As filed with the Securities and Exchange Commission on June 9, 1999.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
Registration Statement
Under
The Securities Act of 1933
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THERMOQUEST CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 77-0407461
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2215 Grand Avenue Parkway
Austin, Texas 78728-3812
(Address of Principal Executive Offices) (Zip Code)
THERMOQUEST CORPORATION EMPLOYEES EQUITY INCENTIVE PLAN
(Full Title of the Plan)
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
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CALCULATION OF REGISTRATION FEE
TITLE OF PROPOSED
SECURITIES AMOUNT PROPOSED MAXIMUM AMOUNT OF
TO BE TO BE MAXIMUM AGGREGATE REGISTRATION
REGISTERED REGISTERED OFFERING OFFERING PRICE FEE
PRICE PER
SHARE
Common Stock,
$.01 par value 500,000 $11.65625 $5,828,125(2) $1,621
per share shares (1) (2)
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
Company's Common Stock issuable in connection with adjustments under the
ThermoQuest Corporation Employees Equity Incentive Plan to reflect certain
changes in the Company's capital structure, including stock dividends or stock
splits.
(1) Represents additional shares available for grants under the ThermoQuest
Corporation Employees Equity Incentive Plan as of June 9, 1999.
(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 Company based its calculation of the proposed maximum
aggregate offering price on (1) the registration herein of 500,000 shares
of Common Stock and (2) the average of the high and low sales prices,
$11.6875 and $11.625, respectively, of the Company's Common Stock on the
American Stock Exchange on June 8, 1999 as reported in the consolidated
reporting system.
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EXPLANATORY NOTE
This Registration Statement is being 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 a registration statement relating to the same
employee benefit plan is effective.
This Registration Statement relates to 500,000 shares of the Common Stock,
$.01 par value per share, of ThermoQuest Corporation (the "Company" or the
"Registrant"), that are reserved for issuance under the ThermoQuest Corporation
Employees Equity Incentive Plan (the "Plan"). On November 24, 1998, the Company
filed an initial registration statement on Form S-8 (Reg. No. 333-67853) to
register 1,000,000 shares of Common Stock reserved for issuance under the Plan
(along with other plans of the Company). The addition of this Registration
Statement brings the total number of shares registered for issuance under the
Plan to 1,500,000. The contents of the previously filed registration statement
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 statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company 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 accordingly files reports, proxy statements
and other information with the Securities and Exchange 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;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended April 3, 1999;
(c) 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 from time to time.
All reports or proxy statements filed by the Company under Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and before the filing of a post-effective amendment stating that all
securities covered by this Registration Statement 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.
<PAGE>
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 Thermo Electron Corporation ("Thermo Electron"), the
majority stockholder of Thermo Instrument Systems Inc. ("Thermo Instrument"),
which in turn is the majority stockholder of the Company, is an officer of the
Company, Thermo Instrument and Thermo Electron, and owns or has the right to
acquire 6,000 shares of Common Stock, 18,815 shares of the common stock, $.10
par value per share, of Thermo Instrument and 348,828 shares of the common
stock, $1.00 par value per share, of Thermo Electron.
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 its directors and
officers against certain liabilities which might be incurred in connection with
the performance of their duties.
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;
<PAGE>
(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.
<PAGE>
(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 Securities 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
Securities Act and will be governed by the final adjudication of such issue.
<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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Franklin, Commonwealth of Massachusetts, on this 9th
day of June, 1999.
THERMOQUEST CORPORATION
By: /s/ Richard W.K. Chapman
Richard W.K. Chapman
President and Chief Executive
Officer
POWER OF ATTORNEY
Each of the undersigned Directors and Officers of ThermoQuest 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 and Chief Executive
/s/ Richard W.K. Chapman Officer June 9, 1999
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Richard W.K. Chapman
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/s/ Theo Melas-Kyriazi
- ------------------------- Chief Financial Officer June 9, 1999
Theo Melas-Kyriazi
/s/ Paul F. Kelleher Chief Accounting Officer June 9, 1999
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Paul F. Kelleher
/s/ George N. Hatsopoulos Director June 9, 1999
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George N. Hatsopoulos
/s/ Frank Jungers Director June 9, 1999
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Frank Jungers
Chairman of the Board June 9, 1999
/s/ Earl R. Lewis and Director
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Earl R. Lewis
/s/ Anthony J. Pellegrino Director June 9, 1999
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Anthony J. Pellegrino
/s/ Michael E. Porter Director June 9, 1999
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Michael E. Porter
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
5.1 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 5.1).
24 Power of Attorney (see signature pages to this Registration
Statement).
<PAGE>
EXHIBIT 5.1
ThermoQuest Corporation
2215 Grand Avenue Parkway
Austin, Texas 78728-3812
June 9, 1999
ThermoQuest Corporation
2215 Grand Avenue Parkway
Austin, Texas 78728-3812
Re: Registration Statement on Form S-8
Relating to 500,000 Shares of the Common Stock,
$.01 par value, of ThermoQuest Corporation
Dear Sirs:
I am General Counsel to ThermoQuest 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 500,000 shares of the Company's Common Stock, $.01 par value per
share (the "Shares") subject to the ThermoQuest Corporation Employees Equity
Incentive Plan (the "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 duly organized, 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.
<PAGE>
3. The Shares, when issued and sold in accordance with the provisions of
the Plan, will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Seth H. Hoogasian
Seth H. Hoogasian
General Counsel
<PAGE>
Exhibit 23.1
Consent of Independent Public Accountants
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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, included or incorporated by reference in ThermoQuest
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
June 9, 1999
