UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.3)
KFx, Inc.
(Name of Issuer)
Common Stock, par value $.001 per share
(Title of Class of Securities)
48245L 10 7
(CUSIP Number)
Seth H. Hoogasian, Esq. Thermo Electron Corporation
General Counsel 81 Wyman Street
(781) 622-1000 Waltham, MA 02454-9046
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
June 14, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
<PAGE>
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Thermo Electron Corporation
IRS No. 04-2209186
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A
GROUP*
(a) [ ]
(b) [ x ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
[ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
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NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON 4,293,600
WITH
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8 SHARED VOTING POWER
0
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9 SOLE DISPOSITIVE POWER
4,293,600
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10 SHARED DISPOSITIVE POWER
0
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<PAGE>
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
4,293,600
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11
EXCLUDES CERTAIN SHARES* [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
17.9%
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14 TYPE OF REPORTING PERSON *
CO
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<PAGE>
Thermo Electron Corporation hereby amends its statement on Schedule 13D
relating to the shares (the "Shares") of common stock, par value $.001 per
share, of KFx, Inc. (the "Issuer"), as set forth below.
Item 1. Security and Issuer.
Item 1 is hereby amended and restated in its entirety as follows:
This Schedule 13D relates to the shares of common stock, $.001 par value
per share, of the Issuer. The Issuer's principal executive offices are located
at 1999 Broadway, Suite 3200, Denver, Colorado 80202.
Item 2. Identity and Background
Item 2 is hereby amended and restated in its entirety as follows:
This Amendment is being filed by Thermo Electron Corporation (the
"Reporting Person"), pursuant to Rule 13d-2, to reflect a change in the
information previously reported under Items 4 and 6 of this Schedule 13D. The
Reporting Person holds the Shares of the Issuer that are the subject of this
Amendment through one or more controlled subsidiaries. As of the date of this
Amendment, 4,251,000 Shares were held by Thermo Ecotek Corporation ("Ecotek"), a
majority-owned subsidiary of the Reporting Person.
The Reporting Person develops, manufactures and markets environmental,
analytical and process control instruments, cogeneration and alternative-energy
power plants, low-emission combustion systems, paper and waste-recycling
equipment, and biomedical products. The Reporting Person also provides a range
of services including environmental remediation and consulting, laboratory
analysis, and metals fabrication and processing, as well as research and product
development in unconventional imaging, adaptive optics, and direct energy
conversion.
The principal business address and principal office address of the
Reporting Person, a Delaware corporation, is 81 Wyman Street, Waltham,
Massachusetts 02454-9046.
Appendix A attached to this Amendment sets forth with respect to each
executive officer and director of the Reporting Person his or her (a) name; (b)
residence or business address; (c) present principal occupation or employment
and the name, principal business and address of any corporation or other
organization in which such employment is conducted; and (d) citizenship. To the
knowledge of the Reporting Person, there is no person who may be deemed to be a
controlling person of the Reporting Person.
During the last five years, neither the Reporting Person nor (to the
knowledge of the Reporting Person) any executive officer or director of the
Reporting Person has been convicted in a criminal proceeding (excluding traffic
violations and similar misdemeanors).
During the last five years, neither the Reporting Person nor (to the
knowledge of the Reporting Person) any executive officer or director of the
Reporting Person has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction which resulted in a judgment,
decree or final order (i) enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or (ii)
finding a violation with respect to such laws.
<PAGE>
Item 3. Source and Amount of Funds or Other Consideration.
Any Shares of the Issuer purchased by the Reporting Person would be
purchased using the Reporting Person's working capital.
Item 4. Purpose of Transaction
Item 4 is hereby amended and restated in its entirety as follows:
On June 14, 1999, Ecotek entered into an agreement (the "Agreement") with
the Issuer in which the Issuer was authorized by Ecotek to find a buyer
("Buyer") for all of the Shares of the Issuer held by Ecotek at a price of $2.00
per share. The Issuer agreed in the Agreement to file a resale registration
statement covering the offer and sale by Ecotek of its Shares to a Buyer,
pursuant to the terms of the existing Registration Rights Agreement, dated as of
August 18, 1995, between the Issuer and Ecotek (the "Registration Rights
Agreement"). Any such sales will occur only after the effectiveness of such
registration statement.
