As filed with the Securities and Exchange Commission on May 12, 1994
Registration No. 33-42694
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-effective Amendment No. 1
Form S-3
REGISTRATION STATEMENT
under
The Securities Act of 1933
THERMO ELECTRON CORPORATION
(Exact name of registrant as specified in charter)
Delaware 04-2209186
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
81 Wyman Street
P.O. Box 9046
Waltham, MA 02254
(617) 622-1000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Sandra L. Lambert, Secretary
Thermo Electron Corporation
81 Wyman Street, P.O. Box 9046
Waltham, Massachusetts 02254-9046 (617) 622-1000
(Name, address, including zip code, and 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 02254-9046
(617) 622-1000
Approximate date of commencement of proposed sale to public: From time to time
after this Registration Statement is declared effective.
If the only securities being registered 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|
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EXPLANATORY NOTE
Pursuant to Rule 416 promulgated under the Securities Act of 1993, as
amended, this Amendment is being filed to include in this Registration Statement
additional shares of Common Stock that may be offered hereby as a result of a
three-for-two stock split effected by the Registrant.
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P R O S P E C T U S
125,001 SHARES
THERMO ELECTRON CORPORATION
COMMON STOCK
PAR VALUE $1.00 PER SHARE
This Prospectus relates to the reoffer and resale of 125,001 shares (the
"Shares") of Common Stock, par value $1.00 per share (the "Common Stock"), of
Thermo Electron Corporation (the "Company") issuable upon conversion of the
Company's 4 1/2% Convertible Subordinated Debentures due 2001 (the
"Debentures"). The Debentures are convertible into the Common Stock, at the
option of the holder, at a conversion price of $24.00 per share, subject to
certain adjustments. The Shares may be offered by the holder of the Debentures
(the "Selling Shareholder") from time to time in transactions on the New York
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 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. The Selling
Shareholder may effect such transactions by the sale of 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 Shareholder and/or the
purchasers of the Shares for whom such broker-dealers may act as agent or to
whom they may sell as principal, or both (which compensation to a particular
broker-dealer might be in excess of customary commissions). The Selling
Shareholder 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 commission
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.
Unless otherwise indicated, all share and per share amounts contained in this
prospectus reflect the three-for-two stock split effected by the Company on
October 28, 1993.
None of the proceeds from the sale of the Shares 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
advisors 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, including liabilities
under the Securities Act as underwriter or otherwise.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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. 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
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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.
May , 1994
--
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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:
7 World Trade Center, Suite 1300, New York, New York 10048 and 500 West Madison
Street, Chicago, Illinois 60661. 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 Common Stock of the Company is
listed on the New York Stock Exchange, and the reports, proxy statements and
other information filed by the Company with the Commission can be inspected at
the office of the New York Stock Exchange, 20 Broad Street, 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 Electron Corporation, 81 Wyman Street, P.O. Box 9046, Waltham,
Massachusetts 02254-9046 (telephone number: (617) 622-1000).
THE COMPANY
The Company develops, manufactures and markets environmental and analytical
instruments, cogeneration systems, process equipment and biomedical products,
and provides environmental and metallurgical services. In addition, the Company
performs research and development based on advanced technologies for government
and other customers. The Company conducts its business through its divisions
and wholly-owned subsidiaries, as well as through majority-owned subsidiaries
that are partially owned by the public or by private investors.
The Company was incorporated in 1956 and is a Delaware corporation. Its
principal offices are located at 81 Wyman Street, Waltham, Massachusetts
02254-9046, telephone (617) 622-1000.
SELLING SHAREHOLDER
The following table shows the name of the Selling Shareholder, the number
of shares of Common Stock owned by it as of August 15, 1991, the number of
shares that may be offered by the Selling Shareholder and the number of shares
and percentage of the class it will own after completion of the offering,
assuming all of the Shares being offered are sold.
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Shares of
Common Stock Shares of Shares of Common
Owned Prior Common Stock Stock Owned After
Selling to the Being Completion of
Shareholder Offering(1) Offered Offering (1)
----------- ----------- ------- ------------
% of
Number class
------ -----
Cazenove Fund 182,637 125,001 57,636 0.2%
Management
(1) Calculated in accordance with Securities and
Exchange Commission Rule 13d-3, promulgated under the
Securities Exchange Act of 1934, as amended.
An affiliate of Cazenove Fund Management, the Selling Shareholder, has
served as placing agent and underwriter for certain offerings of securities by
the Company and its affiliates (including the sale of the Debentures from the
Company to the Selling Shareholder) in the past three years and has received
customary compensation therefor. Such affiliate of Cazenove Fund Management may
serve in this capacity in the future.
