As filed with the Securities and Exchange Commission on January 12, 1996
Registration No. 033-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-3
Registration Statement
Under
The Securities Act of 1933
__________________
THERMO ELECTRON CORPORATION
(Exact name of registrant as specified in its charter)
------------------
Delaware 04-2209186
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
------------------
81 Wyman Street
P. O. Box 9046
Waltham, Massachusetts 02254-9046
(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, MA 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, Esquire
General Counsel
Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02254-9046
______________________
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the Registration Statement has become 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. [ ]
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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, please check the following box. [ x ]
__________________
CALCULATION OF REGISTRATION FEE
Proposed
Title of Maximum Proposed
securities Amount Offering Maximum Amount of
to be to be Price Per Aggregate Registration
registered registered Share Offering Price Fee
Common Stock,
$1.00 par 7,312
value per shares $46 15/16 $343,207 (1) $119 (1)
share (1)
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) based on the average of the
high and low sales prices of the Common Stock on the New York Stock
Exchange on January 11, 1996.
-------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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PROSPECTUS
7,312 Shares
THERMO ELECTRON CORPORATION
Common Stock
This Prospectus relates to 7,312 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 a certain
shareholder of the Company (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 prices related to such prevailing market
prices or at negotiated prices. The Selling Shareholder may effect such
transactions by selling the Shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions
or commissions from the Selling Shareholder and/or the purchasers of the
Shares for whom such broker-dealers may act as agent or to whom they sell as
principal, or both (which compensation to a particular broker-dealer might be
in excess of customary commissions). The Selling Shareholder and any
broker-dealer who acts in connection with the sales of Shares hereunder may
be deemed to be "underwriters" as that term is defined in the Securities Act
of 1933, as amended (the "Securities Act"), and any commissions received by
them and profit on any resale of the Shares as principal might be deemed to
be underwriting discounts and commissions under the Securities Act. The
Shares were originally acquired by the Selling Shareholder from Thermo Power
Corporation, a majority-owned subsidiary of the Company ("Thermo Power"),
pursuant to a Stock Purchase Agreement dated as of December 27, 1995 by and
among Thermo Power, the Selling Shareholder and the Company. See "Selling
Shareholder."
_____________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
_____________
None of the proceeds from the sale of the Shares by the Selling
Shareholder will be received by the Company. The Company has agreed to bear
all expenses (other than underwriting discounts and selling commissions, and
fees and expenses of counsel or other advisers to the Selling Shareholder) in
connection with the registration and sale of the Shares being registered
hereby. The Company has agreed to indemnify the Selling Shareholder against
certain liabilities, including liabilities under the Securities Act as
underwriters or otherwise.
__________, 1996
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_____________
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.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information can be inspected and copied
at the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices
of the Commission: 500 West Madison Street, Suite 1400, Chicago, Illinois
60661, and 7 World Trade Center, Suite 1300, New York, New York 10048.
Copies of such material can also be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549
at prescribed rates. The 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 offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
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 monitoring
and analysis instruments, biomedical products including heart-assist systems,
mammography systems and respiratory care products, paper-recycling and
papermaking equipment, alternative-energy systems, industrial process
equipment, and other specialized products. The Company also provides
environmental and metallurgical services and conducts advanced technology
research and development. The Company performs its business through its
divisions and wholly owned subsidiaries, as well as majority-owned
subsidiaries that are partially owned by the public or by private investors.
The Company has developed leading market positions in many lines of
business, including environmental monitoring and analysis instruments,
mammography systems, biomass power plants, and paper-recycling equipment and
papermaking accessories. The Company is currently seeking to establish
leading market positions in the fields of left ventriclar-assist devices,
explosives-detection systems, thermal soil-remediation services and dedicated
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natural gas engines. The Company is developing new products in its Advanced
Technologies segment, as well as other segments.
