As filed with the Securities and Exchange Commission on December 12, 1996
Registration No. 333-_______
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 0-2209186
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
81 Wyman Street
P.O. Box 9046
Waltham, MA 02254-9046
(617) 622-1000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Sandra L. Lambert
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 Edwin L. Miller, Jr., Esquire
General Counsel Testa, Hurwitz & Thibeault
Thermo Electron Corporation Exchange Place
81 Wyman Street 125 High Street
P.O. Box 9046 High Street Tower
Waltham, Massachusetts 02254-9046 Boston, Massachusetts 02109
----------------------
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the Registration Statement has become effective.
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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 ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of each classAmount to be maximum maximum Amount of
of securities to beRegistered offering aggregate registration
registered price per offering fee
share (1) price (1)
Common Stock, 5,000,000 $34.94 $174,700,000 $52,939.40
$1.00 par value... shs.
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 based upon the
average of the high and low prices of the Common Stock on the New York
Stock Exchange on December 6, 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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P R O S P E C T U S 5,000,000 SHARES
THERMO ELECTRON CORPORATION
Common Stock
PAR VALUE $1.00 Per Share
____________________
This Prospectus relates to the delivery of up to 5,000,000 shares
(the "Shares") of common stock, par value $1.00 per share (the "Common
Stock"), of Thermo Electron Corporation (the "Company") by Thermo
Instrument Systems Inc. ("Thermo Instrument"), an 81.3%-owned subsidiary of
the Company, to holders of Thermo Instrument's 4 1/2% Senior Convertible
Debentures due 2003 (the "Debentures"), upon conversion of the Debentures
and upon the exercise of the Settlement Option (as defined below) by Thermo
Instrument. The Debentures are convertible, prior to redemption or
maturity, into shares of Thermo Instrument common stock at a conversion
price of $43.07 per share, subject to adjustment under certain conditions
and subject to Thermo Instrument's option to deliver, in lieu of all or a
portion of the shares of Thermo Instrument common stock into which the
Debentures are convertible, Shares having a Thermo Electron Market Price
(as defined under "Plan of Distribution") equal to the Market Price (as
defined under "Plan of Distribution") of such shares of Thermo Instrument
common stock (the "Settlement Option"). The Debentures are guaranteed by
the Company.
The Shares will be sold by the Company to Thermo Instrument pursuant
to a plan adopted by the Board of Directors of the Company (the "Plan").
Under the Plan, Thermo Instrument may purchase for cash from time to time
at its election Shares at a price per share equal to the average of the
closing sale prices of the Common Stock on the New York Stock Exchange on
the five trading days preceding the date upon which Thermo Instrument
notifies the Company of its intent to purchase Shares. Thermo Instrument
may only purchase Shares for purposes of delivery pursuant to the
Settlement Option.
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 Thermo Instrument 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 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.
______________________
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 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.
____________________________
December 12, 1996
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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"). Reports, proxy statements and
other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities
maintained by the Commission at Room 104, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549 or at its regional
offices located at 500 West Madison Street, Chicago, Illinois
60661, and Seven World Trade Center, 13th Floor, New York, New
York 10048. Copies of such material can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. The Commission
also maintains a Web site that contains reports, proxy and
information statements and other information regarding
registrants that file electronically with the Commission,
including the Company. The address of such site is
http://www.sec.gov. The Common Stock of the Company is listed on
the New York Stock Exchange (the "NYSE"), and the reports, proxy
statements and other information filed by the Company with the
Commission can be inspected at the office of the NYSE, 20 Broad
Street, New York, New York 10005.
This Prospectus, which constitutes part of a registration
statement (herein, together with all exhibits thereto, referred
to as the "Registration Statement") filed by the Company with the
Commission under the Securities Act of 1933 (the "Securities
Act"), omits certain of the information contained in the
Registration Statement. Reference is hereby made to the
Registration Statement for further information with respect to
the Company and the securities offered hereby.
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.
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).
