-----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, FidJ5Ms/2CJ228XNif/vp9tRookzabXRrA12Rw65+/YqkqOn3eN/i68y5MJGaFSs k3787PpVaLlxCukXi/i62w== 0000097745-96-000008.txt : 19960117 0000097745-96-000008.hdr.sgml : 19960117 ACCESSION NUMBER: 0000097745-96-000008 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960116 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: THERMO ELECTRON CORP CENTRAL INDEX KEY: 0000097745 STANDARD INDUSTRIAL CLASSIFICATION: MEASURING & CONTROLLING DEVICES, NEC [3829] IRS NUMBER: 042209186 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-00197 FILM NUMBER: 96503509 BUSINESS ADDRESS: STREET 1: 81 WYMAN ST STREET 2: P O BOX 9046 CITY: WALTHAM STATE: MA ZIP: 02254 BUSINESS PHONE: 6176221000 S-3 1 As filed with the Securities and Exchange Commission on January 12, 1996 Registration No. 033-_____ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 __________________ FORM S-3 Registration Statement Under The Securities Act of 1933 __________________ THERMO ELECTRON CORPORATION (Exact name of registrant as specified in its charter) ------------------ Delaware 04-2209186 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) ------------------ 81 Wyman Street P. O. Box 9046 Waltham, Massachusetts 02254-9046 (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, MA 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, Esquire General Counsel Thermo Electron Corporation 81 Wyman Street Waltham, Massachusetts 02254-9046 ______________________ Approximate date of commencement of proposed sale to the public: As soon as practicable after the Registration Statement has become 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. [ ] PAGE 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, please check the following box. [ x ] __________________ CALCULATION OF REGISTRATION FEE Proposed Title of Maximum Proposed securities Amount Offering Maximum Amount of to be to be Price Per Aggregate Registration registered registered Share Offering Price Fee Common Stock, $1.00 par 7,312 value per shares $46 15/16 $343,207 (1) $119 (1) share (1) (1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) based on the average of the high and low sales prices of the Common Stock on the New York Stock Exchange on January 11, 1996. ------------------------- 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 THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. PAGE PROSPECTUS 7,312 Shares THERMO ELECTRON CORPORATION Common Stock This Prospectus relates to 7,312 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 a certain shareholder of the Company (the "Selling Shareholder") 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 prices related to such prevailing market prices or at negotiated prices. The Selling Shareholder may effect such transactions by selling 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 Shareholder and/or the purchasers of the Shares for whom such broker-dealers may act as agent or to whom they sell as principal, or both (which compensation to a particular broker-dealer might be in excess of customary commissions). The Selling Shareholder and any broker-dealer who acts in connection with the sales 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 commissions 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. The Shares were originally acquired by the Selling Shareholder from Thermo Power Corporation, a majority-owned subsidiary of the Company ("Thermo Power"), pursuant to a Stock Purchase Agreement dated as of December 27, 1995 by and among Thermo Power, the Selling Shareholder and the Company. See "Selling Shareholder." _____________ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. _____________ None of the proceeds from the sale of the Shares by the Selling Shareholder 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 advisers to the Selling Shareholder) in connection with the registration and sale of the Shares being registered hereby. The Company has agreed to indemnify the Selling Shareholder against certain liabilities, including liabilities under the Securities Act as underwriters or otherwise. __________, 1996 1 PAGE _____________ 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. 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: 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and 7 World Trade Center, Suite 1300, New York, New York 10048. 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 offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. 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 monitoring and analysis instruments, biomedical products including heart-assist systems, mammography systems and respiratory care products, paper-recycling and papermaking equipment, alternative-energy systems, industrial process equipment, and other specialized products. The Company also provides environmental and metallurgical services and conducts advanced technology research and development. The Company performs its business through its divisions and wholly owned subsidiaries, as well as majority-owned subsidiaries that are partially owned by the public or by private investors. The Company has developed leading market positions in many lines of business, including environmental monitoring and analysis instruments, mammography systems, biomass power plants, and paper-recycling equipment and papermaking accessories. The Company is currently seeking to establish leading market positions in the fields of left ventriclar-assist devices, explosives-detection systems, thermal soil-remediation services and dedicated 3 PAGE natural