-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LWno5VR1TvEm8gaW4QqAcTwcCG4+5+q2W+D4El/57lrdsmvsvKdh1xSONXknVP+W YqlVsawZaEKt6VPZy/nwYA== 0000889812-98-001566.txt : 19980625 0000889812-98-001566.hdr.sgml : 19980625 ACCESSION NUMBER: 0000889812-98-001566 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19980624 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: METTLER TOLEDO INTERNATIONAL INC/ CENTRAL INDEX KEY: 0001037646 STANDARD INDUSTRIAL CLASSIFICATION: MISC INDUSTRIAL & COMMERCIAL MACHINERY & EQUIPMENT [3590] IRS NUMBER: 133668641 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-51925 FILM NUMBER: 98652999 BUSINESS ADDRESS: STREET 1: IM LANGACHER STREET 2: 65 E 55TH STP O BOX MT 100 CH 8606 CITY: SWITZERLAND STATE: V8 BUSINESS PHONE: 2126445900 MAIL ADDRESS: STREET 1: IM LANGACHER STREET 2: P O BOX MT 100 CH 8606 GREIFENSEE CITY: SWITZERLAND STATE: V8 FORMER COMPANY: FORMER CONFORMED NAME: METTLER TOLEDO INTERNATIONAL INC DATE OF NAME CHANGE: 19971117 FORMER COMPANY: FORMER CONFORMED NAME: MT INVESTORS INC DATE OF NAME CHANGE: 19970411 S-3/A 1 AMENDMENT NO. 2 TO REGISTRATION STATEMENT AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 24, 1998 REGISTRATION NO. 333-51925 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 2 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ METTLER-TOLEDO INTERNATIONAL INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 3596 13-3668641 (STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
------------------------ WILLIAM P. DONNELLY METTLER-TOLEDO INTERNATIONAL INC. IM LANGACHER PARK AVENUE TOWER P.O. BOX MT-100 65 EAST 55TH STREET, 27TH FLOOR CH 8606 GREIFENSEE, SWITZERLAND NEW YORK, NY 10022 011-41-944-22-11 (212) 644-5900 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE INCLUDING AREA CODE, OF AGENT FOR SERVICE) OFFICES)
------------------------ Copies to: TIMOTHY E. PETERSON, ESQ. JAMES C. SCOVILLE, ESQ. FRIED, FRANK, HARRIS, SHRIVER & JACOBSON DEBEVOISE & PLIMPTON 4 CHISWELL STREET 875 THIRD AVENUE LONDON, EC1Y 4UP, ENGLAND NEW YORK, NEW YORK 10022 (011-44-171) 972-9600 (212) 909-6000
------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as practicable after the effective date of this Registration Statement. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. / / If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / - ------------------ If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / - ------------------ If delivery of the Prospectus is expected to be made pursuant to Rule 434, please check the following box. /x/ ------------------------ CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED MAXIMUM OFFERING MAXIMUM AGGREGATE TITLE OF SECURITIES AMOUNT TO BE PRICE PER OFFERING AMOUNT OF TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(1)(2) REGISTRATION FEE(2)(3) Common Stock, $.01 par value...... 11,500,000 $19.78 $227,470,000 $67,104
(1) Includes shares of Common Stock that may be sold pursuant to the Underwriters' over-allotment option. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c), using the average of the high and low prices reported on the New York Stock Exchange on May 4, 1998. (3) The Company previously paid a filing fee of $98,978. ------------------------ THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- EXPLANATORY NOTE This Amendment No.2 to the Registration Statement consists of the Registration Statement facing page, this explanatory note, Part II to the Registration Statement and certain exhibits being filed herewith. The Prospectus has been omitted from this Amendment No. 2 as no changes have been made to the Prospectus previously filed on June 4, 1998. PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION* The following table shows the expenses, other than underwriting discounts and commissions, to be incurred by the Company in connection with the sale and distribution of securities being registered by the Company. SEC Registration Fee.............................................................. $ 98,978 NASD Filing Fee................................................................... 30,500 Blue Sky Fees and Expenses........................................................ 5,000 Legal Fees and Expenses........................................................... 225,000 Accounting Fees and Expenses...................................................... 50,000 Printing Expenses................................................................. 200,000 Miscellaneous Expenses............................................................ 40,522 -------- Total........................................................................... $650,000 -------- --------