A key element in the Company's growth has been its ability to
commercialize innovative products and services emanating from research and
development activities conducted at the Company's various subsidiaries and
divisions. The Company's strategy has been to identify business
opportunities arising from social, economic and regulatory issues and to seek
a leading market share through the application of proprietary technology. As
part of this strategy, the Company continues to focus on the acquisition of
complementary businesses that can be integrated into existing core businesses
to leverage the Company's access to new markets.
The Company believes that maintaining an entrepreneurial atmosphere is
essential to continuing its growth and development. In order to preserve
this environment, the Company adopted the strategy of having certain
subsidiaries sell a minority interest to outside investors. The Company
believes that this strategy provides additional motivation and incentives for
the management of the subsidiaries through the establishment of
subsidiary-level stock options, as well as capital to support the
subsidiaries' growth. The Company's wholly owned and majority-owned
subsidiaries are provided with centralized strategic planning, corporate
development, administrative, financial and other services that would not be
available to many independent companies of similar size. As of November 1,
1995, the Company had 16 subsidiaries that have sold minority equity
interests, 12 of which are publicly traded.
The Company, a Delaware corporation, was incorporated in 1956, completed
its initial public offering in 1967, and was listed on the New York Stock
Exchange in 1980. The principal executive office of the Company is located
at 81 Wyman Street, Waltham, Massachusetts 02254-9046 (telephone:
617-622-1000).
RECENT DEVELOPMENTS
On March 1, 1995, the Company's Thermo Instrument Systems Inc. ("Thermo
Instrument") subsidiary entered into an agreement with Fisons plc ("Fisons")
to acquire the Scientific Instruments Division of Fisons for approximately
202 million British pounds sterling. On April 13, 1995, Thermo Instrument
announced that it had received a "second request" for information regarding
the transaction from the U.S. Federal Trade Commission ("FTC"). The FTC and
the Office of Fair Trading in England ("OFT") have expressed concern that
completion of the transaction in its original form would affect the
competition in the market for mass spectrometers. On November 1, 1995,
Thermo Instrument and Fisons entered into an amendment to the agreement that,
among other things, extends the termination date of the agreement from
November 17, 1995 to March 31, 1996, and establishes a framework for
modifying the transaction to satisfy the concerns of the FTC and OFT. On
November 17, 1995, Thermo Instrument announced that it had received clearance
to complete the acquisition from the Bundeskartellamt, Germany's competition
regulatory authority. In addition to receipt of required competition
regulatory approvals, completion of the transaction is subject to consent of
certain third parties and the satisfaction of other customary closing
conditions.
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On January 3, 1996, the Company sold at par $585 million principal
amount of its 4 1/4% Convertible Subordinated Debentures due 2003. The
debentures are convertible at the option of the holders thereof into shares
of Common Stock at an initial conversion price (subject to future
adjustments) of $56.70 per share.
SELLING SHAREHOLDER
The following table sets forth the name of the Selling Shareholder, the
number of shares of Common Stock owned by the Selling Shareholder, the number
of Shares that may be offered by the Selling Shareholder pursuant to this
Prospectus, and the number of Shares the Selling Shareholder will own after
completion of the offering, assuming all of the Shares being offered hereby
are sold.
Shares of Shares
Common Stock Owned
Owned Prior Shares After
to the Being Completion
Selling Shareholder Offering Offered of the
--------------------- -------- ------- Offering
--------
National Westminster
Bank Plc, New York 7,312 7,312 0
Branch (1)
_______________
(1) The Selling Shareholder and certain of its affiliates have provided
from time to time, and expect to provide in the future, investment
banking services to the Company and its affiliates for which the
Selling Shareholder has received and will receive customary fees
and commissions.