gas engines. The Company is developing new products in its Advanced Technologies segment, as well as other segments. A key element in the Company's growth has been its ability to commercialize innovative products and services emanating from research and development activities conducted at the Company's various subsidiaries and divisions. The Company's strategy has been to identify business opportunities arising from social, economic and regulatory issues and to seek a leading market share through the application of proprietary technology. As part of this strategy, the Company continues to focus on the acquisition of complementary businesses that can be integrated into existing core businesses to leverage the Company's access to new markets. The Company believes that maintaining an entrepreneurial atmosphere is essential to continuing its growth and development. In order to preserve this environment, the Company adopted the strategy of having certain subsidiaries sell a minority interest to outside investors. The Company believes that this strategy provides additional motivation and incentives for the management of the subsidiaries through the establishment of subsidiary-level stock options, as well as capital to support the subsidiaries' growth. The Company's wholly owned and majority-owned subsidiaries are provided with centralized strategic planning, corporate development, administrative, financial and other services that would not be available to many independent companies of similar size. As of November 1, 1995, the Company had 16 subsidiaries that have sold minority equity interests, 12 of which are publicly traded. The Company, a Delaware corporation, was incorporated in 1956, completed its initial public offering in 1967, and was listed on the New York Stock Exchange in 1980. The principal executive office of the Company is located at 81 Wyman Street, Waltham, Massachusetts 02254-9046 (telephone: 617-622-1000). RECENT DEVELOPMENTS On March 1, 1995, the Company's Thermo Instrument Systems Inc. ("Thermo Instrument") subsidiary entered into an agreement with Fisons plc ("Fisons") to acquire the Scientific Instruments Division of Fisons for approximately 202 million British pounds sterling. On April 13, 1995, Thermo Instrument announced that it had received a "second request" for information regarding the transaction from the U.S. Federal Trade Commission ("FTC"). The FTC and the Office of Fair Trading in England ("OFT") have expressed concern that completion of the transaction in its original form would affect the competition in the market for mass spectrometers. On November 1, 1995, Thermo Instrument and Fisons entered into an amendment to the agreement that, among other things, extends the termination date of the agreement from November 17, 1995 to March 31, 1996, and establishes a framework for modifying the transaction to satisfy the concerns of the FTC and OFT. On November 17, 1995, Thermo Instrument announced that it had received clearance to complete the acquisition from the Bundeskartellamt, Germany's competition regulatory authority. In addition to receipt of required competition regulatory approvals, completion of the transaction is subject to consent of certain third parties and the satisfaction of other customary closing conditions. 4 PAGE On January 3, 1996, the Company sold at par $585 million principal amount of its 4 1/4% Convertible Subordinated Debentures due 2003. The debentures are convertible at the option of the holders thereof into shares of Common Stock at an initial conversion price (subject to future adjustments) of $56.70 per share. SELLING SHAREHOLDER The following table sets forth the name of the Selling Shareholder, the number of shares of Common Stock owned by the Selling Shareholder, the number of Shares that may be offered by the Selling Shareholder pursuant to this Prospectus, and the number of Shares the Selling Shareholder will own after completion of the offering, assuming all of the Shares being offered hereby are sold. Shares of Shares Common Stock Owned Owned Prior Shares After to the Being Completion Selling Shareholder Offering Offered of the --------------------- -------- ------- Offering -------- National Westminster Bank Plc, New York 7,312 7,312 0 Branch (1) _______________ (1) The Selling Shareholder and certain of its affiliates have provided from time to time, and expect to provide in the future, investment banking services to the Company and its affiliates for which the Selling Shareholder has received and will receive customary fees and commissions. The Shares are being registered to permit public secondary trading of the Shares from time to time by the Selling Shareholder. All of the Shares being offered by the Selling Shareholder were acquired from Thermo Power Corporation, a majority-owned subsidiary of the Company ("Thermo Power"), pursuant to a Stock Purchase Agreement dated as of December 27, 1995 by and among Thermo Power, the Selling Shareholder and the Company (the "Purchase Agreement"). In the Purchase Agreement, the Company agreed, among other things, to bear all expenses (other than underwriting discounts, selling commissions, and fees and expenses of counsel and other advisors to the Selling Shareholder) in connection with the registration and sale of the Shares being offered by the Selling Shareholder. See "Sale of Shares." The Company has agreed to prepare and file such amendments and supplements to the Registration Statement of which this Prospectus forms a part as may be necessary to keep the Registration Statement effective until all the Shares