EXHIBIT 1.1
AMENDMENT TO
RIGHTS AGREEMENT
AMENDMENT (the "Amendment"), dated as of May 7, 2006, to the Rights
Agreement, dated as of September 15, 2005 (the "RIGHTS AGREEMENT"), between
Thermo Electron Corporation, a Delaware corporation (the "COMPANY"), and
American Stock Transfer & Trust Company, as Rights Agent (the "RIGHTS AGENT").
RECITALS
WHEREAS, the Company and the Rights Agent have heretofore executed
and entered into the Rights Agreement.
WHEREAS, Trumpet Merger Corporation ("MERGER SUB"), a Delaware
corporation and wholly owned subsidiary of the Company, Xxxxxx Scientific
International Inc., a Delaware corporation ("XXXXXX"), and the Company
contemplate entering into an Agreement and Plan of Merger (the "PLAN") pursuant
to which Merger Sub will merge with and into Xxxxxx (the "MERGER"). The Board of
Directors of the Company has approved the Plan.
WHEREAS, pursuant to Section 27 of the Rights Agreement, prior to a
Distribution Date (as defined in the Rights Agreement) the Company may, and the
Rights Agent shall if the Company so directs, from time to time supplement and
amend the Rights Agreement.
WHEREAS, the Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and desirable
in connection with the foregoing and the Company and the Rights Agent desire to
evidence such amendment in writing.
WHEREAS, all acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
Accordingly, the parties agree as follows:
A. AMENDMENT OF SECTION 1. Section 1 of the Rights Agreement
is hereby amended and supplemented to add the following definitions in the
appropriate locations:
(sa) "Xxxxxx" means Xxxxxx Scientific International Inc., a Delaware
corporation.
(va) "Merger" shall mean the "Merger" as such term is defined in the
Plan.
(xa) "Plan" shall mean the Agreement and Plan of Merger, dated as of
May 7, 2006, by and between the Company, Merger Sub and Xxxxxx, as it
may be amended from time to time.
B. AMENDMENT OF THE DEFINITION OF "ACQUIRING PERSON". The definition
of "Acquiring Person" in Section 1(a) of the Rights Agreement is hereby amended
and supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary,
Xxxxxx or any of its Affiliates or Associates shall not be deemed to be an
Acquiring Person solely by virtue of (i) the execution of the Plan, (ii)
the consummation of the Merger or (iii) the consummation of any other
transaction contemplated in the Plan, including without limitation the
consummation thereof."
C. AMENDMENT OF THE DEFINITION OF "DISTRIBUTION DATE". The definition
of "Distribution Date" in Section 1(n) of the Rights Agreement is hereby amended
and supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely as the
result of (i) the execution of the Plan, (ii) the consummation of the
Merger, or (iii) the consummation of any other transaction contemplated in
the Plan, including without limitation the consummation thereof."
D. AMENDMENT OF THE DEFINITION OF "STOCK ACQUISITION DATE". The
definition of "Stock Acquisition Date" in Section 1(11) of the Rights Agreement
is hereby amended and supplemented by adding the following sentence at the end
thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Stock Acquisition Date shall not be deemed to have occurred solely as the
result of (i) the execution of the Plan, (ii) the consummation of the
Merger, or (iii) the consummation of any other transaction contemplated in
the Plan, including without limitation the consummation thereof."
E. AMENDMENT OF SECTION 3. Section 3 of the Rights Agreement is hereby
amended and supplemented to add the following sentence at the end thereof as
Section 3(d):
"Nothing in this Rights Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable rights,
remedies or claims under this Rights Agreement by virtue of the execution
of the Plan or by virtue of any of the transactions contemplated by the
Plan, including without limitation the consummation thereof."
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F. EFFECTIVENESS. This Amendment shall become effective as of the date
of the Plan. If the Plan is terminated without the Effective Time (as defined in
the Plan) having occurred, this Amendment shall be null and void. Except as
amended hereby, the Rights Agreement shall remain in full force and effect and
shall be otherwise unaffected hereby.
G. MISCELLANEOUS. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state. This Amendment
may be executed in any number of counterparts, each of such counterparts shall
for all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. If any provision, covenant
or restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, illegal or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be effected, impaired or invalidated.
Except as otherwise expressly provided herein, or unless the context otherwise
requires, all terms used herein have the meanings assigned to them in the Rights
Agreement. The Rights Agent and the Company hereby waive any notice requirement
under the Rights Agreement pertaining to the matters covered by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the date and year first above written.
Attest: THERMO ELECTRON CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx Name: Xxxx X. Xxxxxxxxx
Title: Associate General Counsel Title: Vice President
Attest: AMERICAN STOCK TRANSFER &
TRUST COMPANY
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx X. Xxxxx Name: Xxxxx Xxxxxxxxx
Title: Administrative Assistant Title: Vice President
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