The Shares are being registered to permit public secondary trading of
the Shares from time to time by the Selling Shareholder. All of the Shares
being offered by the Selling Shareholder were acquired from Thermo Power
Corporation, a majority-owned subsidiary of the Company ("Thermo Power"),
pursuant to a Stock Purchase Agreement dated as of December 27, 1995 by and
among Thermo Power, the Selling Shareholder and the Company (the "Purchase
Agreement"). In the Purchase Agreement, the Company agreed, among other
things, to bear all expenses (other than underwriting discounts, selling
commissions, and fees and expenses of counsel and other advisors to the
Selling Shareholder) in connection with the registration and sale of the
Shares being offered by the Selling Shareholder. See "Sale of Shares." The
Company has agreed to prepare and file such amendments and supplements to the
Registration Statement of which this Prospectus forms a part as may be
necessary to keep the Registration Statement effective until all the Shares
registered thereunder have been sold pursuant thereto or until, by reason of
Rule 144(k) of the Commission under the Securities Act or any other rule of
similar effect, the Shares are no longer required to be registered for the
sale thereof by the Selling Shareholder.
SALE OF SHARES
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The Company has been advised that the Selling Shareholder may sell
Shares 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 which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market price or at negotiated prices. The Selling Shareholder may
effect such transactions by selling the Shares to or through broker-dealers,
and such broker-dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Shareholder and/or the purchasers
of the Shares for whom such broker-dealers may act as agent or to whom they
sell as principal, or both (which compensation to a particular broker-dealer
might be in excess of customary commissions).
The Selling Shareholder and any broker-dealers who act in connection
with the sale of Shares hereunder may be deemed to be "underwriters" as that
term is defined in the Securities Act, and any commissions received by them
and profit on any resale of the Shares as principal might be deemed to be
underwriting discounts and commissions under the Securities Act. The Company
has agreed to indemnify the Selling Shareholder against certain liabilities,
including liabilities under the Securities Act as underwriters or otherwise.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission are
incorporated in this Prospectus by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994, as amended.
(b) The Company's Current Report on Form 8-K filed with the Commission
on March 6, 1995 with respect to events occurring on March 2, 1995.
(c) The Company's Quarterly Report on Form 10-Q for the three-month
period ended April 1, 1995, as amended.
(d) The Company's Quarterly Report on Form 10-Q for the three-month
period ended July 1, 1995.
(e) The Company's Quarterly Report on Form 10-Q for the three-month
period ended September 30, 1995.
(f) The Company's Current Report on Form 8-K filed with the Commission
on January 9, 1996 with respect to events occurring on January 3,
1996.
(g) 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 amended.
All reports or proxy statements filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering made hereby
shall be deemed to be incorporated by reference 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
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by reference herein shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained herein modifies,
supersedes or replaces that 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 MATTERS
The validity of the Common Stock offered hereby has been passed upon by
Seth H. Hoogasian, Esq., General Counsel of the Company. Mr. Hoogasian owns
or has the right to acquire, pursuant to the exercise of stock options,
shares of the Common Stock of the Company and of certain of the Company's
subsidiaries, the fair market value of which exceeds $50,000.
EXPERTS
The financial statements of the Company incorporated in this Prospectus
and the financial statement schedules incorporated in the Registration
Statement by reference to the Company's Annual Report on Form 10-K for the
year ended December 31, 1994, as amended, have been audited by Arthur
Andersen LLP, independent public accountants, to the extent and for the
periods as indicated in their reports with respect thereto, and are
incorporated herein and therein in reliance upon the authority of said firm
as experts in giving said reports. Reference is made to said report with
respect to the Company's financial statements, which includes an explanatory
fourth paragraph with respect to the change in the method of accounting for
investments in debt and marketable securities in 1994 as discussed in Note 2
to the financial statements.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses incurred by the Company in connection with the issuance and
distribution of the securities being registered are as follows. All amounts
are estimated except the Securities and Exchange Commission registration fee.
Amount
------
Registration fee - Securities and Exchange Commission ...$ 119
Legal fees and expenses ................................. 1,000
Accounting fees and expenses ............................ 5,000
Miscellaneous ........................................... 1,000
Total ..............................................$ 7,119
Item 15. Indemnification of Directors and Officers.