registered thereunder have been sold pursuant thereto or until, by reason of Rule 144(k) of the Commission under the Securities Act or any other rule of similar effect, the Shares are no longer required to be registered for the sale thereof by the Selling Shareholder. SALE OF SHARES 5 PAGE The Company has been advised that the Selling Shareholder may sell Shares 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 which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market price or at negotiated prices. The Selling Shareholder may effect such transactions by selling 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 Shareholder and/or the purchasers of the Shares for whom such broker-dealers may act as agent or to whom they sell as principal, or both (which compensation to a particular broker-dealer might be in excess of customary commissions). The Selling Shareholder and any broker-dealers who act in connection with the sale of Shares hereunder may be deemed to be "underwriters" as that term is defined in the Securities Act, and any commissions 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. The Company has agreed to indemnify the Selling Shareholder against certain liabilities, including liabilities under the Securities Act as underwriters or otherwise. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents previously filed with the Commission are incorporated in this Prospectus by reference: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1994, as amended. (b) The Company's Current Report on Form 8-K filed with the Commission on March 6, 1995 with respect to events occurring on March 2, 1995. (c) The Company's Quarterly Report on Form 10-Q for the three-month period ended April 1, 1995, as amended. (d) The Company's Quarterly Report on Form 10-Q for the three-month period ended July 1, 1995. (e) The Company's Quarterly Report on Form 10-Q for the three-month period ended September 30, 1995. (f) The Company's Current Report on Form 8-K filed with the Commission on January 9, 1996 with respect to events occurring on January 3, 1996. (g) The description of the Common Stock which is contained in the Company's Registration Statement on Form 8-A, filed under the Exchange Act, as amended. All reports or proxy statements filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the 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 6 PAGE by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein modifies, supersedes or replaces that 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 MATTERS The validity of the Common Stock offered hereby has been passed upon by Seth H. Hoogasian, Esq., General Counsel of the Company. Mr. Hoogasian owns or has the right to acquire, pursuant to the exercise of stock options, shares of the Common Stock of the Company and of certain of the Company's subsidiaries, the fair market value of which exceeds $50,000. EXPERTS The financial statements of the Company incorporated in this Prospectus and the financial statement schedules incorporated in the Registration Statement by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1994, as amended, have been audited by Arthur Andersen LLP, independent public accountants, to the extent and for the periods as indicated in their reports with respect thereto, and are incorporated herein and therein in reliance upon the authority of said firm as experts in giving said reports. Reference is made to said report with respect to the Company's financial statements, which includes an explanatory fourth paragraph with respect to the change in the method of accounting for investments in debt and marketable securities in 1994 as discussed in Note 2 to the financial statements. 7 PAGE PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution. The expenses incurred by the Company in connection with the issuance and distribution of the securities being registered are as follows. All amounts are estimated except the Securities and Exchange Commission registration fee. Amount ------ Registration fee - Securities and Exchange Commission ...$ 119 Legal fees and expenses ................................. 1,000 Accounting fees and expenses ............................ 5,000 Miscellaneous ........................................... 1,000 Total ..............................................$ 7,119 Item 15. Indemnification of Directors and Officers. The Delaware General Corporation Law and the Company's Amended and Restated Certificate of Incorporation and By-Laws limit the monetary liability of directors to the Company and to its stockholders and provide for indemnification of the Company's officers and directors for liabilities and expenses that they may incur in such capacities. In general, officers and directors are indemnified with respect to actions taken in good faith in a manner reasonably believed to be in, or not opposed to, the best interests of the Company, and with respect to any criminal action or proceeding, actions that the indemnitee had no reasonable cause to believe were unlawful. The Company also has indemnification agreements with its directors and officers that provide for the maximum indemnification allowed by law. The Company maintains officers' and directors' insurance covering certain liabilities that may be incurred by officers and directors in the performance of their duties. The Selling Shareholder is obligated under the Purchase Agreement to indemnify directors, officers and controlling persons of the Registrant against certain liabilities, including liabilities under the Securities Act. Item 16. Exhibits and Financial Statement Schedules. 