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TABLE OF CONTENTS
Available Information ......................................2
The Company ................................................3
Plan of Distribution .......................................3
Selling Shareholders .......................................4
Incorporation of Documents by Reference ....................4
Legal Opinion ..............................................5
Experts ....................................................5
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THE COMPANY
The Company develops, manufactures and markets analytical
and environmental-monitoring instruments, alternative-energy
systems, industrial process equipment, biomedical products and
various devices based on advanced technologies. The Company also
provides metallurgical heat-treating, environmental engineering
and analytical laboratory services. The Company conducts 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, 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).
PLAN OF DISTRIBUTION
The Shares will be delivered by Thermo Instrument to holders
of the Debentures upon conversion of the Debentures and upon the
exercise of the Settlement Option by Thermo Instrument. The
Debentures are convertible, prior to redemption or maturity, into
shares of Thermo Instrument common stock at a conversion price of
$43.07 per share, subject to adjustment under certain conditions
and subject to Thermo Instrument's option to deliver, in lieu of
all or a portion of the shares of Thermo Instrument common stock
into which the Debentures are convertible, Shares having a Thermo
Electron Market Price (as defined below) equal to the Market
Price (as defined below) of such shares of Thermo Instrument
common stock.
The Shares will be sold by the Company to Thermo Instrument
pursuant to a plan adopted by the Board of Directors of the
Company. Under the Plan, Thermo Instrument may purchase for cash
from time to time at its election Shares at a price per share
equal to the average of the closing sale prices of the Common
Stock on the New York Stock Exchange on the five trading days
preceding the date upon which Thermo Instrument notifies the
Company of its intent to purchase Shares. Thermo Instrument may
only purchase Shares for purposes of delivery pursuant to the
Settlement Option.
"Market Price" means either (a) if the conversion date is
(i) a date prior to the date on which Thermo Instrument gives
notice of redemption of all (but not less than all) of the
Debentures (the "Redemption Notice Date") or (ii) a date on or
after the Redemption Notice Date and Thermo Instrument has not
specified in its redemption notice that it will exercise the
Settlement Option with respect to all or a portion of the shares
of Thermo Instrument common stock deliverable upon conversion of
Debentures presented for conversion on or after the Redemption
Notice Date, the closing sale price of the Thermo Instrument
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common stock on such conversion date, or if the date is not a
Stock Trading Day (as defined below), on the Stock Trading Day
next preceding such date, as reported on the principal national
or regional United States securities exchange on which such
shares are traded or, if the Thermo Instrument common stock is
not listed or admitted to trading on a United States national or
regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System
("NASDAQ") or by the National Quotation Bureau Incorporated, or
(b) if the conversion date occurs on or after the Redemption
Notice Date and Thermo Instrument has specified in its redemption
notice that it will exercise the Settlement Option with respect
to all or a portion of the shares of Thermo Instrument common
stock deliverable upon conversion of Debentures presented for
conversion on or after the Redemption Notice Date, the Weighted
Average Price of the Thermo Instrument common stock over all of
the Stock Trading Days falling within the 20-day period
commencing on the Redemption Notice Date. The "Weighted Average
Price" of a share of common stock during any period means the
weighted average per share sale price for all reported sales of
such common stock on the Stock Trading Days included within such
period (or, if the information necessary to calculate such
weighted average per share sale price is not available, the
average of the high and low sale prices or, if only one sale is
reported, such sale price) as reported in composite transactions
on the principal national or regional United States securities
exchange on which such shares are traded or, if such common stock
is not listed or admitted to trading on a United States national
or regional securities exchange, as reported by NASDAQ or by the
National Quotation Bureau Incorporated. In the absence of such
quotations, Thermo Instrument shall be entitled to determine the
Weighted Average Price on the basis of such quotations as it
considers appropriate. A "Stock Trading Day" means each day on
which the securities exchange or quotation system which is used
to determine the Weighted Average Price is open for trading or
quotation and on which at least one trade of the common stock has
occurred.
