-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, GY2d8rreNR5yCtvAB5MmZ5Jp2VO0iAiyH0EAxl+bEaReOX8GUfBGLzP92cFN25Xg WNOq9Z8Ekod2P3LjH2mGKQ== 0000097745-94-000042.txt : 19940517 0000097745-94-000042.hdr.sgml : 19940517 ACCESSION NUMBER: 0000097745-94-000042 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19940511 FILER: COMPANY DATA: COMPANY CONFORMED NAME: THERMO ELECTRON CORP CENTRAL INDEX KEY: 0000097745 STANDARD INDUSTRIAL CLASSIFICATION: 3829 IRS NUMBER: 042209186 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-45401 FILM NUMBER: 94527112 BUSINESS ADDRESS: STREET 1: 81 WYMAN ST STREET 2: P O BOX 9046 CITY: WALTHAM STATE: MA ZIP: 02254 BUSINESS PHONE: 6176221000 S-3/A 1 As filed with the Securities and Exchange Commission on May 11, 1994 Registration No. 33-45401 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------- POST-EFFECTIVE AMENDMENT NO. 1 Form S-3 REGISTRATION STATEMENT under The Securities Act of 1933 THERMO ELECTRON CORPORATION (Exact name of registrant as specified in charter) Delaware 04-2209186 (State or other jurisdiction (IRS Employer of incorporation or organization) Identification Number) 81 Wyman Street P.O. Box 9046 Waltham, MA 02254 (617) 622-1000 (Address, including zip code, and telephone number, including area code,of registrant's principal executive offices) Sandra L. Lambert, Secretary Thermo Electron Corporation 81 Wyman Street, P.O. Box 9046 Waltham, Massachusetts 02254-9046 (617) 622-1000 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: Seth H. Hoogasian, Esq. General Counsel Thermo Electron Corporation 81 Wyman Street, P.O. Box 9046 Waltham, Massachusetts 02254-9046 (617) 622-1000 Approximate date of commencement of proposed sale to public: From time to time after this Registration Statement is declared effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. | | 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, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. |X| PAGE EXPLANATORY NOTE Pursuant to Rule 416 promulgated under the Securities Act of 1993, as amended, this Amendment is being filed to include in this Registration Statement additional shares of Common Stock that may be offered hereby as a result of a three-for-two stock split effected by the Registrant. PAGE P R O S P E C T U S 1,200,000 SHARES THERMO ELECTRON CORPORATION COMMON STOCK PAR VALUE $1.00 PER SHARE This Prospectus relates to the offer and sale of 1,200,000 shares (the "Shares") of Common Stock, par value $1.00 per share (the "Common Stock"), of Thermo Electron Corporation (the "Company"). The Shares may be offered by certain shareholders of the Company (the "Selling Shareholders") from time to time in transactions on the New York Stock Exchange, in negotiated transactions, through the writing of options on the Shares, or a combination of such methods of sale, at fixed prices that may be changed, at market prices prevailing at the time of sale, at fixed prices that may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. The Selling Shareholders may effect such transactions by the sale of the Shares to or through broker-dealers, and such broker-dealers may receive compensation in the form of discounts, concessions or commissions from the Selling Shareholders and/or the purchasers of the Shares for whom such broker-dealers may act as agent or to whom they may sell as principal, or both (which compensation to a particular broker-dealer might be in excess of customary commissions). The Selling Shareholders and any broker-dealer who acts in connection with the sale of Shares hereunder may be deemed to be "underwriters" as that term is defined in the Securities Act of 1933, as amended (the "Securities Act"), and any commission received by them and profit on any resale of the Shares as principal might be deemed to be underwriting discounts and commissions under the Securities Act. Unless otherwise indicated, all share and per share amounts contained in this prospectus reflect the three-for-two stock split effected by the Company on October 28, 1993. None of the proceeds from the sale of the Shares will be received by the Company. The Company has agreed to bear all expenses (other than underwriting discounts and selling commissions, and fees and expenses of counsel or other advisors to the sellers of the Shares) in connection with the registration and sale of the Shares being registered hereby. The Company has agreed to indemnify the sellers of the Shares against certain liabilities, including liabilities under the Securities Act as underwriter or otherwise. PAGE THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. No dealer, salesman or other person has been authorized to give any information or to make any representations other than those contained or incorporated by reference in this Prospectus regarding the Company or the offering made by this Prospectus, and, if given or made, such information or representations must not be relied upon as having been authorized by the Company or by any other person. All information contained in this Prospectus is as of the date of this Prospectus. Neither the delivery of this Prospectus nor