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: 8 PAGE (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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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 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. (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 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, 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 9 PAGE 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. 10 PAGE SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant hereby 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 Waltham, Commonwealth of Massachusetts, on this 11th day of January, 1996. THERMO ELECTRON CORPORATION By: George N. Hatsopoulos ------------------------ George N. Hatsopoulos, President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints John N. Hatsopoulos, Paul F. Kelleher, Seth H. Hoogasian, Sandra L. Lambert and Jonathan W. Painter, and each of them, as his true and lawful attorneys-in-fact and agents for the undersigned, with full power of substitution, for and in the name, place and stead of the undersigned, to sign and file with the Securities and Exchange Commission under the Securities Act of 1933 any and all amendments and exhibits to this Registration Statement and any and all applications and other documents to be filed with the Securities and Exchange Commission pertaining to the registration of the securities covered hereby, with full power and authority to do and perform any and all acts and things whatsoever requisite and necessary or desirable. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- President, Chief Executive Officer, George N. Hatsopoulos Chairman of the Board and Director January 11, 1996 George N. Hatsopoulos Executive Vice President John N. Hatsopoulos and Chief Financial Officer January 11, 1996 John N. Hatsopoulos Vice President, Finance Paul F. Kelleher (Chief Accounting Officer) January 11, 1996 Paul F. Kelleher John M. Albertine Director January 11, 1996 John M. Albertine 11 PAGE Signature Title Date --------- ----- ---- Peter O. Crisp Director January 11, 1996 Peter O. Crisp Elias P. Gyftopoulos Director January 11, 1996 Elias P. Gyftopoulos Frank Jungers Director January 11, 1996 Frank Jungers Robert A. McCabe Director January 11, 1996 Robert A. McCabe Frank E. Morris Director January 11, 1996 Frank E. Morris Donald E. Noble Director January 11, 1996 Donald E. Noble Director January , 1996 Hutham S. Olayan Roger D. Wellington Director January 11, 1996 Roger D. Wellington 12 PAGE EXHIBIT INDEX Exhibit Sequential Number Description of Exhibit Page No. - ------ ---------------------- -------- 1 Stock Purchase Agreement dated as of December 27, 1995 by and among Thermo Power Corporation, National Westminster Bank Plc, New York Branch, and the Company _____ 5 Opinion of Seth H. Hoogasian, Esq. _____ 23(a) Consent of Arthur Andersen LLP _____ (b) Consent of Seth H. Hoogasian, Esq. (contained in Exhibit 5) 24 Power of Attorney (See Signature Page) 13 EX-5 2 EXHIBIT 5 Thermo Electron Corporation 81 Wyman Street PO Box 9046 Waltham, MA 02254-9046 January 11, 1996 Securities and Exchange Commission Judiciary Plaza 450 Fifth Street, N.W. Washington, D.C. 20549 Re: Registration Statement on Form S-3 ---------------------------------- Ladies and Gentlemen: I am General Counsel to Thermo Electron Corporation, a Delaware corporation (the "Company"), and have acted as counsel in connection with the registration under the Securities Act of 1933, as amended, on Form S-3 (the "Registration Statement"), of 7,312 shares of the Company's Common Stock, par value $1.00 per share (the "Shares"), which may from time to time be sold by a shareholder of the Company. I or a member 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 a member of my staff have also examined and relied upon originals or copies, certified or otherwise authenticated to my satisfaction, of all corporate records, documents, agreements or other instruments of the Company, and have made investigations of law and have discussed with the Company's representatives questions of fact that I or a member of my staff have 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 are validly issued, fully paid and non-assessable. PAGE 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 Matters" in the prospectus constituting a part thereof. Sincerely, Seth H. Hoogasian General Counsel SHH/haf EX-23 3 EXHIBIT 23(a) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS To Thermo Electron Corporation: As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated February 10, 1995 (except with respect to the matters discussed in Note 15 as to which the date is July 20, 1995) included in Thermo Electron Corporation's Form 10-K/A for the year ended December 31, 1994 and to all references to our firm included in this registration statement. ARTHUR ANDERSEN LLP Boston, Massachusetts January 11, 1996 EX-1 4 EXHIBIT 1 STOCK PURCHASE AGREEMENT This Stock Purchase Agreement is made and entered into this 27th day of December, 1995 by and among Thermo Power Corporation, a corporation organized under the laws of the State of Delaware (the "Seller"), and National Westminster Bank Plc, New York Branch, a company organized under the laws of England (the "Buyer"). In consideration of the premises and the mutual covenants, agreements and provisions herein contained, the parties hereto agree as follows: ARTICLE 1 PURCHASE AND SALE OF SHARES Section 1.1. Delivery of Outstanding Shares. At the Closing (as defined in