall be paid on the Securities.
If an Event of Default, as defined in the Indenture, shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance and covenant
defeasance with respect to this Security, in each case upon compliance with
certain conditions set forth therein.
The Securities are not convertible into or exchangeable for the
Company's Common Stock and will not be entitled to the benefit of any sinking
fund.
The Securities may be redeemed as provided in or pursuant to the Indenture,
at the option of the Company, in whole or in part at any time on the Redemption
Date, upon notice as described in the Indenture, at the Redemption Price. The
Redemption Price shall be equal to the greater of (i) 100% of the principal
amount of the Securities and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including the portion
of any such payments of interest accrued as of the Redemption Date) discounted
to the Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate (as defined
below) (determined on the third Business Day preceding such Redemption Date),
together, in each case, with accrued and unpaid interest to the Redemption Date.
"Adjusted Treasury Rate" means (i) the arithmetic mean of the yields under the
heading "Week Ending" published in the Statistical Release most recently
published prior to the date of determination under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the Redemption Date, of
the Securities being redeemed, plus (ii) 0.30%. If no maturity set forth under
such heading exactly corresponds to the maturity of such Securities, yields for
the two published maturities most closely corresponding to the maturity of such
Securities shall be calculated pursuant to the immediately preceding sentence,
and the Adjusted Treasury Rate shall be interpolated or extrapolated from such
yields on a straight-line basis, rounding in each of the relevant periods to the
nearest month. "Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively-traded United
States government securities adjusted to the constant maturities, or, if such
statistical release is not published at the time of any determination under the
terms of the Securities, then such other reasonably comparable index which shall
be designated by the Company. Notice of redemption will be given to Holders of
Securities, not less than 20 nor more than 60 days prior to the Redemption Date,
all as provided in the Indenture.
The Place of Payment, place of registration of transfer and exchange and
the place of transfer and exchange for the Registered Securities shall be the
Borough of Manhattan, the City of New York, and the Corporate Trust Office of
the Trustee shall be the Company's Office or Agency in the Borough of Manhattan,
the City of New York for such purpose.
The Trustee initially shall be the Security Registrar, the Authenticating
Agent, and a Paying Agent. The Trustee presently has its Corporate Trust Office
at Four Albany Street, 4th Floor, New York, NY 10006. In addition, the Company
has appointed Bankers Trust Luxembourg, S.A. as a Paying Agent. Bankers Trust
Luxembourg, S.A.'s Office in Luxembourg is currently located at 14 Boulevard
F.D. Roosevelt, l-2450 Luxembourg. The Company may subsequently appoint a new
Office or Agency with respect to the Registered Securities.
The Indenture permits the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time as specified therein. The Indenture
also contains provisions permitting the waiver of compliance by the company with
certain provisions of the Indenture. Furthermore, provisions in the Indenture
permit the waiver of certain past defaults under the Indenture and their
consequences.
-5-
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest, on this Security at the times, places and rates, and in the coin or
currency, herein and therein prescribed.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts applicable to
agreements made and to be performed entirely in such Commonwealth except that
the rights, protections, obligations, indemnities and immunities of the Trustee
under the Indenture and the Securities shall be governed by the laws of the
State of New York, without regard to the principles of conflicts of laws of
either state.
-6-
SCHEDULE OF ADJUSTMENTS
REMAINING
PRINCIPAL PRINCIPAL AMOUNT NOTATION MADE
AMOUNT OF FOLLOWING SUCH ON BEHALF OF
DATE MADE ADJUSTMENT ADJUSTMENT THE TRUSTEE
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-7-
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
_____________ whose taxpayer identification number is _____________________ and
whose address including postal/zip code is _____________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing _____________________________ attorney-in-fact to transfer said
Security on the books of the Security Registrar with full power of substitution
in the premises.
Dated: Name:
_______________ __________________________
By:
__________________________
Title:
_________________________
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within instrument in
every particular, without enlargement or any
change whatsoever.
SIGNATURE GUARANTEED
_______________________________
Exhibit B
(FORM OF FACE OF REGISTERED SECURITIES)
THERMO ELECTRON CORPORATION
(Incorporated in the State of Delaware)
__% NOTE
DUE __________ , 200_
No. R-
_____________
CUSIP:
____________
Thermo Electron Corporation , a Delaware corporation (herein referred
to as the "Company," which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to ____________ or registered assigns the principal sum of
$_______ on ____________ (the "Stated Maturity") upon the presentation and
surrender hereof, and to pay interest thereon from ______________ or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually in arrears on _____ and ________ of each year (each,
an "Interest Payment Date"), commencing ________, at the rate of __% per annum,
until the principal hereof is paid or duly provided for. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Holder in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
________ or ______ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date by check mailed or delivered to the address
of the Person entitled thereto as such address shall appear in the Security
Register; provided, however, that such interest may be paid, at the Company's
--------- --------
option and with the consent of any Paying Agent, by transfer to an account
maintained by the Payee with a bank located inside the United States. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and may be paid to the Holder
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. All payments
hereunder shall be made in United States Dollars.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature of one of its authorized signatories, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its facsimile corporate seal.
