As filed with the Securities and Exchange Commission on
April 10, 1998 Registration No. 333-16017
--------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
_______________________________
POST-EFFECTIVE AMENDMENT NO. 2
ON FORM S-3 TO FORM S-1
Registration Statement
Under the Securities Act of 1933
________________________________
THERMO OPTEK CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 04-3283973
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
_______________
8 East Forge Parkway
Franklin, Massachusetts 02038
(508) 553-1700
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
_______________
Sandra L. Lambert, Secretary
Thermo Optek Corporation
c/o Thermo Electron Corporation
81 Wyman Street
P.O. Box 9046
Waltham, Massachusetts 02254-9046
(781) 622-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_______________
Copy to:
Seth H. Hoogasian, Esq.
General Counsel
Thermo Optek Corporation
c/o Thermo Electron Corporation
81 Wyman Street
P.O. Box 9046
Waltham, Massachusetts 02254-9046
(781) 622-1000
_______________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration
statement.
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If the only securities being requested 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]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act of
1933, check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act of 1933, check the following box
and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
[ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, check the following box. [ ]
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SUBJECT TO COMPLETION, DATED APRIL 10, 1998
PROSPECTUS
6,481,481 Shares
THERMO OPTEK CORPORATION
Common Stock
This Prospectus relates to the resale of 6,481,481
shares (the "Shares") of Common Stock, par value $.01 per share
(the "Common Stock"), of Thermo Optek Corporation ("Thermo Optek"
or the "Company") issuable upon conversion of $96,250,000
principal amount of the Company's outstanding 5% Convertible
Subordinated Debentures due 2000 (the "Debentures"). The
Debentures are convertible, at the option of the holder (a
"Selling Shareholder"), at a conversion price of $13.9446 per
share, subject to adjustment for certain events. The Shares may
be offered from time to time in transactions on the American
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. Such
transactions may be effected by the sale of Shares to or through
broker-dealers, and such broker-dealers may receive compensation
in the form of discounts, concessions or commissions from the
sellers 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
sellers of the Shares 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 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 Common Stock offered hereby involves a high degree of risk.
See "RISK FACTORS" at page 5.
_______________
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.
----------------------------
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None of the proceeds from the sale of the Shares by the
Selling Shareholders 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 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 under the
Securities Act as underwriter or otherwise.
The Company is a majority-owned subsidiary of Thermo
Instrument Systems Inc. ("Thermo Instrument"), which is a
majority-owned subsidiary of Thermo Electron Corporation ("Thermo
Electron"). The Common Stock is traded on the American Stock
Exchange under the symbol "TOC." On April 9, 1998 the reported
closing price of the Common Stock on the American Stock Exchange
was $16.625 per share.
The date of this Prospectus is April __, 1998.
_________________
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. Unless otherwise noted, 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.
_____________
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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 Commission also maintains a Web site that
contains reports, proxy and information statements and other
information regarding registrants that file electronically with
the Commission, including the Company; the address of such Web
site is http://www.sec.gov. The Common Stock of the Company is
listed on the American 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 American Stock
Exchange, 86 Trinity Place, 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 Optek Corporation, c/o
Thermo Electron Corporation, 81 Wyman Street, P. O. Box 9046,
Waltham, Massachusetts 02254-9046 (telephone: (781) 622-1000).
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THE COMPANY
The Company is a worldwide leader in analytical
instrumentation based upon energy and light measurements, and
surface-analysis characterization and preparation. The Company's
instruments are used in the elemental and molecular analysis of a
wide variety of solids, liquids, and gases, as well as in testing
and fabricating advanced materials.. Serving multibillion-dollar
markets, the Company provides industry, government, and academia
with complete solutions to specific analytical problems, moving
sophisticated analytical technology outside the lab. The
Company's instruments are used in virtually every industry for
research and development, manufacturing, and quality control.
The Company was incorporated in Delaware in August 1995 as a
subsidiary of Thermo Instrument Systems Inc. ("Thermo
Instrument"). Thermo Instrument is a publicly traded
majority-owned subsidiary of Thermo Electron Corporation ("Thermo
Electron").
Unless the context otherwise requires, references in this
Prospectus to the Company refer to Thermo Optek Corporation and
its subsidiaries and their predecessors. As of January 3, 1998,
Thermo Instrument owned 91% of the Company's outstanding Common
Stock. The Company's principal executive offices are located at
8 East Forge Parkway, Franklin, Massachusetts 02038, and its
telephone number is (508) 553-1700.
