As filed with the Securities and Exchange Commission on May 14, 1998
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
METTLER-TOLEDO INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3668641
(State or other jurisdiction of (I.R.S.Employer Identification No.)
incorporation or organization)
Im Langacher, P.O. Box MT-100
CH 8606 Greifensee
Switzerland
(Address of principal executive offices, including zip code)
METTLER-TOLEDO INTERNATIONAL INC.
1997 AMENDED AND RESTATED STOCK OPTION PLAN
William P. Donnelly
METTLER-TOLEDO INTERNATIONAL INC.
Im Langacher, P.O. Box MT-100
CH 8606 Greifensee
Switzerland
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered per share price registration fee
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<S> <C> <C> <C> <C>
Common Stock 6,368,445(1) * (2) * (2) $23,726.83(2)
($.01 par value)
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(1) Includes an indeterminate number of shares of Common Stock that may be
issuable by reason of stock splits, stock dividends or similar
transactions in accordance with Rule 416 under the Securities Act of
1933.
(2) As of the date hereof, options to purchase 3,537,047 shares of Common
Stock of the Registrant have been granted pursuant to the
Mettler-Toledo International Inc. 1997 Amended and Restated Stock
Option Plan at a weighted-average exercise price of $7.95 per share
and 871,693 shares of Common Stock of the Registrant have been granted
pursuant to the Mettler-Toledo International Inc. 1997 Amended and
Restated Stock Option Plan at a weighted-average exercise price of
$15.89 per share. The registration fee for the foregoing shares is
based upon such exercise prices. Pursuant to Rule 457(c), the
registration fee for the 1,959,705 remaining shares not currently
subject to outstanding options is based upon a price of $19.625 per
share, the average of the high and low sales prices for the Company's
common stock on May 11, 1998.
</TABLE>
EXPLANATORY NOTE
This Registration Statement on Form S-8 relates to the registration of
6,368,445 shares of common stock, par value $.01 per share (the "Common
Stock"), which are issuable upon the exercise of options which have been,
or remain to be, granted under the Mettler-Toledo International Inc. 1997
Amended and Restated Stock Option Plan.
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which are filed with the Securities and
Exchange Commission (the "Commission"), are incorporated in this
Registration Statement by reference:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1998; and
(3) The description of the Common Stock, which is registered under Section
12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
contained in the Registration Statement on Form 8-A filed with the
Commission on December 16, 1997, which incorporates by reference the
description of the Common Stock contained in the Registration Statement on
Form S-1 (No. 333-35597) (originally filed on September 15, 1997), as
amended, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common
Stock then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of the filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain Legal matters with respect to the validity of the Common Stock
offered hereby will be passed upon for the Company by Fried, Frank, Harris,
Shriver & Jacobson (a partnership including professional corporations),
London, England. A partnership in which partners of Fried, Frank, Harris,
Shriver & Jacobson are partners is a shareholder of the Company.
The financial statements incorporated by reference in this
Registration Statement from the Company's Annual Report on Form 10-K for
the year ended December 31, 1997 have been audited by KPMG Fides Peat,
independent auditors, as set forth in their report which is incorporated by
reference herein and has been so incorporated in reliance upon the report
given upon the authority of such firm as experts in accounting and
auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company, as a Delaware corporation, is empowered by Section 145 of
the General Corporation Law of the State of Delaware (the "DGCL"), subject
to the procedures and limitations stated therein, to indemnify any person
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with any threatened, pending or completed action, suit or proceeding in
which such person is made or threatened to be made a party by reason of his
being or having been a director, officer, employee or agent of the Company
or his serving at the request of the Company as a director, officer,
employee or agent of another company or other entity. The statute provides
that indemnification pursuant to its provisions is not exclusive of other
rights of indemnification to which a person may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors, or
otherwise. The Company's Amended By-laws provides for indemnification by
the Company of its directors and officers to the full extent authorized by
the DGCL. Pursuant to Section 145 of the DGCL, the Company has purchased
insurance on behalf of its present and former directors and officers
against liabilities asserted against or incurred by them in such capacity
or arising out of their status as such.