"Thermo Electron Market Price" means either (a) if the
conversion date is (i) a date prior to the Redemption Notice Date
or (ii) a date on or after the Redemption Notice Date and Thermo
Instrument has not specified in its redemption notice that it
will exercise the Settlement Option with respect to all or a
portion of the shares of Thermo Instrument common stock
deliverable upon conversion of Debentures presented for
conversion on or after the Redemption Notice Date, the closing
sale price of the Common Stock on such conversion date, or if the
date is not a Stock Trading Day, on the Stock Trading Day next
preceding such date, as reported on the principal national or
regional securities exchange on which such shares are traded or,
if the Common Stock is not listed or admitted to trading on a
United States national or regional securities exchange, as
reported by NASDAQ or by the National Quotation Bureau
Incorporated, or (b) if the conversion date occurs on or after
the Redemption Notice Date and Thermo Instrument has specified in
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its redemption notice that it will exercise the Settlement Option
with respect to all or a portion of the shares of Thermo
Instrument common stock deliverable upon conversion of Debentures
presented for conversion on or after the Redemption Notice Date,
the Weighted Average Price of the Common Stock over all of the
Stock Trading Days falling within the 20-day period commencing on
the Redemption Notice Date.
SELLING SHAREHOLDERS
As of September 28, 1996, the Company owned 81.3% of the
outstanding common stock of Thermo Instrument, the selling
shareholder. Certain of the directors and officers of the
Company are also directors and officers of Thermo Instrument.
Thermo Instrument owns no shares of the Common Stock of the
Company. The Company has agreed to issue up to 5,000,000 shares
of Common Stock to Thermo Instrument solely for issuance by
Thermo Instrument to holders of the Debentures upon exercise by
Thermo Instrument of the Settlement Option. Therefore, any
Shares acquired by Thermo Instrument pursuant to the Plan will
promptly be delivered to holders of Debentures, and will not be
held by Thermo Instrument other than pending such delivery.
INCORPORATION OF 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 fiscal
year ended December 30, 1995, as amended on Form 10-K/A
dated September 6, 1996.
(2) The Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 30, 1996, as amended on Form
10-Q/A dated September 6, 1996.
(3) The Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended June 29, 1996, as amended on Form
10-Q/A dated September 6, 1996.
(4) The Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 28, 1996.
(5) The Company's Current Report on Form 8-K dated January
3, 1996.
(6) The Company's Current Report on Form 8-K dated January
19, 1996.
(7) The Company's Current Report on Form 8-K dated April
16, 1996.
(8) The Company's Current Report on Form 8-K dated October
24, 1996, as amended on Form 8-K/A dated November 12,
1996.
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(9) The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-A, as
amended.
All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the termination of this offering shall be
deemed to be incorporated by reference herein and to be part
hereof from the date of the filing of such reports and documents.
Statements in documents incorporated by reference herein
shall be deemed modified by statements herein. Statements so
modified shall constitute part of this Prospectus only as so
modified.
LEGAL OPINION
Certain legal matters relating to the Shares of Common Stock
have been passed upon for the Company by Seth H. Hoogasian,
General Counsel of the Company. Mr. Hoogasian owns or has the
right to acquire 115,927 shares of Common Stock and 180,287
shares of the common stock of the Company's subsidiaries.
EXPERTS
The financial statements and schedule of the Company for the
year ended December 30, 1995, incorporated in this Registration
Statement by reference to the Company's Annual Report on Form
10-K/A for the year ended December 30, 1995 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 in reliance upon the
authority of said firm as experts in giving said reports.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses (other than the underwriting discount) incurred
by the Company in connection with the issuance and distribution
of the securities being registered (including the securities
which may be issued pursuant to an over-allotment option) are as
follows:
Amount*
-------
Securities and Exchange Commission Registration Fee $ 52,939
New York Stock Exchange listing fee ................ 25,650
Legal fees and expenses ............................ 5,000
Accounting fees and expenses ....................... 5,000
Miscellaneous ...................................... 1,411
Total .........................................$ 90,000
_______________
* All amounts are estimated except the Securities and
Exchange Commission fee and the New York Stock Exchange
listing fee.
Item 15. Indemnification of Directors and Officers.
The Delaware General Corporation Law and the Company's
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.