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RISK FACTORS
In connection with the "safe harbor" provisions of the
Private Securities Litigation Reform Act of 1995, the Company
wishes to caution readers that the following important factors,
among others, in some cases have affected, and in the future
could affect, the Company's actual results and could cause its
actual results in 1998 and beyond to differ materially from those
expressed in any forward-looking statements made by, or on behalf
of, the Company.
Risks Associated with Technological Change, Obsolescence, and
-------------------------------------------------------------
the Development and Acceptance of New Products. The market for
----------------------------------------------
the Company's products is characterized by rapid and significant
technological change and evolving industry standards. New
product introductions responsive to these factors require
significant planning, design, development, and testing at the
technological, product, and manufacturing process levels, and may
render existing products and technologies uncompetitive or
obsolete. There can be no assurance that the Company's products
will not become uncompetitive or obsolete. In addition, industry
acceptance of new technologies developed by the Company may be
slow to develop due to, among other things, existing regulations
written specifically for older technologies and general
unfamiliarity of users with new technologies.
Risks Associated with Acquisition Strategy; No Assurance of a
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Successful Acquisition Strategy. The Company's growth strategy
-------------------------------
is to supplement its internal growth with the acquisition of
businesses and technologies that complement or augment the
Company's existing product lines. Certain businesses the Company
has acquired in the past have had low levels of productivity, and
businesses that the Company may seek to acquire in the future may
also be marginally profitable or unprofitable. In order for any
acquired businesses to achieve the level of profitability desired
by the Company, the Company must successfully reduce expenses and
improve market penetration. No assurance can be given that the
Company will be successful in this regard. In addition,
promising acquisitions are difficult to identify and complete for
a number of reasons, including competition among prospective
buyers and the need for regulatory approvals, including antitrust
approvals. There can be no assurance that the Company will be
able to complete pending or future acquisitions. In order to
finance any such acquisitions, it may be necessary for the
Company to raise additional funds either through public or
private financings. Any equity or debt financing, if available
at all, may be on terms which are not favorable to the Company.
Possible Adverse Effect from Consolidation in the
-------------------------------------------------
Environmental Market and Changes in Environmental Regulations.
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One of the largest markets for the Company's products is
environmental analysis. In recent years, there has been a
contraction in the market for analytical instruments used for
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environmental analysis. This contraction has caused
consolidation in the businesses serving this market. Further
consolidation or contraction may have an adverse impact in
certain of the Company's businesses. In addition, most air,
water, and soil analysis is conducted to comply with federal,
state, local, and foreign environmental regulations. These
regulations are frequently specific as to the type of technology
required for a particular analysis and the level of detection
required for that analysis. The Company develops, configures,
and markets its products to meet customer needs created by
existing and anticipated environmental regulations. These
regulations may be amended or eliminated in response to new
scientific evidence or political or economic considerations. Any
significant change in environmental regulations could result in a
reduction in demand for the Company's products.
Possible Adverse Impact of Significant International
----------------------------------------------------
Operations. Sales outside the United States accounted for
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approximately 63% of the Company's revenues in 1997, and the
Company expects that international sales will continue to account
for a significant portion of the Company's revenues in the
future. Sales to customers in foreign countries are subject to a
number of risks, including the following: agreements may be
difficult to enforce and receivables difficult to collect through
a foreign country's legal system; foreign customers may have
longer payment cycles; foreign countries could impose withholding
taxes or otherwise tax the Company's foreign income, impose
tariffs, or adopt other restrictions on foreign trade;
fluctuations in exchange rates may affect product demand and
adversely affect the profitability in U.S. dollars of products
and services provided by the Company in foreign markets where
payment for the Company's products and services is made in the
local currency; U.S. or foreign export licenses may be difficult
to obtain; and the protection of intellectual property in foreign
countries may be more difficult to enforce. There can be no
assurance that any of these factors will not have a material
adverse effect on the Company's business and results of
operations.
Competition. The Company encounters and expects to continue
-----------
to encounter intense competition in the sale of its products.
The Company believes that the principal competitive factors
affecting the market for its products include product
performance, price, reliability, and customer service. The
Company's competitors include large multinational corporations
and their operating units, including The Perkin-Elmer Corporation
and Varian Associates, Inc. These companies and certain of the
Company's other competitors have substantially greater financial,
marketing, and other resources than those of the Company. As a
result, they may be able to adapt more quickly to new or emerging
technologies and changes in customer requirements, or to devote
greater resources to the promotion and sale of their products
than the Company. In addition, competition could increase if new
companies enter the market or if existing competitors expand
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their product lines or intensify efforts within existing products
lines. There can be no assurance that the Company's current
products, products under development, or ability to discover new
technologies will be sufficient to enable it to compete
effectively with its competitors.