Pursuant to specific authority granted by Section 102 of the DGCL, the
Company's Amended and Restated Certificate of Incorporation contains the
following provision regarding indemnification of directors:
"To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be
amended, a Director of the Corporation shall not be liable
to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director."
The Amended By-laws contain the following provision regarding
indemnification of directors and officers:
"The Corporation shall indemnify to the full extent authorized by law
any person made or threatened to be made a party to an action, suit or
proceeding, whether criminal, civil administrative or investigative, by
reason of the fact that he, his testator or intestate is or was a director,
officer, employee or agent of the Corporation or is or was serving, at the
request of the Corporation, as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise."
The Company has entered into agreements to provide indemnification for
its directors and certain officers in addition to the indemnification
provided for in the Company's Amended and Restated Certificate of
Incorporation and Amended By-Laws. These agreements, among other things,
indemnify the directors, to the fullest extent provided by Delaware law,
for certain expenses (including attorneys' fees), losses, claims,
liabilities, judgments, fines and settlement amounts incurred by such
indemnitee in any action or proceeding, including any action by or in the
right of the Company, on account of services as a director or officer of
any affiliate of the Company, or as a director or officer of any other
company or enterprise that the indemnitee provides services to at the
request of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit No Description Of Exhibit
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4.1 Specimen Form of the Company's Common Stock Certificate
(Filed as Exhibit 4.3 to the Company's Registration
Statement, as amended (File No. 333-35597), on Form S-1 and
incorporated by reference herein)
4.2 Amended and Restated Certificate of Incorporation of the
Company (Filed as Exhibit 3.1 to the Company's Annual Report
on Form 10-K for the Fiscal Year Ending December 31, 1997
and incorporated by reference herein)
4.3 Amended By-Laws of the Company (Filed as Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the period ending
December 31, 1997 and incorporated by reference herein)
4.4 Mettler-Toledo International Inc. 1997 Amended and Restated
Stock Option Plan (Filed as Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1998 and incorporated by reference herein)
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson as to
the validity of the shares of Common Stock covered by the
Registration Statement
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1)
23.2 Consent of KPMG Fides Peat, Independent Auditors
24.1 Power of Attorney (included on the signature page included
in this Part II)
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 this Registration
Statement (or the most recent post-effective
amendment hereto) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this 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; and
(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 this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall
not apply if 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 Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) 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 Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 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 of 1933
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 NEW YORK, STATE OF NEW YORK, ON
THE 14TH OF MAY, 1998.
METTLER-TOLEDO INTERNATIONAL INC.
By:/s/ William P. Donnelly
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William P. Donnelly
Chief Financial
Officer
KNOWN ALL MEN BY THESE PRESENTS, that each person whose name appears
below consitutes and appoints Robert F. Spoerry and William P. Donnelly,
and each of them, his true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution, 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, as
well as any related Registration Statement (or amendment thereto) filed
pursuant to Rule 462(b) promulgated under the Securities Act of 1933, and
to file the same, with all exhibits thereto and other 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 connection therewith, 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 his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney may be executed in multiple counterparts, each
of which shall be deemed an original, but which taken together shall
constitute one instrument.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Robert F. Spoerry May 14, 1998
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Robert F. Spoerry President and Chief Executive
Officer (Principal Executive
Officer), Director
/s/ William P. Donnelly May 14, 1998
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William P. Donnelly Chief Financial Officer
/s/ Philip Caldwell May 14, 1998
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Philip Caldwell Chairman of the Board
/s/ Reginal H. Jones May 14, 1998
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Reginal H. Jones Director
/s/ John D. Macomber May 14, 1998
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John D. Macomber Director
/s/ John M. Manser May 14, 1998
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John M. Manser Director
/s/ Laurence Z.Y. Moh May 14, 1998
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Laurence Z.Y. Moh Director
/s/ Thomas P. Salice May 14, 1998
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Thomas P. Salice Director
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 Specimen Form of the Company's Common Stock Certificate
(Filed as Exhibit 4.3 to the Company's Registration
Statement, as amended (File No. 333-35597), on Form S-1 and
incorporated by reference herein)
4.2 Amended and Restated Certificate of Incorporation of the
Company (Filed as Exhibit 3.1 to the Company's Annual Report
on Form 10-K for the Fiscal Year Ending December 31, 1997
and incorporated by reference herein)
4.3 Amended By-Laws of the Company (Filed as Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the period ending
December 31, 1997 and incorporated by reference herein)
4.4 Mettler-Toledo International Inc. 1997 Amended and Restated
Stock Option Plan (Filed as Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1998 and incorporated by reference herein)
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson as to
the validity of the shares of Common Stock covered by the
Registration Statement
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1)
23.2 Consent of KPMG Fides Peat, Independent Auditors
24.1 Power of Attorney (included on the signature page included
in this Part II)
Exhibit 5.1
[LETTERHEAD OF FRIED, FRANK, HARRIS, SHRIVER & JACOBSON]
May 14, 1998
Mettler-Toledo International Inc.