The Shares are being registered to permit public secondary trading of the
Shares from time to time by the Selling Shareholder after conversion of the
Debentures. All of the Debentures were acquired by the Selling Shareholder from
the Company in a private placement transaction pursuant to a Purchase Agreement
dated as of August 15, 1991 (the "Purchase Agreement"), at a gross purchase
price of 100% of principal. Cazenove & Co., an affiliate of the Selling
Shareholder, acted as placement agent on behalf of the Company in connection
with the sale of the Debentures by the Company to the Selling Shareholder. The
Company has agreed to pay Cazenove & Co. a placement fee of 1.75% of the gross
purchase price of the Debentures. The Company has also agreed, among other
things, to bear all expenses (other than underwriting discounts and selling
commissions, and fees and expenses of counsel and other advisers to the Selling
Shareholder) in connection with the registration and sale of the Shares being
offered by the Selling Shareholder.
The Selling Shareholder represented in its Purchase Agreement that it was
purchasing the Shares from the Company for investment, with no present intention
of effecting a distribution of such Shares. In recognition of the fact that
this investor, even though purchasing the Shares without a view to distribution,
may wish to be legally permitted to sell its Shares when it deems appropriate,
the Company has filed with the Commission under the Securities Act a
Registration Statement on Form S-3, of which this Prospectus forms a part, with
respect to the resale of the Shares from time to time on the New York Stock
Exchange or in privately-negotiated transactions and has agreed to prepare and
file such amendments and supplements to the Registration Statement as may be
necessary to keep the Registration Statement effective until all the Shares
offered hereby have been sold pursuant thereto or until such Shares are no
longer, by reason of Rule 144(k) under the Securities Act or any other rule of
similar effect, required to be registered for the sale thereof by the Selling
Shareholder.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission are
incorporated in this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the year ended January 2,
1993.
2. The description of the Company's Common Stock which is contained in
its Registration Statement on Form 8-A, filed under the Securities
Exchange Act of 1934, and declared effective on August 21, 1980,
including any amendment, report or registration statement on Form 8-A
filed for the purpose of updating such description.
3. The description of the Company's Preferred Stock Purchase Rights which
is contained in its Registration Statement on Form 8-A, filed under
the Securities Exchange Act of 1934 on May 17, 1988, including any
amendment, report or registration statement on Form 8-A filed for the
purpose of updating such description.
4. The Company's current report on Form 8-K, as amended, relating to
events that occurred on February 26, 1993.
5. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended April 3, 1993.
6. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended July 3, 1993.
7. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended October 2, 1993.
All reports or proxy statements filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to
the date of this Prospectus and prior to termination of the offering made hereby
shall be deemed to be incorporated by reference in this Prospectus and to be a
part hereof from the respective dates of filing such documents. Any statement
contained in a document 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, supersedes or replaces such statement. Any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
LEGAL OPINION
Certain legal matters relating to the shares of Common Stock will be passed
upon for the Company by Seth H. Hoogasian, General Counsel of the Company. Mr.
Hoogasian owns or has the right to acquire 33,623 shares of the Company's Common
Stock and 101,000 shares of common stock of the Company's subsidiaries.
EXPERTS
The financial statements and schedules included in the Company's Annual
Report on Form 10-K for the year ended January 2, 1993 incorporated by reference
in this Registration Statement have been audited by Arthur Andersen & Co.,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities which are being registered hereby, other than underwriting discounts
and commissions, are as follows:
Amount*
-------
SEC registration fee ....................$ 816
New York Stock Exchange listing fee ...... 292
Legal fees and expenses ................. 100
Accounting fees and expenses ............ 1,500
Miscellaneous ........................... 500
TOTAL ...................................$ 3,208
*All amounts are estimated except SEC registration fee and New York Stock
Exchange listing fee. All such expenses are paid by the Company.
Item 15. Indemnification of Directors and Officers.
(a) Section 145 of the General Corporation Law of the State of Delaware
(Chapter 1, Title 8, Delaware Code of 1953) provides as follows:
"(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he 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, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he 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 against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
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reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the corporation as
authorized in this section. Such expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses, provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who 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 against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
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authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person."
(b) Section 7 of Article NINTH of the Registrant's Restated Certificate of
Incorporation provides as follows:
"(a) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(except as otherwise provided herein), by reason of the fact that he is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
(b) In the case of any action or suit by or in the right of the Corporation
to procure a judgment in its favor, no indemnification shall be made (i) except
for expenses (including attorneys' fees) or (ii) in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) or (b), or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
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attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) or (b) (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set
forth in subsections (a) and (b). Such determination shall be (i) by the Board
of Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (ii) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
(e) Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of the director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this section.
(f) The indemnification and advancement of expenses provided by this
section shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and
administrators of such person."
(c) Article THIRTEENTH of the Registrant's Restated Certificate of
Incorporation provides as follows:
"No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that this provision shall not eliminate
or limit the liability of a director to the extent provided by applicable law
(i) for any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under section 174 of
the General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit. The
foregoing provisions of this Article shall not eliminate the liability of a
director for any act or omission occurring prior to the date on which this
Article becomes effective. No amendment to or repeal of this Article shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal."
(d) The Registrant has an insurance policy issued by the Chubb Group which
insures its directors and officers against certain liabilities which might be
incurred in connection with the performance of their duties.
(e) The Registrant has indemnification agreements with its directors and
officers that provide the maximum indemnification allowed by law.
Item 16. Exhibits.