any sale or distribution and resale made hereunder shall, under any circumstances, create any implication that there has been no change in the affairs of the Company since the date hereof. This Prospectus does not constitute an offer to sell or a solicitation of any offer to buy any security other than the securities covered by this Prospectus, nor does it constitute an offer to or solicitation of any person in any jurisdiction in which such offer or solicitation may not be lawfully made. May __, 1994 2 PAGE AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following Regional Offices of the Commission: 7 World Trade Center, Suite 1300, New York, New York 10048 and 500 West Madison Street, Chicago, Illinois 60661. Copies of such material can also be obtained from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. The Common Stock of the Company is listed on the New York Stock Exchange, and the reports, proxy statements and other information filed by the Company with the Commission can be inspected at the office of the New York Stock Exchange, 20 Broad Street, New York, New York 10006. This Prospectus, which constitutes part of a Registration Statement filed by the Company with the Commission under the Securities Act, omits certain of the information contained in the Registration Statement. Reference is hereby made to the Registration Statement and to the exhibits relating thereto for further information with respect to the Company and the Shares offered hereby. Statements contained herein concerning provisions of documents are necessarily summaries of such documents, and each statement is qualified in its entirety by reference to the applicable document filed with the Commission. The Company undertakes to provide without charge to each person to whom a copy of this Prospectus has been delivered, on the written or oral request of such person, a copy of any or all of the documents that have been or may be incorporated in this Prospectus by reference, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference therein). Requests for such copies should be directed to: Sandra L. Lambert, Secretary, Thermo Electron Corporation, 81 Wyman Street, P.O. Box 9046, Waltham, Massachusetts 02254-9046 (telephone number: (617) 622-1000). THE COMPANY The Company develops, manufactures and markets environmental and analytical instruments, cogeneration systems, process equipment and biomedical products, and provides environmental and metallurgical services. In addition, the Company performs research and development based on advanced technologies for government and other customers. The Company conducts its business through its divisions and wholly-owned subsidiaries, as well as through majority-owned subsidiaries that are partially owned by the public or by private investors. 3 PAGE The Company was incorporated in 1956 and is a Delaware corporation. Its principal offices are located at 81 Wyman Street, Waltham, Massachusetts 02254-9046, telephone (617) 622-1000. SELLING SHAREHOLDERS The following table shows the names of Selling Shareholders, the number of shares of Common Stock each of them owned as of January 1, 1992, the number of shares that may be offered by each of them and the number of shares and percentage of the class each of them will own after completion of the offering, assuming all of the Shares being offered are sold. Shares of Common Stock Shares of Common Owned Prior Shares of Stock Owned Selling to the Common After Completion Shareholder Offering(1) Stock Being of Offering (1) ----------- ----------- ----- ------------ Offered ------- % of Number class ------ ----- County NatWest 298,500 298,500 0 - Securities Limited Daido International 12,000 12,000 0 - Inc. Daiwa American 10,500 10,500 0 - Balanced Portfolio Class Fund Daiwa International 15,000 15,000 0 - Growth Portfolio Class Fund Daiwa Securities 30,000 30,000 0 - Trust-Taiyo Life Global Bond Portfolio 13,500 13,500 0 - Class Fund The Nippon Credit 30,000 30,000 0 - Bank, Ltd. Nomura Securities 304,500 304,500 0 - International, Inc. Okura & Co. 7,500 7,500 0 - (America), Inc. The Sumitomo Trust & 150,000 150,000 0 - Banking Co., Ltd. 4 PAGE Taiyo Life Investment 22,500 22,500 0 - Ltd. - Bahama Tokio Marine Asset 22,500 22,500 0 - Management New York Co. Toyo Trust & Banking 15,000 15,000 0 - Co., Ltd. The Yasuda Mutual 58,500 58,500 0 - Life Insurance Company The Yasuda Trust & 210,000 210,000 0 - Banking Co., Ltd. ____________________________ (1) Ownership Calculated in accordance with Securities and Exchange Commission Rule 13d-3, promulgated under the Securities Exchange Act of 1934, as amended. Nomura Securities International, Inc. (one of the Selling Shareholders) and affiliates of certain of the other Selling Shareholders, namely County NatWest Securities Limited, Daiwa International Growth Portfolio Class Fund, Daiwa Securities Trust-Taiyo Life, Global Bond Portfolio Class Fund and Daiwa American Balanced Portfolio Class Fund, have served as placement agent and underwriter for certain offerings of securities by the Company and its affiliates (including the sale of the Shares from the Company to