Section 2.1 hereof), and subject to the terms and conditions contained in this Agreement, the Seller shall transfer to the Buyer all right, title and interest in and to 7,312 shares of the common stock, $1.00 par value per share (the "Shares"), of Thermo Electron Corporation ("Thermo Electron"), free and clear of all liens, encumbrances, charges, equities or restrictions. Section 1.2. Purchase Price. In exchange for the Shares, and subject to the terms and conditions contained in this Agreement, the Buyer agrees to pay the Seller the aggregate amount of $361,944.00 (the "Purchase Price") at the Closing. ARTICLE 2 CLOSING Section 2.1. Time and Place of Closing. The closing of the transactions contemplated by this Agreement (the "Closing") shall occur at the offices of Thermo Electron Corporation, at 81 Wyman Street, Waltham, Massachusetts 02254, on December 29, 1995 or on such other date or time as the Seller and the Buyer may agree. Section 2.2. Action to be Taken by the Buyer at the Closing. At the Closing, in addition to the taking of such other action as may be provided in this Agreement, the Buyer shall cause the Purchase Price to be paid by wire transfer to such account or accounts as may be directed by the Seller. Section 2.3. Action to be Taken by the Seller at the Closing. At the Closing, in addition to the taking of such other PAGE action as may be provided in this Agreement, the Seller shall deliver certificates for the Shares to the Buyer, duly endorsed to the Buyer or accompanied by duly executed stock powers. ARTICLE 3 REPRESENTATIONS AND WARRANTIES Section 3.1. Representations and Warranties of the Seller. The Seller represents and warrants to the Buyer that: (a) Ownership of Shares; Authority to Transfer. The Shares are not encumbered and are freely transferable by the Seller. The Seller holds good and marketable title to the Shares to be transferred to the Buyer hereunder and no third party can claim any right thereto or make any claim thereon. The transfer of the Shares to the Buyer pursuant to this Agreement will vest in the Buyer full title to the Shares, free and clear of all liens, claims, equities, options, calls, voting trusts, agreements, commitments and encumbrances whatsoever. (b) Authority. The Seller has full right, power, capacity and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. This Agreement constitutes the valid and binding obligation of the Seller enforceable against the Seller in accordance with the terms hereof. Neither the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated hereby will (i) conflict with or result in a violation, breach, termination or acceleration of, or default under (or would result in a violation, breach, termination, acceleration or default with the giving of notice or passage of time, or both) any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which the Seller is a party or by which the Seller or any of its properties or assets may be bound or affected or (ii) result in the violation of any order, writ, injunction, decree, statute, rule or regulation applicable to the Seller or its properties or assets. No consent or approval by, or notification to or filing with, any court, governmental authority or any third party is required in connection with the execution, delivery and performance of this Agreement by the Seller or the consummation of the transactions contemplated hereby. Section 3.2. Representations and Warranties of the Buyer. (a) Authority. The Buyer represents and warrants to the Seller that the Buyer has full right, power, capacity and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. This Agreement constitutes the valid and binding obligation of the Buyer enforceable against the Buyer in accordance with the terms 2 PAGE hereof. Neither the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated hereby will (i) conflict with or result in a violation, breach, termination or acceleration of, or default under (or would result in a violation, breach, termination, acceleration or default with the giving of notice or passage of time, or both) any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which the Buyer is a party or by which the Buyer or any of its properties or assets may be bound or affected or (ii) result in the violation of any order, writ, injunction, decree, statute, rule or regulation applicable to the Buyer or its properties or assets. No consent or approval by, or notification to or filing with, any court, governmental authority or any third party is required in connection with the execution, delivery and performance of this Agreement by the Buyer or the consummation of the transactions contemplated hereby. (b) Reliance on Publicly Available Information. The Buyer has, in connection with its decision to purchase the Shares, relied solely upon information contained, or incorporated by reference, in documents filed by Thermo Electron with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933, as amended (the "Securities Act") or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the Buyer has not relied in any manner on any other statements of the Seller or of Thermo Electron other than the representations and warranties contained herein. (c) Accredited Investor. The Buyer is an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Securities Act. ARTICLE 4 RESALE RESTRICTIONS; REGISTRATION RIGHTS Section 4.1. Resale Restrictions. The Buyer acknowledges that the Shares have not been registered under the Securities Act and that the Shares, in the hands of the Buyer, will constitute restricted securities. Accordingly, until such time as the Registration Statement (as defined below) has been declared effective by the Commission, the Buyer will not, directly or indirectly, voluntarily offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act and the rules and regulations promulgated thereunder and in compliance with any applicable state securities laws, and a legal opinion satisfactory to Thermo Electron is given to that effect. 