Risks Associated with Protection, Defense, and Use of
-----------------------------------------------------
Intellectual Property. The Company holds patents relating to
---------------------
various aspects of its products, and believes that proprietary
technical know-how is critical to many of its products.
Proprietary rights relating to the Company's products are
protected from unauthorized use by third parties only to the
extent that they are covered by valid and enforceable patents or
are maintained in confidence as trade secrets. There can be no
assurance that patents will issue from any pending or future
patent applications owned by or license to the Company or that
the claims allowed under any issued patents will be sufficiently
broad to protect the Company's technology and, in the absence of
patent protection, the Company may be vulnerable to competitors
who attempt to copy the Company's products or gain access to its
trade secrets and know-how. Proceedings initiated by the Company
to protect its proprietary rights could result in substantial
costs to the Company. There can be no assurance that competitors
of the Company will not initiate litigation to challenge the
validity of the Company's patents, or that they will not use
their resources to design comparable products that do not
infringe the Company's patents. There also may be pending or
issued patents held by parties not affiliated with the Company
that relate to the Company's products or technologies. The
Company may need to acquire licenses to, or contest the validity
of, any such patents. There can be no assurance that any license
required under any such patent would be made available on
acceptable terms or that the Company would prevail in any such
contest. The Company could incur substantial costs in defending
itself in suits brought against it or in suits in which the
Company may assert its patent rights against others. If the
outcome of any such litigation is unfavorable to the Company, the
Company's business and results of operations could be materially
adversely affected. In addition, the Company relies on trade
secrets and proprietary know-how which it seeks to protect, in
part, by confidentiality agreements with its collaborators,
employees, and consultants. There can be no assurance that these
agreements will not be breached, that the Company would have
adequate remedies for any breach or that the Company's trade
secrets will not otherwise become known or be independently
developed by competitors.
SELLING SHAREHOLDERS
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The Selling Shareholders currently hold Debentures
convertible into Shares which are the subject of this Prospectus.
It is unknown if, when or in what amounts a Selling Shareholder
may offer Shares for sale and there can be no assurance that the
Selling Shareholders will sell any or all of the Shares offered
hereby.
Because the Selling Shareholders may offer all or some of the
Shares pursuant to the offering contemplated by this Prospectus,
and because there are currently no agreements, arrangements or
understandings with respect to the sale of any of the Shares that
will be held by the Selling Shareholders after the completion of
this offering, no estimate can be given as to the amount of the
Shares that will be held by the Selling Shareholders after
completion of this offering. To the best of the Company's
knowledge, none of the Selling Shareholders, other than Mr.
Robert McCabe, currently owns any shares of Common Stock.
Other than as a result of the ownership of the Debentures, to
the best of the Company's knowledge, none of the Selling
Shareholders other than Mr. Robert McCabe, a Director of the
Company, had any material relationship with the Company within
the three year period ending on the date of this Prospectus.
The names of the Selling Shareholders, the principal amount
of Debentures held by each of them, and the number of Shares into
which such Debentures are convertible are set forth below.
Number of
Shares into
Principal which
Amount of Debentures are
Selling Shareholder Debentures Convertible (1)
------------------- ---------- ---------------
6,734
ABN Amro Bank ................ $100,000
Bank Julius Baer & Co., Ltd. . 1,410,000 94,949
Bank Sarasin et Cie .......... 500,000 33,670
Bank Von Ernst and Cie AG .... 75,000 5,050
BHF Securities Corporation ... 300,000 20,202
Blondell Establishment ....... 200,000 13,468
Bober & Co. .................. 9,496,000 639,461
Boyd & Co. ................... 1,600,000 107,744
Brown Brothers Harriman & Co. 110,000 7,407
Cantrade Private Bank ........ 100,000 6,734
Cie de Gestion et de Banque
Gonet SA ..................... 125,000 8,417
Clariden Bank Zurich ......... 75,000 5,050
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Credit Suisse Zurich ......... 75,000 5,050
850,000 57,239
Cudd & Co. ...................
Darier Hentsch et Cie ........ 9,530,000 641,750
Egger & Co. .................. 1,750,000 117,845
Forbank & Co. ................ 4,575,000 308,080
Gerlach & Co. ................ 2,340,000 157,575
Greig Middleton Ltd. ......... 5,000 336
Gorman & Co. ................. 50,000 3,367
Hare & Co. ...................12,938,000 871,245
J. Romeo & Co. ............... 745,000 50,168
Kink & Co. ................... 100,000 6,734
Lehman Brothers Inc. ......... 2,284,000 153,804
LGT Bank in Lichenstein AG ... 50,000 3,367
Loco & Co. ................... 1,025,000 69,023
Petronome Corp. .............. 250,000 16,835
Prudential Securities 100,000 6,734
Incorporated .................
