-----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, Cah8jhMfToXKl33hyLHRxrizo3axN+prCfF+EJXPQpWOqdqIQ/NKxy2mkfwFsImX 95qS/x6zKzizCUbYVCvOlw== 0000097745-99-000037.txt : 19991115 0000097745-99-000037.hdr.sgml : 19991115 ACCESSION NUMBER: 0000097745-99-000037 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19991112 EFFECTIVENESS DATE: 19991112 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: 0102 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-90761 FILM NUMBER: 99747233 BUSINESS ADDRESS: STREET 1: 81 WYMAN ST STREET 2: P O BOX 9046 CITY: WALTHAM STATE: MA ZIP: 02454 BUSINESS PHONE: 7816221000 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on November 12, 1999. Registration No. 333- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- FORM S-8 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 Number) 81 Wyman Street Waltham, Massachusetts 02454-9046 (Address of Principal Executive Offices) (Zip Code) THERMO ELECTRON CORPORATION DIRECTORS STOCK OPTION PLAN THERMO ELECTRON CORPORATION INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN THERMO ELECTRON CORPORATION EQUITY INCENTIVE PLAN THERMO ELECTRON CORPORATION EMPLOYEES EQUITY INCENTIVE PLAN THERMO ELECTRON CORPORATION DIRECTORS DEFERRED COMPENSATION PLAN (Full Titles of the Plans) Sandra L. Lambert, Secretary Thermo Electron Corporation 81 Wyman Street P. O. Box 9046 Waltham, Massachusetts 02454-9046 (Name and Address of Agent for Service) (781) 622-1000 (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 02454-9046 --------------- CALCULATION OF REGISTRATION FEE Title of Proposed securities Amount Proposed Maximum Amount of to be to be Maximum Aggregate Registration registered registered Offering Offering Fee Price Per Price Share Common Stock, $1.00 par value 9,375,129 $13.875(2) $130,079,915(2) $36,163 per share shares (1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate number of shares of the Registrant's Common Stock as may be issuable in connection with adjustments under the employee benefit plans described herein to reflect certain changes in the Registrant's capital structure, including stock dividends or stock splits. (1) The shares registered hereunder are divided among the various plans as set forth in the following table: Name of Plan No. of Shares Thermo Electron Corporation Directors Stock 225,000 Option Plan Thermo Electron Corporation Incentive and 450,129 Nonqualified Stock Option Plan Thermo Electron Corporation Equity Incentive Plan 5,000,000 Thermo Electron Corporation Directors Deferred 700,000 Compensation Plan Thermo Electron Corporation Employees Equity 3,000,000 Incentive Plan (2) Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(h) under the Securities Act of 1933. The calculation of the proposed maximum aggregate offering price has been based upon (1) the registration hereunder of an aggregate of 9,375,129 shares and (2) the average of the high and low sales prices, $14.0625 and $13.6875, respectively, of the Registrant's Common Stock on the New York Stock Exchange on November 9, 1999 as reported in the consolidated transaction reporting system. EXPLANATORY NOTE With respect to the Thermo Electron Corporation Incentive and Nonqualified Stock Option Plan (the "TMO Incentive Plan"), the Thermo Electron Corporation Equity Incentive Plan (the "TMO Equity Plan") and the Thermo Electron Corporation Directors Stock Option Plan (the "TMO Directors Plan"), this Registration Statement is filed pursuant to General Instruction E of Form S-8 in order to register additional securities of the same class as other securities for which registration statements relating to such employee benefit plans are effective. On November 7, 1980, August 15, 1984 and September 24, 1986, the Company filed registration statements on Form S-8 (Reg. Nos. 2-69811, 2-92780 and 33-8993, respectively) to register an aggregate of 2,588,169 shares of Common Stock reserved for issuance under the TMO Incentive Plan. Giving effect to increases under the TMO Incentive Plan as a result of stock splits and/or stock dividends, the addition of this Registration Statement brings the total number of shares registered for issuance under the TMO Incentive Plan to 13,552,731. In addition, on November 16, 1990 and July 6, 1994, the Company filed registration statements on Form S-8 (Reg. Nos. 33-37867 and 33-54453, respectively) to register an aggregate of 3,800,000 shares of Common Stock reserved for issuance under the TMO Equity Plan. Giving effect to increases