Thermo Electron Corporation has an insurance policy which
insures the directors and officers of Thermo Electron and its
subsidiaries against certain liabilities which might be incurred
in connection with the performance of their duties.
Item 16. Exhibits.
See the Exhibit Index included immediately preceding the
exhibits to this Registration Statement.
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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 thi
sregistration 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 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
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 (and, where applicable, each filing of
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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 of expenses incurred or paid by a director,
officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Waltham, Commonwealth of Massachusetts, on the 12th
day of December, 1996.
THERMO ELECTRON CORPORATION
By: /s/George N. Hatsopoulos
George N. Hatsopoulos
Chairman of the Board,
President and Chief
Executive Officer
POWER OF ATTORNEY
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
/s/ George N. Hatsopoulos Chairman of the December 12, 1996
-------------------------
George N. Hatsopoulos Board, President,
Chief Executive
OFficer and
Director
/s/ John N. Hatsopoulos Executive Vice December 12, 1996
-----------------------
John N. Hatsopoulos President and Chief
Financial Officer
(principal finance
officer)
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/s/ Paul F. Kelleher Vice President, December 12, 1996
--------------------
Paul F. Kelleher Finance (principal
accounting officer)
/s/ John M. Albertine Director December 12, 1996
---------------------
John M. Albertine
/s/ Peter O. Crisp Director December 12, 1996
------------------
Peter O. Crisp
/s/ Elias P. Gyftopoulos Director December 12, 1996
------------------------
Elias P. Gyftopoulos
/s/ Frank Jungers Director December 12, 1996
-----------------
Frank Junger
/s/ Robert A. McCabe Director December 12, 1996
--------------------
Robert A. McCabe
/s/ Frank E. Morris Director December 12, 1996
-------------------
Frank E. Morris
/s/ Donald E. Noble Director December 12, 1996
-------------------
Donald E. Noble
/s/ Huthan S. Olayan Director December 12, 1996
--------------------
Hutham S. Olayan
/s/ Roger D. Wellington Director December 12, 1996
-----------------------
Roger D. Wellington
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EXHIBIT INDEX
Exhibit No. Description of Exhibit
5 Opinion of Seth H. Hoogasian, Esq.
23.1 Consent of Arthur Andersen LLP
99 Stock Option Agreement Between
Thermo Instrument Systems Inc.
and Thermo Electron Corporation
EXHIBIT 5
THERMO ELECTRON CORPORATION
81 Wyman Street
Waltham, MA 02254-9046
(617) 622-1000
December 12, 1996
VIA EDGAR TRANSMISSION
----------------------
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-3
Relating to 5,000,000 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 5,000,000 shares of the Company's Common
Stock, par value $1.00 per share (the "Shares"), which may from
time to time be delivered by Thermo Instrument Systems
Inc.("Thermo Instrument"), the Company's 81% owned subsidiary, to
holders of the 4 1/2% Senior Convertible Debentures due 2003
issued by Thermo Instrument(the "Debentures")upon conversion of
the Debentures. Thermo Electron Corporation has agreed to sell
the Shares to Thermo Instrument solely for purposes of allowing
Thermo Instrument to deliver the Shares upon such conversions.
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 the 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.
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Page 2
Based upon and subject to the foregoing, I am of the opinion
that the Shares have been duly authorized by the Company and when
sold by the Company to Thermo Instrument pursuant to the terms of
the Agreement dated as of October 10, 1996 between the Company
and Thermo Instrument and filed as Exhibit 99 to 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,
Seth H. Hoogasian
General Counsel
ARTHUR ANDERSEN LLP
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form
S-3 of Thermo Electron Corporation of our reports dated February
15, 1996 (except with respect to the matters discussed in Note 16
as to which the date is June 28, 1996) included in Thermo
Electron Corporation's annual report on Form 10-K for the fiscal
year ended December 30, 1995 and to all references to our Firm
included in this Registration Statement.
ARTHUR ANDERSEN LLP
/s/Arthur Andersen LLP
Boston, Massachusetts
Exhibit 99
AGREEMENT
This Agreement is made as of the 10th day of October 1996
between Thermo Electron Corporation, a Delaware corporation (the
"Company"), and Thermo Instrument Systems Inc., a Delaware
corporation ("THI").