certain of the Selling Shareholders) in the past three years and have received compensation therefor. Such persons may serve in that capacity in the future. The Shares are being registered to permit public secondary trading of the Shares from time to time by the Selling Shareholders. All of the Shares being offered by the Selling Shareholders were acquired by them from the Company in private placement transactions pursuant to Purchase Agreements dated as of January 29, 1992 (the "Purchase Agreements"), at a gross purchase price per share of approximately $29.67. County NatWest Limited, Daiwa Securities America Inc. and Nomura Securities International, inc. (collectively, "the Placement Agents") acted as placement agents on behalf of the Company in connection with the sale of the Shares by the Company to the Selling Shareholders. The Company has agreed to pay the Placement Agents a fee of $1.04 per Share for their services. The Company has also agreed, among other things, to bear all expenses (other than underwriting discounts and selling commissions, and fees and expenses of counsel and other advisers to the Selling Shareholders) in connection with the registration and sale of the Shares being offered by the Selling Shareholders. Each Selling Shareholder represented in its respective Purchase Agreement that it was purchasing the Shares from the Company for investment, with no present intention of effecting a 5 PAGE distribution of such Shares. In recognition of the fact that these investors, even though purchasing the Shares without a view to distribution, may wish to be legally permitted to sell their Shares when they deem appropriate, the Company has filed with the Commission under the Securities Act a Registration Statement on Form S-3, of which this Prospectus forms a part, with respect to the resale of the Shares from time to time on the New York Stock Exchange or in privately-negotiated transactions and has agreed to prepare and file such amendments and supplements to the Registration Statement as may be necessary to keep the Registration Statement effective until all the Shares offered hereby have been sold pursuant thereto or until such Shares are no longer, by reason of Rule 144(k) under the Securities Act or any other rule of similar effect, required to be registered for the sale thereof by the Selling Shareholders. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents previously filed with the Commission are incorporated in this Prospectus by reference: 1. The Company's Annual Report on Form 10-K for the year ended January 2, 1993. 2. The description of the Company's Common Stock which is contained in its Registration Statement on Form 8-A, filed under the Securities Exchange Act of 1934, and declared effective on August 21, 1980, including any amendment, report or registration statement on Form 8-A filed for the purpose of updating such description. 3. The description of the Company's Preferred Stock Purchase Rights which is contained in its Registration Statement on Form 8-A, filed under the Securities Exchange Act of 1934 on May 17, 1988, including any amendment, report or registration statement on Form 8-A filed for the purpose of updating such description. 4. The Company's current report on Form 8-K, as amended, relating to events that occurred on February 26, 1993. 5. The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended April 3, 1993. 6. The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended July 3, 1993. 7. The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended October 2, 1993. All reports or proxy statements filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to the date of this Prospectus and prior to termination of the offering made hereby shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the respective dates of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other 6 PAGE subsequently filed document which also is or is deemed to be incorporated by reference herein modifies, supersedes or replaces such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. LEGAL OPINION Certain legal matters relating to the shares of Common Stock will be passed upon for the Company by Seth H. Hoogasian, General Counsel of the Company. Mr. Hoogasian owns or has the right to acquire 33,623 shares of the Company's Common Stock and 101,000 shares of common stock of the Company's subsidiaries. EXPERTS The financial statements and schedules included in the Company's Annual Report on Form 10-K for the year ended January 2, 1993 incorporated by reference in this Registration Statement have been audited by Arthur Andersen & Co., independent public accountants, as indicated in their reports with respect thereto, and are incorporated by reference herein in reliance upon the authority of said firm as experts in accounting and auditing. 7 PAGE PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution. The expenses in connection with the issuance and distribution of the securities which are being registered hereby, other than underwriting discounts and commissions, are as follows: Amount* ------- SEC registration fee ...................