3 PAGE Section 4.2. Registration Requirements. (a) As soon as practicable after the Closing, Thermo Electron will file a registration statement (the "Registration Statement") under the Securities Act with respect to the resale of the Shares by the Buyer, and Thermo Electron will use its best efforts to cause the Registration Statement to become effective as soon as practicable. The Buyer undertakes in connection therewith to execute and deliver in a timely manner all such information and materials and take all such action as may be required in order to permit Thermo Electron to comply with all applicable legal requirements and to obtain the acceleration of the effective date of the Registration Statement. (b) Thermo Electron will use its best efforts to prepare and file with the Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective until all the Shares registered thereunder have been sold pursuant thereto or until, by reason of Rule 144(k) of the Commission under the Securities Act or any other rule of similar effect, the Shares are no longer required to be registered for the sale thereof by the Buyer. The Buyer acknowledges that there may be times when Thermo Electron must suspend the use of the prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by Thermo Electron and declared effective by the Commission, or until such time as Thermo Electron has filed an appropriate report with the Commission pursuant to the Exchange Act. The Buyer hereby covenants that it will not sell any Shares pursuant to said prospectus during the period commencing at the time at which Thermo Electron gives the Buyer notice of the suspension of the use of said prospectus and ending at the time Thermo Electron gives the Buyer notice that the Buyer may thereafter effect sales pursuant to said prospectus, and Thermo Electron's indemnification obligations in Section 4.4 will not apply to sales made in violation of this provision. Section 4.3. Registration Procedures. (a) Thermo Electron will furnish to the Buyer with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of prospectuses and preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Buyer may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Buyer. The Buyer hereby represents, warrants and covenants that it will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such prospectuses or preliminary prospectuses. 4 PAGE (b) Thermo Electron will file documents required of Thermo Electron for normal blue sky clearance in a reasonable number of states specified in writing by the Buyer, provided, however, that Thermo Electron shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented. (c) Thermo Electron will bear all expenses in connection with the procedures in paragraphs (a) through (c) of this Section 4.3 and the registration of the Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Buyer. (d) Thermo Electron understands that the Buyer disclaims being an underwriter with respect to the Shares, but the Buyer being deemed an underwriter shall not relieve Thermo Electron of any obligations it has hereunder. Section 4.4. Indemnification. (a) For the purpose of this Section 4.4: (i) the term "Selling Shareholder" shall mean the Buyer and any person controlling the Buyer within the meaning of Section 15 of the Securities Act; (ii) the term "Registration Statement" shall mean any preliminary prospectus, final prospectus, exhibit, supplement or amendment included in or relating to the Registration Statement referred to in Section 4.2; and (iii) the term "untrue statement" shall mean any untrue statement or alleged untrue statement of a material fact in the Registration Statement, or any omission or alleged omission to state in the Registration Statement a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (b) Thermo Electron agrees to indemnify and hold harmless each Selling Shareholder from and against any losses, claims, damages or liabilities to which such Selling Shareholder may become subject (under the Securities Act or otherwise) insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement contained in the Registration Statement on the effective date thereof, or arise out of any failure by Thermo Electron to fulfill any undertaking included in the Registration Statement, and Thermo Electron will reimburse such Selling Shareholder for any legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim, provided, however, that Thermo Electron shall not be liable in any such case to the extent that such loss, claim, damage or liability arises out of, 5 PAGE or is based upon, an untrue statement made in such Registration Statement in reliance upon and in conformity with written information furnished to Thermo Electron by or on behalf of such Selling Shareholder specifically for use in preparation of the Registration Statement, or the failure of such Selling Shareholder to comply with the covenants and agreements contained herein respecting sale of the Shares. (c) The Buyer agrees to indemnify and hold harmless Thermo Electron (and each person, if any, who controls Thermo Electron within the meaning of Section 15 of the Securities Act, each officer of Thermo Electron who