Im Langacher
P.O. Box MT-100
CH 8606 Greifensee
Switzerland
Ladies and Gentlemen:
We have acted as special counsel for Mettler-Toledo International
Inc., a Delaware corporation (the "Company"), in connection with the
registration, pursuant to a Registration Statement on Form S-8 (the "Form
S-8"), of 6,368,445 shares (the "Shares") of Common Stock, par value $.01
per share, of the Company. The Shares may be issued by the Company under
the Mettler-Toledo International Inc. 1997 Amended and Restated Stock
Option Plan (the "Plan") upon the exercise of options issued under the Plan
to employees of the Company. With your permission, all assumptions and
statements of reliance herein have been made without any independent
investigation or verification on our part except to the extent otherwise
expressly stated, and we express no opinion with respect to the subject
matter or accuracy of such assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, and such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company as we have deemed necessary or appropriate
for the purposes of this opinion.
In all such examinations, we have assumed the legal capacity of
all natural persons executing documents, the genuineness of all signatures,
the authenticity of original and certified documents and the conformity to
original or certified documents of all copies submitted to us as conformed
or reproduction copies. As to various questions of fact relevant to the
opinions expressed herein, we have relied upon, and assume the accuracy of,
representations and warranties contained in the documents and certificates
and oral or written statements and other information of or from
representatives of the Company and others and assume compliance on the part
of all parties to the documents with their covenants and agreements
contained therein.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that
the issuance of the Shares pursuant to the Plan has been duly authorized
and that such Shares, when issued, paid for and delivered as authorized in
accordance with the Plan, will be validly issued, fully paid and
non-assessable.
The opinions expressed herein are limited to the laws of the
United States of America and the General Corporation Law of the State of
Delaware, as currently in effect. The opinions expressed herein are given
as of the date hereof, and we undertake no obligation to supplement this
letter if any applicable laws change after the date hereof or if we become
aware of any facts that might change the opinions expressed herein after
the date hereof or for any other reason.
We hereby consent to the filing of this opinion as an exhibit to
the Form S-8 relating to the registration of the Shares. In giving such
consent, we do not hereby admit that we are in the category of such persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By:/s/ Timothy E. Peterson
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Timothy E. Peterson
Exhibit 23.2
[LETTERHEAD OF KPMG FIDES PEAT]
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Mettler-Toledo International Inc.:
We consent to the incorporation by reference in the registration statement
on Form S-8 of Mettler-Toledo International Inc. of our reports dated
February 6, 1998 relating to the consolidated balance sheets of
Mettler-Toledo International Inc. and subsidiaries as of December 31, 1996
and 1997, and the related consolidated statements of operations, net
assets/shareholders' equity and cash flows for the year ended December 31,
1995, for the period January 1, 1996 to October 14, 1996, for the period
October 15, 1996 to December 31, 1996, and for the year ended December 31,
1997, and the related schedule which reports appear in the December 31,
1997 annual report on Form 10-K of Mettler-Toledo International Inc.
/s/ KPMG Fides Peat
Zurich, Switzerland
May 14, 1998