Dated:_________________________ THERMO ELECTRON CORPORATION
By:_______________________
Attest: Kenneth J. Apicerno
Treasurer
_______________________________
Secretary
[SEAL]
-2-
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:
____________________________
Authorized Officer
-3-
(FORM OF REVERSE OF REGISTERED SECURITIES)
THERMO ELECTRON CORPORATION
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, as amended by the First Supplemental Indenture, and
as further supplemented by the Company's Officers' Certificate, each dated as of
_____________, 1998 (collectively, the "Indenture") by the Company, as issuer,
to Bankers Trust Company, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture with respect to the series of
which this Security is a part), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the duly authorized series of Securities designated on the face hereof and
the aggregate principal amount of the Securities to be issued under such series
is limited to $____ (except for Securities authenticated and delivered upon
transfer of, or in exchange for, or in lieu of other Securities). The Holders
of the Securities will be entitled to the benefits of, be bound by, and be
deemed to have notice of, all of the provisions of the Indenture. A copy of the
Indenture is on file and may be inspected at the office of the Paying Agents
appointed by the company. All terms used in this Security that are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
The Securities are issuable as registered securities (the "Registered
Securities"), without coupons, in denominations of U.S. $1,000 and integral
multiples thereof, except as otherwise provided in or pursuant to the Indenture.
The Registered Securities, and transfers thereof, shall be registered as
provided in the Indenture. The registered holder of a Registered Security shall
(to the fullest extent permitted by applicable law) be treated at all times, by
all persons and for all purposes as the absolute owner of such Security,
regardless of any notice of ownership, theft or loss or of any writing thereon.
The Securities are general, unsecured obligations of the Company.
No additional amounts shall be paid on the Securities.
If an Event of Default, as defined in the Indenture, shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance and covenant
defeasance with respect to this Security, in each case upon compliance with
certain conditions set forth therein.
The Securities are not convertible into or exchangeable for the
Company's Common Stock and will not be entitled to the benefit of any sinking
fund.
The Securities may be redeemed as provided in the Indenture, at the
option of the Company, in whole or in part at any time on the Redemption Date,
upon notice as described in the Indenture, at the Redemption Price. The
Redemption Price shall be equal to the greater of (i) 100% of the principal
amount of the Securities and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including the portion
of any such payments of interest accrued as of the Redemption Date) discounted
to the redemption date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate (as defined
below) (determined on the third business day preceding such Redemption Date),
together, in each case, with accrued and unpaid interest to the Redemption Date.
"Adjusted Treasury Rate" means (i) the arithmetic mean of the yields under the
heading "Week Ending" published in the Statistical Release most recently
published prior to the date of determination under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the Redemption Date, of
the Securities being redeemed, plus (ii) 0.30%. If no maturity set forth under
such heading exactly corresponds to the maturity of such Securities, yields for
the two published maturities most closely corresponding to the maturity of such
Securities shall be calculated pursuant to the immediately preceding sentence,
and the adjusted treasury rate shall be interpolated or extrapolated from such
yields on a straight-line basis, rounding in each of the relevant periods to the
nearest month. "Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively-traded United
States Government Securities adjusted to the constant maturities, or, if such
statistical release is not published at the time of any determination under the
terms of the Securities, then such other reasonably comparable index which shall
be designated by the Company. Notice of redemption will be given to holders of
securities, not less than 20 nor more than 60 days prior to the Redemption Date,
all as provided in the Indenture.
The Place of Payment, place of registration of transfer and exchange and
the place of transfer and exchange for the Registered Securities shall be the
Borough of Manhattan, The City of New York, and the Corporate Trust Office of
the Trustee shall be the Company's Office or Agency in the Borough of Manhattan,
the City of New York for such purpose.
The Trustee initially shall be the Security Registrar, the Authenticating
Agent, and a Paying Agent. The Trustee presently has its Corporate Trust Office
at Four Albany Street, 4th Floor, New York, NY 10006. In addition, the Company
has appointed Bankers Trust Luxembourg, S.A. as a Paying Agent. Bankers Trust
Luxembourg, S.A.'S Office in Luxembourg is currently located at 14 Boulevard
F.D. Roosevelt, L-2450 Luxembourg. The Company may subsequently appoint a new
Office or Agency with respect to the Registered Securities.
The Indenture permits the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time as specified therein. The Indenture
also contains provisions permitting the waiver of compliance by the Company with
certain provisions of the Indenture. Furthermore, provisions in the Indenture
permit the waiver of certain past defaults under the Indenture and their
consequences.
-2-
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest, on this Security at the times, places and rates, and in the coin or
currency, herein and therein prescribed.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts applicable to
agreements made and to be performed entirely in such Commonwealth except that
the rights, protections, obligations, indemnities and immunities of the Trustee
under the Indenture and the Securities shall be governed by the laws of the
State of New York, without regard to the principles of conflicts of laws of
either state.
-3-
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
_____________ whose taxpayer identification number is _____________________ and
whose address including postal/zip code is _____________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing _____________________________ attorney-in-fact to transfer said
Security on the books of the Security Registrar with full power of substitution
in the premises.
Dated: Name:
__________________ _____________________________
By:
______________________________
Title:
_____________________________
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within instrument in
every particular, without enlargement or any
change whatsoever.
SIGNATURE GUARANTEED
___________________________________