Swiss Volksbank Switzerland .. 40,000 2,693
TFinn & Co. .................. 920,000 61,952
Verwaltungs und Privat Bank AG 100,000 6,734
Zvercher Kantonalbank
Switzerland .................. 500,000 33,670
Akkad & Co. .................. 5,000,000 336,700
Alpine & Co. ................. 250,000 16,385
Artistic Investments Ltd. .... 90,000 6,060
Auer & Co. ................... 800,000 53,872
Banque San Paolo ............. 500,000 33,670
Biltrust Ltd. ................ 405,000 27,272
Booth & Co. .................. 530,000 35,690
Bost & Co. ................... 6,460,000 435,016
Bridgerope & Co. ............. 1,585,000 106,734
C.O. Nominees 150,000 10,101
Limited/Chelmsford Essex .....
Catamaran & Co. .............. 1,065,000 71,717
Comar Inc. ................... 200,000 13,468
DeckAnchor & Co. ............. 2,000,000 134,680
Fuelship & Co. ............... 430,000 28,956
Glyns Nominees Limited ....... 350,000 23,569
Robert A. McCabe ............. 100,000 6,734
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Merrill Lynch Pierce Fenner &
Smith Incorporated ........... 250,000 16,835
3,852,000 259,393
Muico & Co. ..................
Northman & Co. ............... 580,000 39,057
Pitt & Co. ................... 350,000 23,569
Republic New York Securities
Corp. ........................ 250,000 16,835
Salkeld & Co. ................ 2,000,000 134,680
Tamarack & Co. ............... 2,430,000 163,636
Comdisco Foundation .......... 100,000 6,734
Hal Kirshner ................. 200,000 13,468
William Pontikees 1985 Family
Trust ........................ 100,000 6,734
(1) Share amounts set forth in the table do not include
fractional amounts which will be cashed out at the time
of any conversion of Debentures into Shares.
SALE OF SHARES
The Company will not receive any of the proceeds from this
offering. The Shares offered hereby may be sold from time to
time by or for the accounts of any of the Selling Shareholders or
by their pledgees, donees, distributees or transferees or other
successors in interest to the Selling Shareholders. The Shares
may be sold hereunder directly to purchasers by the Selling
Shareholders in negotiated transactions; by or through brokers or
dealers in ordinary brokerage transactions or transactions in
which the broker solicits purchases or block trades in which the
broker or dealer will attempt to sell the Shares as agent but may
position and resell a portion of the block as principal;
transactions in which a broker or dealer purchases as principal
for resale for its own account; or through underwriters or
agents. The Shares may be sold at a fixed offering price, which
may be changed, at the prevailing market price at the time of
sale, at prices related to such prevailing market price or at
negotiated prices. Any brokers, dealers, underwriters or agents
may arrange with others to participate in any such transaction
and may receive compensation in the form of discounts,
commissions or concessions from the Selling Shareholders and/or
the purchasers of the Shares. Each Selling Shareholder will be
responsible for payment of any and all commissions to brokers.
The aggregate proceeds to any Selling Shareholder from the
sale of the Shares offered by a Selling Shareholder hereby will
be the purchase price of such Shares less any broker's
commissions.
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In order to comply with the securities laws of certain
states, if applicable, the Shares will be sold in such
jurisdiction only through registered or licensed brokers or
dealers. In addition, in certain states the Shares may not be
sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
Any Selling Shareholder and any broker-dealer, agent or
underwriter that participates with the Selling Shareholder in the
distribution of the Shares may be deemed to be "underwriters"
within the meaning of the Securities Act, in which event any
commissions received by such broker-dealers, agents or
underwriters and any profit on the resale of the Shares purchased
by them may be deemed to be underwriting commissions or discounts
under the Securities Act.
The Company has been advised that the Selling Shareholders
may sell Shares from time to time in transactions on the American
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
Shareholders 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 Shareholders 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 Shareholders 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 Shareholders against certain
liabilities, including liabilities under the Securities Act as
underwriter or otherwise.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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The following documents previously filed with the Commission
by the Company (File No. 1-11757) are hereby incorporated in this
Prospectus by reference:
(a) Annual Report on Form 10-K for the fiscal year ended
January 3, 1998; and
(b) 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.