The Delaware General Corporation Law and the Company's Amended and
Restated Certificate of Incorporation and By-Laws limit the monetary
liability of directors to the Company and to its stockholders and provide for
indemnification of the Company's officers and directors for liabilities and
expenses that they may incur in such capacities. In general, officers and
directors are indemnified with respect to actions taken in good faith in a
manner reasonably believed to be in, or not opposed to, the best interests of
the Company, and with respect to any criminal action or proceeding, actions
that the indemnitee had no reasonable cause to believe were unlawful. The
Company also has indemnification agreements with its directors and officers
that provide for the maximum indemnification allowed by law.
The Company maintains officers' and directors' insurance covering
certain liabilities that may be incurred by officers and directors in the
performance of their duties.
The Selling Shareholder is obligated under the Purchase Agreement to
indemnify directors, officers and controlling persons of the Registrant
against certain liabilities, including liabilities under the Securities Act.
Item 16. Exhibits and Financial Statement Schedules.
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:
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(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 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.
(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 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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
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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 hereby 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
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Waltham, Commonwealth of
Massachusetts, on this 11th day of January, 1996.
THERMO ELECTRON CORPORATION
By: George N. Hatsopoulos
------------------------
George N. Hatsopoulos,
President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints John N. Hatsopoulos, Paul F. Kelleher,
Seth H. Hoogasian, Sandra L. Lambert and Jonathan W. Painter, and each of
them, as his true and lawful attorneys-in-fact and agents for the
undersigned, with full power of substitution, for and in the name, place and
stead of the undersigned, to sign and file with the Securities and Exchange
Commission under the Securities Act of 1933 any and all amendments and
exhibits to this Registration Statement and any and all applications and
other documents to be filed with the Securities and Exchange Commission
pertaining to the registration of the securities covered hereby, with full
power and authority to do and perform any and all acts and things whatsoever
requisite and necessary or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
President, Chief Executive Officer,
George N. Hatsopoulos Chairman of the Board and Director January 11, 1996
George N. Hatsopoulos
Executive Vice President
John N. Hatsopoulos and Chief Financial Officer January 11, 1996
John N. Hatsopoulos
Vice President, Finance
Paul F. Kelleher (Chief Accounting Officer) January 11, 1996
Paul F. Kelleher
John M. Albertine Director January 11, 1996
John M. Albertine
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Signature Title Date
--------- ----- ----
Peter O. Crisp Director January 11, 1996
Peter O. Crisp
Elias P. Gyftopoulos Director January 11, 1996
Elias P. Gyftopoulos
Frank Jungers Director January 11, 1996
Frank Jungers
Robert A. McCabe Director January 11, 1996
Robert A. McCabe
Frank E. Morris Director January 11, 1996
Frank E. Morris
Donald E. Noble Director January 11, 1996
Donald E. Noble
Director January , 1996
Hutham S. Olayan
Roger D. Wellington Director January 11, 1996
Roger D. Wellington
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EXHIBIT INDEX
Exhibit Sequential
Number Description of Exhibit Page No.
- ------ ---------------------- --------
1 Stock Purchase Agreement dated as of
December 27, 1995 by and among Thermo
Power Corporation, National Westminster
Bank Plc, New York Branch, and the
Company _____
5 Opinion of Seth H. Hoogasian, Esq. _____
23(a) Consent of Arthur Andersen LLP _____
(b) Consent of Seth H. Hoogasian, Esq.
(contained in Exhibit 5)
24 Power of Attorney (See Signature Page)
13
EXHIBIT 5
Thermo Electron Corporation
81 Wyman Street
PO Box 9046
Waltham, MA 02254-9046
January 11, 1996
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
I am General Counsel to Thermo Electron Corporation, 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-3 (the "Registration Statement"), of
7,312 shares of the Company's Common Stock, par value $1.00 per
share (the "Shares"), which may from time to time be sold by a
shareholder of the Company.