signs the Registration Statement and each director of Thermo Electron) from and against any losses, claims, damages or liabilities to which Thermo Electron (or any such officer, director or controlling person) may become subject (under the Securities Act or otherwise), insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon, any failure of the Buyer to comply with the covenants and agreements contained herein, or any untrue statement contained in the Registration Statement on the effective date thereof if such untrue statement was made in reliance upon and in conformity with written information furnished by or on behalf of the Buyer specifically for use in preparation of the Registration Statement, and the Buyer will reimburse Thermo Electron (or such officer, director or controlling person), as the case may be, for any legal or other expense reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim. (d) Promptly after receipt by any indemnified person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 4.4, such indemnified person shall notify the indemnifying person in writing of such claim or of the commencement of such action, and, subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person and such indemnifying person shall have been notified thereof, such indemnifying person shall be entitled to participate therein, and, to the extent it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof, provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the indemnified person, for the same counsel to represent both the indemnified person and such indemnifying person or any affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel at the expense of such indemnifying person; provided, however, that no indemnifying person shall be responsible for the 6 PAGE fees and expenses of more than one separate counsel for all indemnified parties. Section 4.5. Termination of Conditions and Obligations. The conditions precedent imposed by this Article 4 upon the transferability of the Shares shall cease and terminate as to any particular number of the Shares when such Shares shall have been effectively registered under the Securities Act and sold or otherwise disposed of in accordance with the intended method of disposition set forth in the Registration Statement covering such Shares or at such time as an opinion of counsel satisfactory to Thermo Electron shall have been rendered to the effect that such conditions are not necessary in order to comply with the Securities Act. ARTICLE 5 GENERAL Section 5.1. Notices. All notices, requests, demands, consents and other communications which are required or permitted hereunder shall be in writing, and shall be deemed given when actually received or if earlier, one day after deposit with a nationally recognized air courier or express mail, charges prepaid or three days after deposit in the U.S. mail by certified mail, return receipt requested, postage prepaid, addressed as follows: If to the Seller or to Thermo Electron: Thermo Electron Corporation 81 Wyman Street Post Office Box 9046 Waltham, Massachusetts 02254-9046 Attention: Treasurer With a copy to: Thermo Electron Corporation 81 Wyman Street Post Office Box 9046 Waltham, Massachusetts 02254-9046 Attention: General Counsel If to the Buyer: National Westminster Bank Plc, New York Branch 175 Water Street New York, New York 10038-4924 Attention: ________________ With a copy to: 7 PAGE National Westminster Bank Plc, New York Branch 175 Water Street New York, New York 10038-4924 Attention: ________________ or to such other address as any party hereto may designate in writing to the other parties, specifying a change of address for the purpose of this Agreement. Section 5.2. Survival and Materiality of Representations. Each of the representations, warranties and agreements made by the parties hereto shall be deemed material and shall survive the Closing and the consummation of the transaction contemplated hereby. Section 5.3. Entire Agreement. This Agreement supersedes any and all oral or written agreements or understandings heretofore made relating to the subject matter hereof and constitutes the entire agreement of the parties relating to the subject matter hereof. Section 5.4. Parties in Interest. All agreements, representations and warranties contained in this Agreement made by or on behalf of any of the parties hereto shall bind and inure to the benefit of the parties hereto, and their respective successors, assigns, heirs, executors, administrators and personal representatives, whether so expressed or not. Section 5.5. Headings. The headings in this Agreement are inserted for convenience of reference only and shall not be a part of or control or affect the meaning hereof. Section 5.6. Severability. If any provision of this Agreement shall be declared void or unenforceable by any judicial or administrative authority, the validity of any other provision shall not be affected thereby. Section 5.7. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Section 5.8. Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts applicable to agreements made and to be performed wholly within such jurisdiction, without regard to the conflicts of laws provisions thereof. 8 PAGE IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above. THERMO POWER CORPORATION NATIONAL WESTMINSTER BANK PLC, NEW YORK BRANCH By: /s/ Jonathan W. Painter By: /s/ Anne Kavanagh Title: Treasurer Title: President For purposes of Article 4 only: THERMO ELECTRON CORPORATION By: /s/ Jonathan W. Painter Title: Treasurer AA960050053 9 -----END PRIVACY-ENHANCED MESSAGE-----