As filed with the Securities and Exchange Commission on May 11, 1994
Registration No. 33-45401
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
1,200,000 SHARES
THERMO ELECTRON CORPORATION
COMMON STOCK
PAR VALUE $1.00 PER SHARE
This Prospectus relates to the offer and sale of
1,200,000 shares (the "Shares") of Common Stock, par value $1.00
per share (the "Common Stock"), of Thermo Electron Corporation
(the "Company"). The Shares may be offered by certain
shareholders of the Company (the "Selling Shareholders") 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
Shareholders 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 Shareholders 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 Shareholders 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.
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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 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.
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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 SHAREHOLDERS
The following table shows the names of Selling Shareholders,
the number of shares of Common Stock each of them owned as of
January 1, 1992, the number of shares that may be offered by each
of them and the number of shares and percentage of the class each
of them will own after completion of the offering, assuming all
of the Shares being offered are sold.
Shares of
Common Stock Shares of Common
Owned Prior Shares of Stock Owned
Selling to the Common After Completion
Shareholder Offering(1) Stock Being of Offering (1)
----------- ----------- ----- ------------
Offered
-------
% of
Number class
------ -----
County NatWest 298,500 298,500 0 -
Securities Limited
Daido International 12,000 12,000 0 -
Inc.
Daiwa American 10,500 10,500 0 -
Balanced Portfolio
Class Fund
Daiwa International 15,000 15,000 0 -
Growth Portfolio
Class Fund
Daiwa Securities 30,000 30,000 0 -
Trust-Taiyo Life
Global Bond Portfolio 13,500 13,500 0 -
Class Fund
The Nippon Credit 30,000 30,000 0 -
Bank, Ltd.
Nomura Securities 304,500 304,500 0 -
International, Inc.
Okura & Co. 7,500 7,500 0 -
(America), Inc.
The Sumitomo Trust & 150,000 150,000 0 -
Banking Co., Ltd.
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Taiyo Life Investment 22,500 22,500 0 -
Ltd. - Bahama
Tokio Marine Asset 22,500 22,500 0 -
Management New York
Co.
Toyo Trust & Banking 15,000 15,000 0 -
Co., Ltd.
The Yasuda Mutual 58,500 58,500 0 -
Life Insurance
Company
The Yasuda Trust & 210,000 210,000 0 -
Banking Co., Ltd.
____________________________
(1) Ownership Calculated in accordance with Securities and
Exchange Commission Rule 13d-3, promulgated under the
Securities Exchange Act of 1934, as amended.
Nomura Securities International, Inc. (one of the Selling
Shareholders) and affiliates of certain of the other Selling
Shareholders, namely County NatWest Securities Limited, Daiwa
International Growth Portfolio Class Fund, Daiwa Securities
Trust-Taiyo Life, Global Bond Portfolio Class Fund and Daiwa
American Balanced Portfolio Class Fund, have served as placement
agent and underwriter for certain offerings of securities by the
Company and its affiliates (including the sale of the Shares from
the Company to certain of the Selling Shareholders) in the past
three years and have received compensation therefor. Such
persons may serve in that capacity in the future.
The Shares are being registered to permit public secondary
trading of the Shares from time to time by the Selling
Shareholders. All of the Shares being offered by the Selling
Shareholders were acquired by them from the Company in private
placement transactions pursuant to Purchase Agreements dated as
of January 29, 1992 (the "Purchase Agreements"), at a gross
purchase price per share of approximately $29.67. County NatWest
Limited, Daiwa Securities America Inc. and Nomura Securities
International, inc. (collectively, "the Placement Agents") acted
as placement agents on behalf of the Company in connection with
the sale of the Shares by the Company to the Selling
Shareholders. The Company has agreed to pay the Placement Agents
a fee of $1.04 per Share for their services. 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
Shareholders) in connection with the registration and sale of the
Shares being offered by the Selling Shareholders.
Each Selling Shareholder represented in its respective
Purchase Agreement that it was purchasing the Shares from the
Company for investment, with no present intention of effecting a
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distribution of such Shares. In recognition of the fact that
these investors, even though purchasing the Shares without a view
to distribution, may wish to be legally permitted to sell their
Shares when they deem 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 Shareholders.
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
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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 ...................$ 11,125.00
New York Stock Exchange listing fee ...... 2,800.00
Legal fees and expenses ................. 25,000.00
Accounting fees and expenses ............ 1,500.00
Miscellaneous ........................... 10,000.00
TOTAL ..................................$ 50,425.00
*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
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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 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
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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 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
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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 attorneys' fees) actually and reasonably incurred by
him in connection therewith.
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(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."
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(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.
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
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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.
(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.
II - 7
PAGE
<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-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 11,1994
--------------------------
George N. Hatsopoulos Executive Officer
and Director
/s/ John N. Hatsopoulos* Executive Vice May 11, 1994
--------------------------
John N. Hatsopoulos President (Chief
Financial Officer)
/s/ Paul F. Kelleher* Vice President, May 11, 1994
--------------------------
Paul F. Kelleher (Chief Accounting
Officer)
Director May , 1994
-------------------------- --
John M. Albertine
Director May ,1994
-------------------------- --
Peter O. Crisp
/s/ Elias P. Gyftopoulos* Director May 11, 1994
--------------------------
Elias P. Gyftopoulos
II - 8
PAGE
<PAGE>
/s/ Frank Jungers* Director May 11,1994
-------------------------
Frank Jungers
Director May ,1994
-------------------------- --
Robert A. McCabe
/s/ Frank E. Morris* Director May 11, 1994
--------------------------
Frank E. Morris
/s/ Donald E. Noble* Director May 11, 1994
--------------------------
Donald E. Noble
Director May ,1994
-------------------------- --
Hutham S. Olayan
/s/ Roger D. Wellington* Director May 11, 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
AA940350053
II - 9
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 Form of Purchase Agreement between the Registrant
and each of the Selling Shareholders
EXHIBIT 5
May 11, 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 1,200,000 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