RECITALS
The Company currently files consolidated U.S. federal tax
returns with THI. The Company may continue to consolidate U.S.
federal tax returns with THI provided that the Company
continuously maintains ownership of at least 80% of THI's
outstanding Common Stock. If the Company owns at any time less
than 80% of THI's outstanding Common Stock, THI would be required
to file a separate U.S. federal tax return. This deconsolidation
could have a significant adverse impact on the Company.
THI has proposed to issue up to $200 million principal
amount of senior convertible debentures (the "Debentures"), to be
guaranteed by the Company. The Board of Directors believes that
the issuance of the Debentures by THI is in the best interests of
the Company and THI. However, conversion of these debentures
into THI Common Stock would increase the number of shares of THI
Common Stock outstanding, thereby diluting the Company's
ownership of THI, potentially below 80%. To allow THI to issue
the Debentures, while protecting the ability of the Company and
THI to consolidate for U.S. federal tax purposes, the Board of
Directors of the Company believes that it is in the best interest
of the Company and THI to incorporate in the Debentures an option
that permits the delivery by THI of shares of the Company's
Common Stock upon conversion of Debentures, in lieu of shares of
THI Common Stock otherwise issuable upon such conversion (the
"Settlement Option"). To facilitate THI's exercise of such
option, the Board of Directors of the Company has authorized the
issuance of up to 5,000,000 shares of the Company's Common Stock
(the "Shares").
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Notice from THI. The Company shall sell Shares to THI
---------------
on any one or more occasions if THI determines that the purchase
of such Shares is needed to allow THI to exercise the Settlement
Option. THI may offer to purchase Shares by delivering a notice
to the Chief Financial Officer and the Secretary of the Company,
specifying the number of Shares that THI desires to purchase.
The offer to purchase Shares by THI shall be irrevocable and
shall be deemed accepted by the Company upon its receipt thereof.
The date upon which the Company receives such notice is referred
to herein as the "Notice Date."
PAGE
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2. Purchase Price. The purchase price for any Shares sold
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under this Agreement shall equal the average of the closing
prices for the Company's Common Stock on the New York Stock
Exchange for the five trading days immediately preceding the
Notice Date. On the Notice Date, THI shall deliver the purchase
price for the Shares to the Company by check or other method
acceptable to the Company. The Company shall deliver to THI a
certificate representing the purchased Shares in such name or
names as THI shall request as soon as practicable following the
Notice Date.
3. Listing. No Shares may be issued or sold under this
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Agreement unless and until such Shares have been accepted for
listing on the New York Stock Exchange. The Company shall use
its best efforts to effect such listing prior to January 1, 1997.
4. Registration. The delivery of the Shares to holders of
------------
Debentures upon THI's exercise of the Settlement Option shall be
registered by the Company under the Securities Act of 1933 (the
"Act"). The Company shall use its best efforts to cause such
registration to become effective prior to January 1, 1997. The
Company shall indemnify and hold harmless THI and its directors,
officers and employees against all losses, claims or damages to
which they may become subject insofar as such losses, claims or
damages arise out of or are based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the
registration statement pertaining to the Shares or (ii) any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, unless such statements or omissions
relate to THI.
5. Adjustment. If, as a result of any stock dividend,
----------
stock split, reverse stock split or other similar transaction,
the number of outstanding shares of Company Common Stock is
increased or decreased, then an appropriate and proportionate
adjustment shall be made in the number of Shares subject to this
Agreement.
6. Term. This Agreement shall be effective until the
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sooner to occur of (i) October 15, 2003 or (ii) five business
days following the date upon which the Debentures are redeemed by
the Company.
7. Amendment. This Agreement may be amended only by the
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written agreement of the Company and THI.
THERMO ELECTRON CORPORATION THERMO INSTRUMENT SYSTEMS INC.
By: /s/ John N. Hatsopoulos By: /s/ Jonathan W. Painter
----------------------- -----------------------------
Name: John N. Hatsopoulos Name: Jonathan W. Painter