I or a member 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 a member of my
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 investigations of law and have
discussed with the Company's representatives questions of fact
that I or a member of my staff have 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 are
validly issued, fully paid and non-assessable.
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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 Matters" in
the prospectus constituting a part thereof.
Sincerely,
Seth H. Hoogasian
General Counsel
SHH/haf
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Thermo Electron Corporation:
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
report dated February 10, 1995 (except with respect to the
matters discussed in Note 15 as to which the date is July 20,
1995) included in Thermo Electron Corporation's Form 10-K/A for
the year ended December 31, 1994 and to all references to our
firm included in this registration statement.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
January 11, 1996
EXHIBIT 1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made and entered into this
27th day of December, 1995 by and among Thermo Power Corporation,
a corporation organized under the laws of the State of Delaware
(the "Seller"), and National Westminster Bank Plc, New York
Branch, a company organized under the laws of England (the
"Buyer").
In consideration of the premises and the mutual covenants,
agreements and provisions herein contained, the parties hereto
agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SHARES
Section 1.1. Delivery of Outstanding Shares. At the
Closing (as defined in Section 2.1 hereof), and subject to the
terms and conditions contained in this Agreement, the Seller
shall transfer to the Buyer all right, title and interest in and
to 7,312 shares of the common stock, $1.00 par value per share
(the "Shares"), of Thermo Electron Corporation ("Thermo
Electron"), free and clear of all liens, encumbrances, charges,
equities or restrictions.
Section 1.2. Purchase Price. In exchange for the Shares,
and subject to the terms and conditions contained in this
Agreement, the Buyer agrees to pay the Seller the aggregate
amount of $361,944.00 (the "Purchase Price") at the Closing.
ARTICLE 2
CLOSING
Section 2.1. Time and Place of Closing. The closing of the
transactions contemplated by this Agreement (the "Closing") shall
occur at the offices of Thermo Electron Corporation, at 81 Wyman
Street, Waltham, Massachusetts 02254, on December 29, 1995 or on
such other date or time as the Seller and the Buyer may agree.
Section 2.2. Action to be Taken by the Buyer at the
Closing. At the Closing, in addition to the taking of such other
action as may be provided in this Agreement, the Buyer shall
cause the Purchase Price to be paid by wire transfer to such
account or accounts as may be directed by the Seller.
Section 2.3. Action to be Taken by the Seller at the
Closing. At the Closing, in addition to the taking of such other
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action as may be provided in this Agreement, the Seller shall
deliver certificates for the Shares to the Buyer, duly endorsed
to the Buyer or accompanied by duly executed stock powers.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of the Seller.
The Seller represents and warrants to the Buyer that:
(a) Ownership of Shares; Authority to Transfer. The
Shares are not encumbered and are freely transferable by the
Seller. The Seller holds good and marketable title to the Shares
to be transferred to the Buyer hereunder and no third party can
claim any right thereto or make any claim thereon. The transfer
of the Shares to the Buyer pursuant to this Agreement will vest
in the Buyer full title to the Shares, free and clear of all
liens, claims, equities, options, calls, voting trusts,
agreements, commitments and encumbrances whatsoever.
(b) Authority. The Seller has full right, power,
capacity and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby.
This Agreement constitutes the valid and binding obligation of
the Seller enforceable against the Seller in accordance with the
terms hereof. Neither the execution, delivery and performance of
this Agreement nor the consummation of the transactions
contemplated hereby will (i) conflict with or result in a
violation, breach, termination or acceleration of, or default
under (or would result in a violation, breach, termination,
acceleration or default with the giving of notice or passage of
time, or both) any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which the Seller is a party or by
which the Seller or any of its properties or assets may be bound
or affected or (ii) result in the violation of any order, writ,
injunction, decree, statute, rule or regulation applicable to the
Seller or its properties or assets. No consent or approval by,
or notification to or filing with, any court, governmental
authority or any third party is required in connection with the
execution, delivery and performance of this Agreement by the
Seller or the consummation of the transactions contemplated
hereby.