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See the Exhibit Index included immediately preceding the exhibits to this
Registration Statement.
Item 17. 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;
(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 registration statement is on Form S-3 or Form S-8, and 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 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.
(4) If the Registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include
any financial statements required by Rule 3-19 of Regulation S-X
at the start of any delayed offering or throughout a continuous
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 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.
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(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.
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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-3 and has duly caused this Amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Waltham, Commonwealth of Massachusetts, on May 11, 1994.
THERMO ELECTRON CORPORATION
By: /s/George N. Hatsopoulos*
George N. Hatsopoulos
President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
on Form S-3 of Thermo Electron Corporation has been signed below by the
following persons in the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ George N. Hatsopoulos* President (Chief May 12, 1994
- - --------------------------
George N. Hatsopoulos Executive Officer
and Director
/s/ John N. Hatsopoulos* Executive Vice May 12, 1994
- - --------------------------
John N. Hatsopoulos President (Chief
Financial Officer)
/s/ Paul F. Kelleher* Vice President, May 12, 1994
- - --------------------------
Paul F. Kelleher (Chief Accounting
Officer)
/s/ John M. Albertine* Director May 12, 1994
- - --------------------------
John M. Albertine
/s/ Peter O. Crisp* Director May 12, 1994
- - --------------------------
Peter O. Crisp
/s/ Elias P. Gyftopoulos* Director May 12, 1994
- - --------------------------
Elias P. Gyftopoulos
/s/ Frank Jungers* Director May 12, 1994
- - --------------------------
Frank Jungers
Director May ,1994
- - -------------------------- --
Robert A. McCabe
PAGE
<PAGE>
/s/ Frank E. Morris* Director May 12, 1994
- - --------------------------
Frank E. Morris
Director May ,1994
- - -------------------------- --
Donald E. Noble
Director May ,1994
- - -------------------------- --
Hutham S. Olayan
/s/ Roger D. Wellington* Director May 12, 1994
- - --------------------------
Roger D. Wellington
* The undersigned Sandra L. Lambert, by signing her name hereto, does
hereby execute this Amendement on behalf of each of the above-named persons
pursuant to powers of attorney by each person as filed with the Securities and
Exchange Commission.
/s/ Sandra L. Lambert
Sandra L. Lambert
Attorney-in-Fact
AA940350063
PAGE
<PAGE>
EXHIBIT INDEX
No. Description Page
--- ----------- ----
4.1 Registrant's Restated Certificate of
Incorporation, as amended (filed as
Exhibit 4.1 to the Registrants Registration
Statement on Form S-3 (No. 33-64324) and
incorporated herein by reference).
4.2 Rights Agreement dated as of May 4, 1998
between the Registrant and The First National
Bank of Boston, which includes as Exhibit A
the form of Certificate of Designations, as
Exhibit B the form of Rights Certificates, and
as Exhibit C the Summary of Rights to Purchase
Preferred Stock (filed as Exhibit 4.1 to the
Registrant's Current Report on Form 8-K, as
amended (File No. 1-8002) relating to events
that occurred on May 4, 1998 and incorporated
by reference herein).
4.3 Specimen Common Stock Certificate of the
Registrant (filed as Exhibit 4.3 to the
Registrant's Registration Statement on Form
S-3 (No. 33-39434) and incorporated herein by
reference).
5 Opinion of Seth H. Hoogasian, Esq.
23.1 Consent of Seth H. Hoogasian, Esq. (included
in Exhibit 5).
23.2 Consent of Arthur Andersen & Co. (filed as Exhibit
24 to the Registrant's Annual Report on Form 10-K
for the year ended January 2, 1993 (File No.1-8002)
and incorporated herein by reference).
24 Power of Attorney (previously filed).
99 Purchase Agreements between the Registrant and
EXHIBIT 5
May 12, 1994
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, DC 20549
Re: Registration Statement on Form S-3 Relating to Shares
of Common Stock, Par Value $1.00 Per Share, of Thermo
Electron Corporation
Dear Sirs:
I am General Counsel to Thermo Electron Corporation (the
"Company") and have acted as counsel in connection with the
registration under the Securities Act of 1933, as amended (the
"Act"), on Form S-3 of 125,001 shares of the Company's Common
Stock, par value $1.00 per share (the "Shares"), which may from
time to time be sold by certain selling shareholders of the
Company.
I or members of my staff have reviewed the corporate
proceedings taken by the Company with respect to the
authorization of the issuance of the Shares. I or members of my
staff have also examined and relied upon originals or copies,
certified or otherwise authenticated to our 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 as deemed necessary or appropriate.
Based upon and subject to the foregoing, I am of the opinion
that the Shares have been duly authorized by the Company and when
issued as contemplated by the Registration Statement will be
validly issued, fully paid and non-assessable.
Pursuant to the requirements of the Act, I hereby consent to
the filing of this opinion as Exhibit 5 to the Registration
Statement, including any amendments thereto, and to the use of my
name under the caption "Legal Opinion" in the prospectus
constituting a part thereof.
Very truly yours,
/s/ Seth H. Hoogasian
Seth H. Hoogasian
