As filed with the Securities and Exchange Commission on July 16, 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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THERMO CARDIOSYSTEMS INC.
(Exact name of registrant as specified in its charter)
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MASSACHUSETTS 04-3027040
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
470 Wildwood Street
Woburn, MA 01888
(Address of Principal Executive Offices) (Zip Code)
THERMO CARDIOSYSTEMS INC. EQUITY INCENTIVE PLAN
THERMO ELECTRON CORPORATION - THERMO CARDIOSYSTEMS INC. NONQUALIFIED STOCK
OPTION PLAN
THERMO CARDIOSYSTEMS INC. EMPLOYEES EQUITY INCENTIVE PLAN
THERMEDICS INC. DIRECTORS STOCK OPTION PLAN
THERMO ELECTRON CORPORATION DIRECTORS STOCK OPTION PLAN
(Full Titles of the Plans)
Sandra L. Lambert, Clerk
Thermo Cardiosystems Inc.
c/o 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
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Thermo Cardiosystems Inc.
c/o 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,
$.10 par value 1,642,500 $10.8125 $17,759,531.25 $4,938
per share shares (2) (2)
(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 Cardiosystems Inc. Equity Incentive Plan 1,000,000
Thermo Electron Corporation / Thermo
Cardiosystems Inc. Nonqualified Stock
Option Plan 55,000
Thermo Cardiosystems Inc. Employees Equity
Incentive Plan 250,000
Thermedics Inc. Directors Stock Option Plan 37,500
Thermo Electron Corporation Directors
Stock Option Plan 300,000
(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
1,642,500 shares and (2) the average of the high and low sales prices,
$11.25 and $10.375, respectively, of the Registrant's Common Stock on the
American Stock Exchange on July 12, 1999 as reported in the consolidated
reporting system.
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EXPLANATORY NOTE
With respect to the Thermo Cardiosystems Inc. Equity Incentive Plan (the
"TCA Equity Plan") and the Thermo Electron Corporation / Thermo Cardiosystems
Inc. Nonqualified Stock Option Plan (the "TMO/TCA 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 January 27, 1992 and May 10, 1994, the Company filed registration
statements on Form S-8 (Reg. Nos. 33-45255 and 33-78736, respectively) to
register an aggregate of 77,125 shares of Common Stock reserved for issuance
under the TMO/TCA Plan. Giving effect to increases under the TMO/TCA Plan as a
result of stock splits, the addition of this Registration Statement brings the
total number of shares registered for issuance under the TMO/TCA Plan to
250,000. In addition, on July 25, 1996, the Company filed a registration
statement on Form S-8 (Reg. No. 333-8809) to register 750,000 shares of Common
Stock reserved for issuance under the TCA Equity Plan. The addition of this
Registration Statement brings the total number of shares registered for issuance
under the TCA Equity Plan to 1,750,000. The contents of the previously filed
registration statements relating to the TMO/TCA Plan and the TCA Equity 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 Cardiosystems Inc.
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:
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(a) The Company's Annual Report on Form 10-K for the fiscal year
ended January 3, 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 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 Thermo Electron Corporation ("Thermo Electron"), the
majority stockholder of Thermedics Inc. ("Thermedics"), which in turn is the
majority stockholder of the Company, is an officer of the Company, Thermedics
and Thermo Electron, and owns or has the right to acquire 9,565 shares of the
common stock, $.10 par value per share, of Thermedics, 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 Massachusetts Business Corporation Law and the Company's Articles of
Organization 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.
<PAGE>
Thermo Electron 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.
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.
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(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.
<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 Woburn, State of Massachusetts, on this 16th day of
July, 1999.
THERMO CARDIOSYSTEMS INC.
By: /s/ R. Michael Kleine
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R. Michael Kleine
Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned Directors and Officers of Thermo Cardiosystems
Inc. 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
/s/ R. Michael Kleine Chief Executive Officer July 16, 1999
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R. Michael Kleine
/s/ Theo Melas-Kyriazi Chief Financial Officer July 16, 1999
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Theo Melas-Kyriazi
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/s/ Paul F. Kelleher Chief Accounting Officer July 16, 1999
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Paul F. Kelleher
/s/ John T. Keiser Chairman of the Board July 16, 1999
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John T. Keiser
/s/ Walter J. Bornhorst Director July 16, 1999
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Walter J. Bornhorst
/s/ Elias P. Gyftopoulos Director July 16, 1999
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Elias P. Gyftopoulos
/s/ Leonard Laster Director July 16, 1999
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Leonard Laster
/s/ Victor L. Poirier Director and President July 16, 1999
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Victor L. Poirier
/s/ Nicholas T. Zervas Director July 16, 1999
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Nicholas T. Zervas
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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).
24 Power of Attorney (see signature pages to this Registration
Statement).
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EXHIBIT 5.1
Thermo Cardiosystems Inc.
470 Wildwood Street
Woburn, MA 01888
July 16, 1999
Thermo Cardiosystems Inc.
470 Wildwood Street
Woburn, MA 01888
Re: Registration Statement on Form S-8
Relating to 1,642,500 Shares of the Common Stock,
$.10 par value, of Thermo Cardiosystems Inc.
Dear Sirs:
I am General Counsel to Thermo Cardiosystems Inc., 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 1,642,500 shares of the Company's Common Stock, $.10 par value
per share (the "Shares") subject to the following employee benefit plans (each,
a "Plan"): Thermo Cardiosystems Inc. Employees Equity Incentive Plan, Thermo
Cardiosystems Inc. Equity Incentive Plan, Thermedics Inc. Directors Stock Option
Plan, Thermo Electron Corporation / Thermo Cardiosystems Inc. Nonqualified Stock
Option Plan and Thermo Electron Corporation Directors Stock Option 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 Commonwealth of Massachusetts.
<PAGE>
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 5.1 to the
Registration Statement.
Very truly yours,
/s/ Seth H. Hoogasian
Seth H. Hoogasian
General Counsel
<PAGE>
Exhibit 23.1
[ARTHUR ANDERSEN LLP LETTERHEAD]
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 11, 1999, included in Thermo Cardiosystems Inc.'s Annual Report on Form
10-K for the year ended January 3, 1999, and to all references to our Firm
included in this registration statement.
Arthur Andersen LLP
Boston, Massachusetts
July 13, 1999