Upon the closing of a sale of the Shares owned by Ecotek to a Buyer,
Ecotek would cancel its existing Warrants to purchase additional Shares, which
Warrants would, if exercised, have resulted in Ecotek owning up to 51% of the
Issuer's common stock. In addition, upon such closing, the Registration Rights
Agreement and the Stock Purchase Agreement between the Issuer and Ecotek dated
as of August 18, 1995 would be terminated. The Stockholders' Voting and Co-Sale
Agreement among Ecotek, the Issuer and certain stockholders of the Issuer, dated
as of August 18, 1995, would terminate by its terms if the Warrants are
canceled.
The Agreement also provides that Ecotek may find a Buyer for all of its
Shares on its own, without involvement of the Issuer. In the event of such a
sale, Ecotek would cancel the Warrants and the Registration Rights Agreement and
the Stock Purchase Agreement would be terminated. In addition, the Stockholders'
Voting and Co-Sale Agreement would terminate by its terms.
The Reporting Person may sell its Shares without the assistance of the
Issuer. Conditions relevant to the timing of such sales of the Shares by the
Reporting Person without the involvement of the Issuer may include the market
performance of the Issuer's common stock, then current market and economic
conditions, and the Issuer's then current or prospective financial performance.
Except as set forth in this Item 4 and in Item 6, neither the Reporting
Person nor, to the Reporting Person's knowledge, any of the executive officers
or directors of the Reporting Person has any current plans or proposals which
relate to or would result in any of the actions specified in clauses (a) through
(j) of Item 4 of Schedule 13D, although the Reporting Person and such other
persons do not rule out the possibility of effecting or seeking to effect any
such actions in the future.
<PAGE>
Item 5. Interest in Securities of the Issuer.
Items 5 (a) - (c) are hereby amended and restated in their entirety as
follows:
(a) The Reporting Person beneficially owns 42,600 Shares, or approximately
0.2% of the outstanding Shares, owned directly by the Reporting Person and
4,251,000 Shares, or approximately 17.7% of the outstanding Shares, owned by
Ecotek. To the knowledge of the Reporting Person, the executive officers and
directors of the Reporting Person own no Shares.
(b) The Reporting Person has the sole power to vote and dispose of the
Shares owned by it.
(c) The Reporting Person has effected no transactions with respect to the
Shares during the past 60 days. To the knowledge of the Reporting Person, the
executive officers and directors of the Reporting Person have effected no
transactions in the Shares during the past 60 days.
Item 6. Contracts, Arrangements, Understandings or Relationships with respect to
Securities of the Issuer.
Item 6 is hereby amended and restated in its entirety as follows:
As set forth in Item 4 hereof, Ecotek has entered into an Agreement
authorizing the Issuer to find a Buyer for its Shares. The authorization under
the Agreement expires 180 days from the date of the Agreement (the "Termination
Date"). The Termination Date may be extended by the Issuer for up to 60 days,
provided that the minimum price to be paid by the Buyer would increase to $2.30
per Share during any such extension period.
Item 7. Material to be Filed as Exhibits.
The following document is hereby added as an exhibit:
(i) Agreement between the Issuer and Ecotek, dated June 14, 1999.
<PAGE>
Signature
After reasonable inquiry and to the best of its knowledge and belief the
Reporting Person certifies that the information set forth in this statement is
true, complete and correct.
Date: June 18, 1999 THERMO ELECTRON CORPORATION
By: /s/ Kenneth J.Apicerno
-----------------------------------
Kenneth J. Apicerno
Treasurer
<PAGE>
Appendix A is hereby amended and restated in its entirety as follows:
APPENDIX A
The following individuals are executive officers or directors of Thermo
Electron Corporation ("Thermo Electron"). Unless otherwise noted, all such
individuals are citizens of the United States. Unless otherwise noted, the
business address of each executive officer and director of Thermo Electron is 81
Wyman Street, Waltham, Massachusetts 02454-9046.
John M. Albertine: Director, Thermo Electron
Dr. Albertine is Chairman of the Board and Chief Executive Officer of Albertine
Enterprises, Inc., an economic and public policy consulting firm. His business
address is Albertine Enterprises, Inc., 1156 15th Street NW., Suite 505,
Washington, DC 20005.
Samuel W. Bodman: Director, Thermo Electron
Mr. Bodman is Chairman and Chief Executive Officer of Cabot Corporation, a
manufacturer of specialty chemicals and materials. His business address is Cabot
Corporation, 75 State Street, Boston, Massachusetts 02109.
Peter O. Crisp: Director, Thermo Electron
Mr. Crisp was, until August 1997, a General Partner of Venrock Associates,
a venture capital investment firm. He has been the vice chairman of Rockefeller
Financial Services, Inc. since December 1997.