under the TMO Equity Plan as a result of stock splits and/or stock dividends, the addition of this Registration Statement brings the total number of shares registered for issuance under the TMO Equity Plan to 15,575,000. In addition, on August 4, 1995, the Company filed a registration statement on Form S-8 (Reg. No. 33-61561) to register 300,000 shares of Common Stock reserved for issuance under the TMO Directors Plan. Giving effect to an increase under the TMO Directors Plan as a result of a stock dividend, the addition of this Registration Statement brings the total number of shares registered for issuance under the TMO Directors Plan to 675,000. The contents of the previously filed registration statements relating to the TMO Equity Plan, the TMO Incentive Plan and the TMO Directors Plan are incorporated herein by reference except for the items that are set forth below. Pursuant to Instruction E, this Registration Statement contains such information required by Form S-8 that is not otherwise included in the previous registration statements. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The information required by Part I is included in documents sent or given to the respective participants in the plans listed on the cover page of this Registration Statement pursuant to Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act"). As used in this Registration Statement, the terms "Registrant" or "Company" refer to Thermo Electron Corporation. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The Registrant is subject to the informational and reporting requirements of Sections 13(a), 13(c), 14 and 15(d) 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"). The following documents, which are on file with the Commission, are incorporated in this Registration Statement by reference: (a) The Company's Annual Report on Form 10-K for the fiscal year ended January 2, 1999, as amended. (b) The Company's Current Report on Form 8-K filed with the Commission on January 8, 1999. (c) The Company's Current Report on Form 8-K filed with the Commission on March 9, 1999. (d) The Company's Current Report on Form 8-K filed with the Commission on March 15, 1999. (e) The Company's Quarterly Report on Form 10-Q for the quarter ended April 3, 1999. (f) The Company's Current Report on Form 8-K filed with the Commission on May 25, 1999. (g) The Company's Quarterly Report on Form 10-Q for the quarter ended July 3, 1999. (h) The Company's Quarterly Report on Form 10-Q for the quarter ended October 2, 1999. (i) 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 such description may be amended from time to time. (j) The description of the Company's Preferred Stock Purchase Rights which is contained in the Company's Registration Statement on Form 8-A filed under the Exchange Act, as such description may be amended from time to time. All reports or proxy statements filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered herein have been sold, or that deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the respective dates of filing of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. The validity of the Common Stock offered hereby has been passed upon by Seth H. Hoogasian, Esq., General Counsel of the Company. Mr. Hoogasian is a full-time employee of the Company, is an officer of the Company, and owns or has the right to acquire 348,828 shares of Common Stock and 164,328 shares of the common stock of the Company's subsidiaries. Item 6. Indemnification of Directors and Officers. The Delaware General Corporation Law and the Company's 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 has an insurance policy which insures the directors and officers of the Company and its subsidiaries against certain liabilities which might be incurred in connection with the performance of their duties. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. The Exhibit Index immediately preceding the exhibits is attached hereto and incorporated herein by reference. Item 9. 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. 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 information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission 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 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. 