Section 3.2. Representations and Warranties of the Buyer.
(a) Authority. The Buyer represents and warrants to
the Seller that the Buyer has full right, power, capacity and
authority to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby. This Agreement
constitutes the valid and binding obligation of the Buyer
enforceable against the Buyer in accordance with the terms
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hereof. Neither the execution, delivery and performance of this
Agreement nor the consummation of the transactions contemplated
hereby will (i) conflict with or result in a violation, breach,
termination or acceleration of, or default under (or would result
in a violation, breach, termination, acceleration or default with
the giving of notice or passage of time, or both) any of the
terms, conditions or provisions of any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation
to which the Buyer is a party or by which the Buyer or any of its
properties or assets may be bound or affected or (ii) result in
the violation of any order, writ, injunction, decree, statute,
rule or regulation applicable to the Buyer or its properties or
assets. No consent or approval by, or notification to or filing
with, any court, governmental authority or any third party is
required in connection with the execution, delivery and
performance of this Agreement by the Buyer or the consummation of
the transactions contemplated hereby.
(b) Reliance on Publicly Available Information. The
Buyer has, in connection with its decision to purchase the
Shares, relied solely upon information contained, or incorporated
by reference, in documents filed by Thermo Electron with the
Securities and Exchange Commission (the "Commission") pursuant to
the Securities Act of 1933, as amended (the "Securities Act") or
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the Buyer has not relied in any manner on any other
statements of the Seller or of Thermo Electron other than the
representations and warranties contained herein.
(c) Accredited Investor. The Buyer is an "accredited
investor" within the meaning of Rule 501 of Regulation D
promulgated under the Securities Act.
ARTICLE 4
RESALE RESTRICTIONS; REGISTRATION RIGHTS
Section 4.1. Resale Restrictions. The Buyer acknowledges
that the Shares have not been registered under the Securities Act
and that the Shares, in the hands of the Buyer, will constitute
restricted securities. Accordingly, until such time as the
Registration Statement (as defined below) has been declared
effective by the Commission, the Buyer will not, directly or
indirectly, voluntarily offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Shares except
in compliance with the Securities Act and the rules and
regulations promulgated thereunder and in compliance with any
applicable state securities laws, and a legal opinion
satisfactory to Thermo Electron is given to that effect.
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Section 4.2. Registration Requirements.
(a) As soon as practicable after the Closing, Thermo
Electron will file a registration statement (the "Registration
Statement") under the Securities Act with respect to the resale
of the Shares by the Buyer, and Thermo Electron will use its best
efforts to cause the Registration Statement to become effective
as soon as practicable. The Buyer undertakes in connection
therewith to execute and deliver in a timely manner all such
information and materials and take all such action as may be
required in order to permit Thermo Electron to comply with all
applicable legal requirements and to obtain the acceleration of
the effective date of the Registration Statement.
(b) Thermo Electron will use its best efforts to
prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used
in connection therewith as may be necessary to keep the
Registration Statement effective until all the Shares registered
thereunder have been sold pursuant thereto or until, by reason of
Rule 144(k) of the Commission under the Securities Act or any
other rule of similar effect, the Shares are no longer required
to be registered for the sale thereof by the Buyer. The Buyer
acknowledges that there may be times when Thermo Electron must
suspend the use of the prospectus forming a part of the
Registration Statement until such time as an amendment to the
Registration Statement has been filed by Thermo Electron and
declared effective by the Commission, or until such time as
Thermo Electron has filed an appropriate report with the
Commission pursuant to the Exchange Act. The Buyer hereby
covenants that it will not sell any Shares pursuant to said
prospectus during the period commencing at the time at which
Thermo Electron gives the Buyer notice of the suspension of the
use of said prospectus and ending at the time Thermo Electron
gives the Buyer notice that the Buyer may thereafter effect sales
pursuant to said prospectus, and Thermo Electron's
indemnification obligations in Section 4.4 will not apply to
sales made in violation of this provision.