$ 11,125.00 New York Stock Exchange listing fee ...... 2,800.00 Legal fees and expenses ................. 25,000.00 Accounting fees and expenses ............ 1,500.00 Miscellaneous ........................... 10,000.00 TOTAL ..................................$ 50,425.00 *All amounts are estimated except SEC registration fee and New York Stock Exchange listing fee. All such expenses are paid by the Company. Item 15. Indemnification of Directors and Officers. (a) Section 145 of the General Corporation Law of the State of Delaware (Chapter 1, Title 8, Delaware Code of 1953) provides as follows: "(a) A corporation may 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 (other than an action by or in the right of the corporation) by reason of the fact that he 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, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he 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 conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a II - 1 PAGE manner which he 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 reasonable cause to believe that his conduct was unlawful. (b) A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he 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 against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made 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, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (d) Any indemnification under subsections (a) and (b) of this section (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, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made (1) 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, or (2) 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 (3) by the stockholders. (e) Expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of II - 2 PAGE such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys' fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate. (f) The indemnification and advancement of expenses, provided by, or granted pursuant to, the other subsections of 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 official capacity and as to action in another capacity while holding such office. (g) A corporation shall have power to purchase and maintain insurance on behalf of any person who 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 against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under this section. (h) For purposes of this section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. (i) For purposes of this section, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the II - 3 PAGE interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this section. (j) The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person." (b) Section 7 of Article NINTH of the Registrant's Restated Certificate of Incorporation provides as follows: "(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 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 in connection with such action, suit or proceeding if he acted in good faith and in a manner he 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 conduct was unlawful. (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 shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. II - 4 PAGE (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 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 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 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." (c) Article THIRTEENTH of the Registrant's Restated Certificate of Incorporation provides as follows: "No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision shall not eliminate or limit the liability of a director to the extent provided by applicable law (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. The foregoing provisions of this Article shall not eliminate the liability of a director for any act or omission occurring prior to the date on which this Article becomes effective. 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." II - 5 PAGE (d) The Registrant has an insurance policy issued by the Chubb Group which insures its directors and officers against certain liabilities which might be incurred in connection with the performance of their duties. (e) The Registrant has indemnification agreements with its directors and officers that provide the maximum indemnification allowed by law. Item 16. Exhibits. See the Exhibit Index included immediately preceding the exhibits to this Registration Statement. Item 17. Undertakings (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose 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 II - 6 PAGE such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) If the Registrant is a foreign private issuer, to file a post-effective amendment to the registration statement to include any financial statements required by Rule 3-19 of Regulation S-X at the start of any delayed offering or throughout a continuous offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement 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. (c) 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. II - 7 