- ------------------ * Except for the SEC registration fee and the NASD filing fee, all of the foregoing expenses have been estimated. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Company, as a Delaware corporation, is empowered by Section 145 of the DGCL, subject to the procedures and limitations stated therein, to indemnify any person against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending or completed action, suit or proceeding in which such person is made or threatened to be made a party by reason of his being or having been a director, officer, employee or agent of the Company or his serving at the request of the Company as a director, officer, employee or agent of another company or other entity. The statute provides that indemnification pursuant to its provisions is not exclusive of other rights of indemnification to which a person may be entitled under any by-law, agreement, vote of stockholders or disinterested directors, or otherwise. The Amended By-laws provide for indemnification by the Company of its directors and officers to the full extent authorized by the DGCL. Pursuant to Section 145 of the DGCL, the Company has purchased insurance on behalf of its present and former directors and officers against liabilities asserted against and incurred by them in such capacity or arising out of their status as such. Pursuant to specific authority granted by Section 102 of the DGCL, the Amended and Restated Certificate of Incorporation contains the following provision regarding indemnification of directors: "To the fullest extent permitted by the Delaware General Corporation Law as the same exists or may hereafter be amended, a Director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director." The Amended By-laws contain the following provision regarding indemnification of directors and officers: "The Corporation shall indemnify to the full extent authorized by law any person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director, officer, employee or agent of the Corporation or is or was serving, at the request of the Corporation, as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise." The Company has entered into agreements to provide indemnification for their directors and certain officers in addition to the indemnification provided for in the Amended and Restated Certificate of Incorporation and Amended By-laws. These agreements, among other things, indemnify the directors, to the fullest extent provided by Delaware law, for certain expenses (including attorneys' fees), losses, claims, liabilities, judgments, fines and settlement amounts incurred by such indemnitee in any action or proceeding, including any action by or in the right of the Company, on account of services as a director or officer of any affiliate of the Company, or as a II-1 director or officer of any other company or enterprise that the indemnitee provides services to at the request of the Company. The Management Agreement between Mettler-Toledo, Inc. and AEA Investors provides for indemnification of employees of AEA Investors who serve as directors of the Company. ITEM 16. EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ---------- -------------------------------------------------------------------------------------------------------- 1.1** -- Form of U.S. Purchase Agreement. 1.2** -- Form of International Purchase Agreement. 2.1 -- Stock Purchase Agreement between AEA-MT Inc., AG fur Prazisionsinstrumente and Ciba-Geigy AG, as amended (Filed as Exhibit 2.1 to the Registration Statement, as amended, on Form S-1, of the Company (Reg. No. 33-09621) and incorporated herein by reference). 2.2 -- Share Sale and Purchase Agreement relating to the acquisition of the entire issued share capital of Safeline Limited (Filed as Exhibit 2 to the Current Report on Form 8-K of Mettler-Toledo Holding Inc. dated June 3, 1997 and incorporated herein by reference). 4.1 -- Specimen Form of the Company's Common Stock Certificate Filed as Exhibit 4.3 to the Registration Statement, as amended, on Form S-1 of the Company (Reg. No. 333-35597) and incorporated herein by reference). 5.1 -- Opinion of Fried, Frank, Harris, Shriver & Jacobson, counsel to the Company, as to the legality of the securities being registered. 23.1 -- Consent of Fried, Frank, Harris, Shriver & Jacobson (included in Exhibit 5.1). 23.2** -- Consent of KPMG Fides Peat, independent auditors. 24.1** -- Powers of Attorney.