Section 4.3. Registration Procedures.
(a) Thermo Electron will furnish to the Buyer with
respect to the Shares registered under the Registration Statement
(and to each underwriter, if any, of such Shares) such number of
copies of prospectuses and preliminary prospectuses in conformity
with the requirements of the Securities Act and such other
documents as the Buyer may reasonably request, in order to
facilitate the public sale or other disposition of all or any of
the Shares by the Buyer. The Buyer hereby represents, warrants
and covenants that it will comply with the applicable provisions
of the Securities Act and of such other securities or blue sky
laws as may be applicable in connection with any use of such
prospectuses or preliminary prospectuses.
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(b) Thermo Electron will file documents required
of Thermo Electron for normal blue sky clearance in a reasonable
number of states specified in writing by the Buyer, provided,
however, that Thermo Electron shall not be required to qualify to
do business or consent to service of process in any jurisdiction
in which it is not now so qualified or has not so consented.
(c) Thermo Electron will bear all expenses in
connection with the procedures in paragraphs (a) through (c) of
this Section 4.3 and the registration of the Shares pursuant to
the Registration Statement, other than fees and expenses, if any,
of counsel or other advisers to the Buyer.
(d) Thermo Electron understands that the Buyer
disclaims being an underwriter with respect to the Shares, but
the Buyer being deemed an underwriter shall not relieve Thermo
Electron of any obligations it has hereunder.
Section 4.4. Indemnification.
(a) For the purpose of this Section 4.4:
(i) the term "Selling Shareholder" shall mean the
Buyer and any person controlling the Buyer within the
meaning of Section 15 of the Securities Act;
(ii) the term "Registration Statement" shall mean
any preliminary prospectus, final prospectus, exhibit,
supplement or amendment included in or relating to the
Registration Statement referred to in Section 4.2; and
(iii) the term "untrue statement" shall mean
any untrue statement or alleged untrue statement of a
material fact in the Registration Statement, or any omission
or alleged omission to state in the Registration Statement a
material fact required to be stated therein or necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Thermo Electron agrees to indemnify and hold
harmless each Selling Shareholder from and against any losses,
claims, damages or liabilities to which such Selling Shareholder
may become subject (under the Securities Act or otherwise)
insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are
based upon, any untrue statement contained in the Registration
Statement on the effective date thereof, or arise out of any
failure by Thermo Electron to fulfill any undertaking included in
the Registration Statement, and Thermo Electron will reimburse
such Selling Shareholder for any legal or other expenses
reasonably incurred in investigating, defending or preparing to
defend any such action, proceeding or claim, provided, however,
that Thermo Electron shall not be liable in any such case to the
extent that such loss, claim, damage or liability arises out of,
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or is based upon, an untrue statement made in such Registration
Statement in reliance upon and in conformity with written
information furnished to Thermo Electron by or on behalf of such
Selling Shareholder specifically for use in preparation of the
Registration Statement, or the failure of such Selling
Shareholder to comply with the covenants and agreements contained
herein respecting sale of the Shares.
(c) The Buyer agrees to indemnify and hold harmless
Thermo Electron (and each person, if any, who controls Thermo
Electron within the meaning of Section 15 of the Securities Act,
each officer of Thermo Electron who signs the Registration
Statement and each director of Thermo Electron) from and against
any losses, claims, damages or liabilities to which Thermo
Electron (or any such officer, director or controlling person)
may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are
based upon, any failure of the Buyer to comply with the covenants
and agreements contained herein, or any untrue statement
contained in the Registration Statement on the effective date
thereof if such untrue statement was made in reliance upon and in
conformity with written information furnished by or on behalf of
the Buyer specifically for use in preparation of the Registration
Statement, and the Buyer will reimburse Thermo Electron (or such
officer, director or controlling person), as the case may be, for
any legal or other expense reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or
claim.