PAGE 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 Amendment to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Waltham, Commonwealth of Massachusetts, on May 11, 1994. THERMO ELECTRON CORPORATION By: /s/George N. Hatsopoulos* --------------------------- George N. Hatsopoulos President Pursuant to the requirements of the Securities Act of 1933, this Amendment on Form S-3 of Thermo Electron Corporation has been signed below by the following persons in the capacities and on the dates indicated: Signature Title Date --------- ----- ---- /s/ George N. Hatsopoulos* President (Chief May 11,1994 -------------------------- George N. Hatsopoulos Executive Officer and Director /s/ John N. Hatsopoulos* Executive Vice May 11, 1994 -------------------------- John N. Hatsopoulos President (Chief Financial Officer) /s/ Paul F. Kelleher* Vice President, May 11, 1994 -------------------------- Paul F. Kelleher (Chief Accounting Officer) Director May , 1994 -------------------------- -- John M. Albertine Director May ,1994 -------------------------- -- Peter O. Crisp /s/ Elias P. Gyftopoulos* Director May 11, 1994 -------------------------- Elias P. Gyftopoulos II - 8 PAGE /s/ Frank Jungers* Director May 11,1994 ------------------------- Frank Jungers Director May ,1994 -------------------------- -- Robert A. McCabe /s/ Frank E. Morris* Director May 11, 1994 -------------------------- Frank E. Morris /s/ Donald E. Noble* Director May 11, 1994 -------------------------- Donald E. Noble Director May ,1994 -------------------------- -- Hutham S. Olayan /s/ Roger D. Wellington* Director May 11, 1994 -------------------------- Roger D. Wellington * The undersigned Sandra L. Lambert, by signing her name hereto, does hereby execute this Amendement on behalf of each of the above-named persons pursuant to powers of attorney by each person as filed with the Securities and Exchange Commission. /s/ Sandra L. Lambert ------------------------- Sandra L. Lambert Attorney-in-Fact AA940350053 II - 9 PAGE EXHIBIT INDEX No. Description Page --- ----------- ---- 4.1 Registrant's Restated Certificate of Incorporation, as amended (filed as Exhibit 4.1 to the Registrants Registration Statement on Form S-3 (No. 33-64324) and incorporated herein by reference). 4.2 Rights Agreement dated as of May 4, 1998 between the Registrant and The First National Bank of Boston, which includes as Exhibit A the form of Certificate of Designations, as Exhibit B the form of Rights Certificates, and as Exhibit C the Summary of Rights to Purchase Preferred Stock (filed as Exhibit 4.1 to the Registrant's Current Report on Form 8-K, as amended (File No. 1-8002) relating to events that occurred on May 4, 1998 and incorporated by reference herein). 4.3 Specimen Common Stock Certificate of the Registrant (filed as Exhibit 4.3 to the Registrant's Registration Statement on Form S-3 (No. 33-39434) and incorporated herein by reference). 5 Opinion of Seth H. Hoogasian, Esq. 23.1 Consent of Seth H. Hoogasian, Esq. (included in Exhibit 5). 23.2 Consent of Arthur Andersen & Co. (filed as Exhibit 24 to the Registrant's Annual Report on Form 10-K for the year ended January 2, 1993 (File No.1-8002) and incorporated herein by reference). 24 Power of Attorney (previously filed). 99 Form of Purchase Agreement between the Registrant and each of the Selling Shareholders EX-5 2 EXHIBIT 5 May 11, 1994 Securities and Exchange Commission Judiciary Plaza 450 Fifth Street, N.W. Washington, DC 20549 Re: Registration Statement on Form S-3 Relating to Shares of Common Stock, Par Value $1.00 Per Share, of Thermo Electron Corporation ------------------------------------------------------ Dear Sirs: I am General Counsel to Thermo Electron Corporation (the "Company") and have acted as counsel in connection with the registration under the Securities Act of 1933, as amended (the "Act"), on Form S-3 of 1,200,000 shares of the Company's Common Stock, par value $1.00 per share (the "Shares"), which may from time to time be sold by certain selling shareholders of the Company. I or members of my staff have reviewed the corporate proceedings taken by the Company with respect to the authorization of the issuance of the Shares. I or members of my staff have also examined and relied upon originals or copies, certified or otherwise authenticated to our satisfaction, of all corporate records, documents, agreements or other instruments of the Company and have made all investigations of law and have discussed with the Company's representatives all questions of fact as deemed necessary or appropriate. Based upon and subject to the foregoing, I am of the opinion that the Shares have been duly authorized by the Company and when issued as contemplated by the Registration Statement will be validly issued, fully paid and non-assessable. Pursuant to the requirements of the Act, I hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement, including any amendments thereto, and to the use of my name under the caption "Legal Opinion" in the prospectus constituting a part thereof. Very truly yours, /s/ Seth H. Hoogasian Seth H. Hoogasian -----END PRIVACY-ENHANCED MESSAGE-----