- ------------------ ** Previously filed ITEM 17. UNDERTAKINGS Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. The undersigned registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of Prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of Prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of Prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) The undersigned registrant hereby undertakes as follows: that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any II-2 person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form. (4) The registrant undertakes that every prospectus: (i) that is filed pursuant to paragraph (3) immediately preceding, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (5) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. (6) The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. II-3 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED IN THE CITY OF NEW YORK, STATE OF NEW YORK, ON THE 24TH OF JUNE, 1998. METTLER-TOLEDO INTERNATIONAL INC. By: /s/ WILLIAM P. DONNELLY ---------------------------------- William P. Donnelly Chief Financial Officer PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED:
SIGNATURE TITLE DATE - ------------------------------------------ -------------------------------------------------- ------------ * President and Chief Executive Officer June 24, 1998 - ------------------------------------------ (Principal Executive Officer), Chairman of the Robert F. Spoerry Board of Directors /s/ WILLIAM P. DONNELLY Chief Financial Officer June 24, 1998 - ------------------------------------------ William P. Donnelly * Director June 24, 1998 - ------------------------------------------ Philip Caldwell * Director June 24, 1998 - ------------------------------------------ Reginald H. Jones * Director June 24, 1998 - ------------------------------------------ John D. Macomber * Director June 24, 1998 - ------------------------------------------ John M. Manser * Director June 24, 1998 - ------------------------------------------ Laurence Z. Y. Moh * Director June 24, 1998 - ------------------------------------------ Thomas P. Salice
* By: /s/ WILLIAM P. DONNELLY -------------------------------- William P. Donnelly Attorney-in-Fact II-4 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ---------- -------------------------------------------------------------------------------------------- 1.1** -- Form of U.S. Purchase Agreement. 1.2** -- Form of International Purchase Agreement. 2.1 -- Stock Purchase Agreement between AEA-MT Inc., AG fur Prazisionsinstrumente and Ciba-Geigy AG, as amended (Filed as Exhibit 2.1 to the Registration Statement, as amended, on Form S-1, of the Company (Reg. No. 33-09621) and incorporated herein by reference). 2.2 -- Share Sale and Purchase Agreement relating to the acquisition of the entire issued share capital of Safeline Limited (Filed as Exhibit 2 to the Current Report on Form 8-K of Mettler-Toledo Holding Inc. dated June 3, 1997 and incorporated herein by reference). 4.1 -- Specimen Form of the Company's Common Stock Certificate Filed as Exhibit 4.3 to the Registration Statement, as amended, on Form S-1 of the Company (Reg. No. 333-35597) and incorporated herein by reference). 5.1 -- Opinion of Fried, Frank, Harris, Shriver & Jacobson, counsel to the Company, as to the legality of the securities being registered. 23.1 -- Consent of Fried, Frank, Harris, Shriver & Jacobson (included in Exhibit 5.1). 23.2** -- Consent of KPMG Fides Peat, independent auditors. 24.1** -- Powers of Attorney.
- ------------------ ** Previously filed EX-5.1 2 OPINION OF FRIED, FRANK, HARRIS, SHRIVER & JACOBSON June 24, 1998 Mettler-Toledo International Inc. Im Langacher P.O. Box MT-100 CH 8606 Greifensee, Switzerland Ladies and Gentlemen: We are acting as special counsel to Mettler-Toledo International Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing with the U.S. Securities and Exchange Commission under the U.S. Securities Act of 1933, as amended (the "Securities Act"), of a registration statement on Form S-3 (Registration No. 333-51925) (the "Registration Statement") pertaining to the registration of a proposed offering of up to 11,500,000 shares (the "Selling Shareholder Shares") of the Company's common stock, par value $.01 per share (the "Common Stock"), which are proposed to be offered to the public by certain shareholders of the Company. With your permission, all assumptions and statements of reliance herein have been made without any independent investigation or verification on our part except to the extent otherwise expressly stated, and we express no opinion with respect to the subject matter or accuracy of such assumptions or items relied upon. For purposes of this opinion, we have examined the originals, or certified, conformed or reproduction copies, of all records, agreements, instruments and documents as we have deemed relevant or necessary as the basis for the opinions hereinafter expressed. In all such examinations, we have assumed the genuineness of all signatures on original or certified copies and the conformity to original or certified copies of all copies submitted to us as conformed or reproduction copies. As to various questions of fact relevant to such opinions, we have relied upon certificates and statements of public officials and officers or representatives of the Company and of others. Based upon the foregoing and subject to the limitations set forth herein, it is our opinion that the Common Stock has been duly authorized and the Selling Shareholder Shares have been duly and validly issued and are fully paid and nonassessable. -2- Mettler-Toledo International Inc June 24, 1998 This opinion is limited to the General Corporation Law of the State of Delaware. We hereby consent to the filing of this opinion as an exihibit to the Registration Statement and to the reference to this firm under the caption "Legal Matters" in the Prospectuses forming part of the Registration Statement to the extent that a "Legal Matters" section is included in such Prospectuses. In giving such consent, we do not hereby admit that we are in the category of such persons whose consent is required under Section 7 of the Securities Act. Very truly yours, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON By: ------------------------------------ Timothy E. Peterson -----END PRIVACY-ENHANCED MESSAGE-----