Elias P. Gyftopoulos: Director, Thermo Electron
Dr. Gyftopoulos is Professor Emeritus of the Massachusetts Institute of
Technology. His business address is Massachusetts Institute of Technology, Room
24-109, 77 Massachusetts Avenue, Cambridge, Massachusetts 02139.
Frank Jungers: Director, Thermo Electron
Mr. Jungers is a consultant on business and energy matters. His business
address is 822 NW Murray, Suite 242, Portland, Oregon 97229.
Robert A. McCabe: Director, Thermo Electron
Mr. McCabe is Chairman of Pilot Capital Corporation, a firm which is
engaged in private investments. His business address is Pilot Capital
Corporation, 444 Madison Avenue, Suite 2103, New York, New York 10022.
<PAGE>
Donald E. Noble: Director, Thermo Electron
For more than 20 years, from 1959 to 1980, Mr. Noble served as the Chief
Executive Officer of Rubbermaid, Incorporated, first with the title of President
and then as Chairman of the Board. His business address is Rubbermaid
Incorporated, 1147 Akron Road, Wooster, Ohio 44691.
Robert W. O'Leary: Director, Thermo Electron
Mr. O'Leary is the President and Chairman of Premier, Inc., a strategic
healthcare alliance. His business address is Premier, Inc., 12225 El Camino
Real, San Diego, California 92130.
Hutham S. Olayan: Director, Thermo Electron
Ms. Olayan is the President and a director of Olayan America Corporation, a
firm engaged in private investments, including real estate, and advisory
services. Her business address is Suite 1100, 505 Park Avenue, New York, New
York 10022. Ms. Olayan is a citizen of Saudi Arabia.
Roger D. Wellington: Director, Thermo Electron
Mr. Wellington is the President and Chief Executive Officer of Wellington
Consultants, Inc. and of Wellington Associates, Inc., international business
consulting firms.
Richard F. Syron: Director, President and Chief
Executive Officer, Thermo Electron
George N. Hatsopoulos: Director and Chairman of the Board,
Thermo Electron
John N. Hatsopoulos: Director and Vice Chairman of the
Board, Thermo Electron
Theo Melas-Kyriazi: Vice President and Chief Financial
Officer, Thermo Electron
Mr. Melas-Kyriazi is a citizen of Greece.
<PAGE>
Earl R. Lewis: Chief Operating Officer,
Measurement and Detection,
Thermo Electron
William A. Rainville: Chief Operating Officer, Recycling
and Resource Recovery,
Thermo Electron
Paul F. Kelleher: Senior Vice President, Finance &
Administration and Chief Accounting
Officer, Thermo Electron
Brian D. Holt: Chief Operating Officer, Energy and
Environment, Thermo Electron
John T. Keiser: Chief Operating Officer, Biomedical
and Emerging Technologies, Thermo
Electron
<PAGE>
Exhibit (i)
AGREEMENT
This Agreement is made this 12th day of June, 1999 by and between Thermo
Ecotek Corporation ("TCK") and KFx, Inc. ("KFx").
WHEREAS, TCK and KFx entered into a Stock Purchase Agreement dated August
18, 1995 (the "Stock Purchase Agreement"); and
WHEREAS, KFx granted TCK a Stock Purchase Warrant dated August 18, 1995 to
purchase 7,750,000 shares of KFx common stock at $3.65 per share; and
WHEREAS, KFx granted TCK another Stock Purchase Warrant dated August 18,
1995 to purchase sufficient shares of KFx to bring TCK's ownership of KFx up to
51% of the common stock of KFx (hereafter, both Stock Purchase Warrants will be
referred to as the "Warrants"); and
WHEREAS, KFx desires to eliminate the $3.65 per share ceiling on the
price of its common stock; and
WHEREAS, KFx further desires to eliminate the ability of TCK to acquire
a controlling interest in KFx; and
WHEREAS, TCK desires to sell the common stock it owns in KFx subject to a
minimum market price as defined below.
NOW THEREFORE, in consideration of the premises and the mutual promises
contained herein, the parties hereto agree as follows:
1. Authorization to KFx to Find a Buyer. TCK hereby grants KFx
authorization to find a buyer (the "Buyer") for all of the 4,250,000
shares of the common stock of KFx owned by TCK (the "TCK Stock") on
or before the Termination Date (as defined in Section 3, below) for
the consideration specified in Section 2.
2. Consideration: The price to be paid by Buyer for 100% of the TCK
Stock will be $2.00 per share.
3. Termination of Authorization: KFx's authorization to find a Buyer
for the TCK Stock shall expire 180 days from the date of this
Agreement (the "Termination Date").