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-8 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 12th day of November, 1999. THERMO ELECTRON CORPORATION By: /s/ Richard F. Syron ----------------------------- Richard F. Syron Chief Executive Officer POWER OF ATTORNEY Each of the undersigned Directors and Officers of Thermo Electron Corporation hereby appoints Theo Melas-Kyriazi, Paul F. Kelleher, Kenneth J. Apicerno, Seth H. Hoogasian and Sandra L. Lambert, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated: Signature Title Date President, Chief Executive /s/ Richard F. Syron Officer and Director November 12, 1999 - ----------------------------- Richard F. Syron /s/ Theo Melas-Kyriazi Chief Financial Officer November 12, 1999 - ----------------------------- Theo Melas-Kyriazi /s/ Paul F. Kelleher Chief Accounting Officer November 12, 1999 - ----------------------------- Paul F. Kelleher /s/ George N. Hatsopoulos Chairman of the Board November 12, 1999 - ----------------------------- George N. Hatsopoulos /s/ John M. Albertine Director November 12, 1999 - ----------------------------- John M. Albertine /s/ Samuel W. Bodman Director November 12, 1999 - ----------------------------- Samuel W. Bodman /s/ Peter O. Crisp Director November 12, 1999 - ----------------------------- Peter O. Crisp /s/ Elias P. Gyftopoulos Director November 12, 1999 - ----------------------------- Elias P. Gyftopoulos /s/ John N. Hatsopoulos Director November 12, 1999 - ----------------------------- John N. Hatsopoulos /s/ Frank Jungers Director November 12, 1999 - ----------------------------- Frank Jungers /s/ Robert A. McCabe Director November 12, 1999 - ----------------------------- Robert A. McCabe /s/ Hutham S. Olayan Director November 12, 1999 - ----------------------------- Hutham S. Olayan /s/ Robert W. O'Leary Director November 12, 1999 - ----------------------------- Robert W. O'Leary /s/ Roger D. Wellington Director November 12, 1999 - ----------------------------- Roger D. Wellington EXHIBIT INDEX Exhibit Number Description 5 Opinion of Seth H. Hoogasian, Esq. 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Seth H. Hoogasian, Esq. (contained in his opinion filed as Exhibit 5). 24 Power of Attorney (see signature pages to this Registration Statement). EXHIBIT 5 Thermo Electron Corporation 81 Wyman Street Waltham, Massachusetts 02454-9046 November 12, 1999 Thermo Electron Corporation 81 Wyman Street Waltham, Massachusetts 02454-9046 Re: Registration Statement on Form S-8 Relating to 9,375,129 Shares of the Common Stock, $1.00 par value, of Thermo Electron Corporation Dear Sirs: 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-8 (the "Registration Statement"), of 9,375,129 shares of the Company's Common Stock, $1.00 par value per share (the "Shares") subject to the following employee benefit plans (each, a "Plan"): Thermo Electron Corporation Directors Stock Option Plan, Thermo Electron Corporation Incentive and Nonqualified Stock Option Plan, Thermo Electron Corporation Equity Incentive Plan, Thermo Electron Corporation Employees Equity Incentive Plan, and Thermo Electron Corporation Directors Deferred Compensation Plan. I or a member of my legal 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 legal 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 all investigations of law and have discussed with the Company's representatives all questions of fact that I have deemed necessary or appropriate. Based upon and subject to the foregoing, I am of the opinion that: 1. The Company is a corporation validly existing and in corporate good standing under the laws of the State of Delaware. 2. The issuance and sale of the Shares as contemplated in the Registration Statement have been duly authorized by the Company. 3. The Shares, when issued and sold in accordance with the provisions of the applicable Plan, will be validly issued, fully paid and nonassessable. I hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. Very truly yours, /s/ Seth H. Hoogasian ------------------------ Seth H. Hoogasian General Counsel Exhibit 23.1 Consent of Independent Public Accountants ----------------------------------------- As independent public accountants, we hereby consent to the incorporation by reference in this registration statement on Form S-8 of our report dated February 16, 1999 (except with respect to the matters discussed in Note 19, as to which the date is March 1, 1999), included in Thermo Electron Corporation's Annual Report on Form 10-K for the year ended January 2, 1999, and to all references to our Firm included in this registration statement. Arthur Andersen LLP Boston, Massachusetts November 8, 1999 -----END PRIVACY-ENHANCED MESSAGE-----