All documents 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 into this Prospectus and to be a part hereof from the
respective dates of filing of such documents. Any statement
contained herein or in a document all or any portion of which is
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 subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes
such earlier statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to any person to
whom this Prospectus is delivered, upon the written or oral
request of such person, a copy of any or all of the foregoing
documents incorporated herein by reference (other than certain
exhibits to such documents). Requests for such copies should be
directed to Sandra L. Lambert, Secretary, Thermo Optek
Corporation, c/o Thermo Electron Corporation, 81 Wyman Street,
P.O. Box 9046, Waltham, Massachusetts 02254-9046 (telephone:
(781) 622-1000).
LEGAL MATTERS
Certain legal matters relating to the Shares offered hereby
have been passed upon for the Company by Seth H. Hoogasian, Esq.,
General Counsel of Thermo Electron, Thermo Instrument and the
Company. As of the date of such opinion, Mr. Hoogasian owned or
had the right to acquire 6,000 shares of Common Stock, 20,921
shares of common stock of Thermo Instrument and 118,177 shares of
common stock of Thermo Electron.
EXPERTS
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The financial statements of the Company included in
this Prospectus and the financial statement schedules included in
the Registration Statement of which this Prospectus forms a part have
been audited by Arthur Andersen LLP, independent public
accountants, to the extent and for the periods as indicated in
their report with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in giving
said reports.
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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 23,324.00
Commission ...................................
Legal fees and expenses ...................... 10,000.00
Accounting fees and expenses ................. 10,000.00
Miscellaneous ................................ 6,676.00
Total ................................... 50,000.00
Item 15. 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.
Thermo Electron Corporation has an insurance policy which
insures the directors and officers of Thermo Electron and its
subsidiaries, including the Company, against certain liabilities
which might be incurred in connection with the performance of
their duties.
The Selling Shareholders are obligated under the Purchase
Agreements to indemnify directors, officers and controlling
persons of the Registrant against certain liabilities, including
liabilities under the Securities Act.
Item 16. Exhibits
14
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<PAGE>
See the Exhibit Index included immediately preceding the
exhibits to this Registration Statement.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes as
follows:
(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.
15
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<PAGE>
(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 (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 this
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.
16
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant has duly caused this Post-Effective Amendment No.
2 on Form S-3 to Registration Statement on Form S-1 to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Franklin, Commonwealth of Massachusetts, on this 10th
day of April, 1998.
THERMO OPTEK CORPORATION
By: /s/ Robert J. Rosenthal
------------------------
Robert J. Rosenthal
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 2 on Form S-3 to Registration
Statement on Form S-1 has been signed by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Robert J. Rosenthal President, Chief April 10, 1998
------------------------ Executive Officer
Robert J. Rosenthal and Director (Principal
Executive Officer)
John N. Hatsopoulos* Chief Financial April 10, 1998
------------------------- Officer and Senior Vice President
John N. Hatsopoulos (Principal Financial Officer)
Paul F. Kelleher* Chief Accounting April 10, 1998
------------------------- Officer (Principal
Paul F. Kelleher Accounting Officer)
Earl R. Lewis* Chairman of the April 10, 1998
--------------------- Board and Director
Earl R. Lewis
Dr. George N. Hatsopoulos* Director April 10, 1998
--------------------------
Dr. George N. Hatsopoulos
Stephen R. Levy Director April , 1998
-------------------------- --
Stephen R. Levy
Robert A. McCabe* Director April 10, 1998
--------------------
Robert A. McCabe
Arvin H. Smith* Director April 10, 1998
-----------------------
Arvin H. Smith
17
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<PAGE>
* The undersigned Sandra L. Lambert, by signing her name
hereto, does hereby execute this Post-Effective Amendment No. 2
on Form S-3 to Registration Statement on Form S-1 on behalf of
each of the above-named persons pursuant to powers of attorney
executed by such persons and filed with the Securities and
Exchange Commission.
/s/ Sandra L. Lambert
---------------------
Sandra L. Lambert
Attorney-in-Fact
18
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<PAGE>
EXHIBIT INDEX
Exhibit Description of Exhibit
------- ----------------------
No.
---
4 Specimen Common Stock Certificate (filed as Exhibit
4 to the Registrant's Registration Statement on Form
S-1 [Registration No. 333-3630] and incorporated
herein by reference).
5 Opinion of Seth H. Hoogasian, Esq. (previously
filed)
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Seth H. Hoogasian, Esq. (contained in
Exhibit 5)
AA980390006
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<PAGE>
Exhibit 23.1
Consent of Independent Public Accountants
-----------------------------------------
To Thermo Optek Corporation:
As independent public accountants, we hereby consent to the
incorporation by reference of our report dated February 17, 1998,
incorporated by reference in this registration statement and to
all references to our firm included in or made a part of this
registration statement on Form S-3.
Arthur Andersen LLP
Boston, Massachusetts
April 7, 1998