<PAGE>
4. Extension of Termination Date:
A. The Termination Date may be extended by written request by KFx
to TCK for up to 60 days, provided however, KFx can
demonstrate to the satisfaction of TCK that KFx has a
reasonable chance of closing a sale of the TCK Stock during
the 60 day extension period, and provided further, the $2.00
per share price shall be increased by 15% to $2.30 per share.
B. If the TCK Stock is not purchased by a Buyer within such
60-day extension of the Termination Date, KFx's authorization
to find a Buyer for the TCK Stock shall automatically
terminate, and KFx shall have no further authorization to find
a Buyer for the TCK Stock.
5. Registration Statement Covering the TCK Stock: KFx agrees to prepare
and file as soon as possible following the execution of this
Agreement a registration statement (the "Registration Statement")
covering the resale by TCK of the TCK Stock pursuant to the terms of
the Registration Rights Agreement between KFx and TCK dated as of
August 18, 1995.
6. Closing of the Sale of the TCK Stock: If KFx finds a Buyer
willing to purchase the TCK Stock on the terms described herein,
the Buyer and TCK will negotiate in good faith agreements for the
sale and transfer of the TCK Stock. At the Closing of the
purchase of the TCK Stock (the "Closing") TCK will transfer the
Warrants to KFx for cancellation. KFx shall have no rights to
directly buy the TCK Stock for its own account or to sell the TCK
Stock directly to Buyer. Such agreements with Buyer shall
contain certain representations, warranties, terms, conditions,
indemnities and opinions for such stock and warrant
transactions. At the Closing, in consideration of TCK's
agreement to transfer the Warrants to KFx for cancellation, KFx
shall provide TCK a general release with respect to KFx and KFx
Fuel Partners, L.P. TCK shall provide to KFx a similar general
release. Each release shall also include a statement that, upon
the closing, each of the Stock Purchase Agreement and
Registration Rights Agreement (with the exception of Section 6
thereof) dated August 18th, 1995 between KFx and TCK will
terminate and no longer be of any force or effect.
7. Opinion of Counsel: As a condition to the Closing, KFx shall provide
TCK with an opinion of counsel, with respect to KFx, that this
Agreement complies with and/or does not violate any applicable laws,
regulations or KFx agreements.
8. Information About Buyers: KFx shall keep TCK informed on at least a
weekly basis about its progress in finding a Buyer for the TCK
Stock, and KFx shall immediately inform TCK about any offer from any
Buyer to purchase the TCK Stock.
<PAGE>
9. Sale by TCK Without KFx Involvement: If, during the term of this
Agreement, TCK should sell all the TCK Stock to a Buyer who was not
found by KFx, TCK shall nevertheless agree to terminate the Warrants
at the Closing of the sale of the TCK Stock and the Stock Purchase
Agreement and Registration Rights Agreement (except for Section 6
thereof) shall terminate and no longer be of any force or effect.
10. Condition Precedent: It shall be a condition precedent to the
effectiveness of this Agreement that the Board of Directors of both
KFx and TCK approve the execution and entering to of this Agreement
by KFx and TCK, respectively.
11. Representations of KFx:
(a) Authority: KFx has all the requisite power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery of this Agreement, the
performance of KFx hereunder and the consummation by KFx of the
transactions contemplated hereby have been duly and validly authorized
by all necessary corporate action. This Agreement has been duly and
validly executed and delivered by KFx, enforceable against KFx in
accordance with its terms.
(b) Noncontravention: Neither the execution or delivery of this
Agreement nor the performance by KFx of its obligations hereunder
will, directly or indirectly (1) violate KFx's certificate of
incorporation, bylaws or any contract or agreement or other
arrangement to which KFx is a party, or (2) violate any statute, law,
regulation or order applicable to KFx. Without limiting the foregoing,
KFx shall not make any offers of the TCK Stock prior to the effective
date of the Registration Statement.
(c) Third Party Consents: No consent, authorization, approval or
order of any third party, including any governmental agency, is
required in connection with KFx's entry into this Agreement or the
consummation by KFx of the transactions contemplated hereby.
12. Governing Law; Prior Agreements: This Agreement shall be governed by
Massachusetts law, and shall supercede all written or oral
agreements and contracts with respect to the Stock Purchase
Agreement or the Warrants.
<PAGE>
IN WITNESS WHEREOF, the parties execute this Agreement by their duly
authorized officers.
KFx, INCORPORATED THERMO ECOTEK CORPORATION
/s/ Seth L. Patterson /s/ Brian D. Holt
Name:---------------------------- Name:------------------------------
Title: Executive Vice President and Title: President and Chief
Chief Financial Officer Executive Officer