(d) Promptly after receipt by any indemnified person
of a notice of a claim or the beginning of any action in respect
of which indemnity is to be sought against an indemnifying person
pursuant to this Section 4.4, such indemnified person shall
notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought
against an indemnified person and such indemnifying person shall
have been notified thereof, such indemnifying person shall be
entitled to participate therein, and, to the extent it shall
wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be
liable to such indemnified person for any legal expenses
subsequently incurred by such indemnified person in connection
with the defense thereof, provided, however, that if there exists
or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified
person, for the same counsel to represent both the indemnified
person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its
own counsel at the expense of such indemnifying person; provided,
however, that no indemnifying person shall be responsible for the
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fees and expenses of more than one separate counsel for all
indemnified parties.
Section 4.5. Termination of Conditions and Obligations.
The conditions precedent imposed by this Article 4 upon the
transferability of the Shares shall cease and terminate as to any
particular number of the Shares when such Shares shall have been
effectively registered under the Securities Act and sold or
otherwise disposed of in accordance with the intended method of
disposition set forth in the Registration Statement covering such
Shares or at such time as an opinion of counsel satisfactory to
Thermo Electron shall have been rendered to the effect that such
conditions are not necessary in order to comply with the
Securities Act.
ARTICLE 5
GENERAL
Section 5.1. Notices. All notices, requests, demands,
consents and other communications which are required or permitted
hereunder shall be in writing, and shall be deemed given when
actually received or if earlier, one day after deposit with a
nationally recognized air courier or express mail, charges
prepaid or three days after deposit in the U.S. mail by certified
mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Seller or to Thermo Electron:
Thermo Electron Corporation
81 Wyman Street
Post Office Box 9046
Waltham, Massachusetts 02254-9046
Attention: Treasurer
With a copy to:
Thermo Electron Corporation
81 Wyman Street
Post Office Box 9046
Waltham, Massachusetts 02254-9046
Attention: General Counsel
If to the Buyer:
National Westminster Bank Plc,
New York Branch
175 Water Street
New York, New York 10038-4924
Attention: ________________
With a copy to:
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National Westminster Bank Plc,
New York Branch
175 Water Street
New York, New York 10038-4924
Attention: ________________
or to such other address as any party hereto may designate in
writing to the other parties, specifying a change of address for
the purpose of this Agreement.
Section 5.2. Survival and Materiality of Representations.
Each of the representations, warranties and agreements made by
the parties hereto shall be deemed material and shall survive the
Closing and the consummation of the transaction contemplated
hereby.
Section 5.3. Entire Agreement. This Agreement supersedes
any and all oral or written agreements or understandings
heretofore made relating to the subject matter hereof and
constitutes the entire agreement of the parties relating to the
subject matter hereof.
Section 5.4. Parties in Interest. All agreements,
representations and warranties contained in this Agreement made
by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the parties hereto, and their respective
successors, assigns, heirs, executors, administrators and
personal representatives, whether so expressed or not.
Section 5.5. Headings. The headings in this Agreement are
inserted for convenience of reference only and shall not be a
part of or control or affect the meaning hereof.
Section 5.6. Severability. If any provision of this
Agreement shall be declared void or unenforceable by any judicial
or administrative authority, the validity of any other provision
shall not be affected thereby.
Section 5.7. Counterparts. This Agreement may be executed
in several counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
Section 5.8. Governing Law. This Agreement shall be
governed by the laws of the Commonwealth of Massachusetts
applicable to agreements made and to be performed wholly within
such jurisdiction, without regard to the conflicts of laws
provisions thereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the date first written above.
THERMO POWER CORPORATION NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By: /s/ Jonathan W. Painter By: /s/ Anne Kavanagh
Title: Treasurer Title: President
For purposes of Article 4 only:
THERMO ELECTRON CORPORATION
By: /s/ Jonathan W. Painter
Title: Treasurer
AA960050053
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