As filed with the Securities and Exchange Commission on August 5, 2005.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
Registration Statement
Under
The Securities Act of 1933
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THERMO ELECTRON CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 04-2209186
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
81 Wyman Street
Waltham, Massachusetts 02454-9046
(Address of Principal Executive Offices) (Zip Code)
THERMO ELECTRON CORPORATION 2005 STOCK INCENTIVE PLAN
(Full Title of the Plan)
Seth H. Hoogasian, Secretary and General Counsel
Thermo Electron Corporation
81 Wyman Street
P. O. Box 9046
Waltham, Massachusetts 02454-9046
(Name and Address of Agent for Service)
(781) 622-1000
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
Proposed
Maximum
Proposed Maximum Aggregate Amount
Title of Securities Amount Offering Price Offering of Registration
to be Registered to be Registered Per Share Price Fee
---------------- ---------------- --------- ----- ---
Common Stock, $1.00 par 11,0000,000 $29.31 (1) $322,410,000 (1) $37,947.66
value per share shares
In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate number of securities as may
be issuable in connection with adjustments under the employee benefit plan
described herein to reflect certain changes in Thermo Electron's capital
structure, including stock dividends or stock splits.
(1) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(h) and Rule 457(c) under the
Securities Act of 1933. The calculation of the proposed maximum aggregate
offering price has been based upon (i) the registration hereunder of an
aggregate of 11,000,000 shares and (ii) the average of the high and low sales
prices, $29.45 and $29.17, respectively, of Thermo Electron's common stock on
the New York Stock Exchange on August 4, 2005 as reported in the consolidated
transaction reporting system.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Thermo Electron Corporation ("Thermo Electron") is subject to the
informational and reporting requirements of Sections 13(a), 13(c), 14 and 15(d)
of the Securities Exchange Act of 1934, as amended, and in accordance therewith
files reports, proxy statements and other information with the Securities and
Exchange Commission. The following documents, which are on file with the
Commission, are incorporated in this Registration Statement by reference:
(a) Thermo Electron's Annual Report on Form 10-K for the fiscal year ended
December 31, 2004.
(b) Thermo Electron's Quarterly Report on Form 10-Q for the quarter ended
April 2, 2005.
(c) Thermo Electron's Quarterly Report on Form 10-Q for the quarter ended
July 2, 2005.
(d) Thermo Electron's Current Report on Form 8-K filed with the Commission
on July 7, 2005.
(e) Thermo Electron's Current Report on Form 8-K filed with the Commission
on July 27, 2005.
(f) The description of Thermo Electron's common stock which is contained
in Thermo Electron's Registration Statement on Form 8-A filed under
the Exchange Act, as such description may be amended from time to
time.
(g) The description of Thermo Electron's Preferred Stock Purchase Rights
which is contained in Thermo Electron's Registration Statement on Form
8-A filed under the Exchange Act, as such description may be amended
from time to time.
All reports or proxy statements filed by Thermo Electron pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment that indicates that all securities offered herein have been sold, or
that deregisters all such securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be a part
hereof from the respective dates of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the common stock offered hereby has been passed upon by
John A. Piccione, Esq., Deputy General Counsel of Thermo Electron. Mr. Piccione
is a full-time employee of Thermo Electron and owns or has the right to acquire
34,442 shares of Thermo Electron common stock.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law and Thermo Electron's Certificate of
Incorporation and By-Laws limit the monetary liability of directors to Thermo
Electron and to its stockholders and provide for indemnification of Thermo
Electron'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 Thermo Electron and, with
respect to any criminal action or proceeding, actions that the indemnitee had no
reasonable cause to believe were unlawful. Thermo Electron also has
indemnification agreements with its directors and officers that provide for the
maximum indemnification allowed by law.
Thermo Electron 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 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is attached hereto and
incorporated herein by reference.
Item 9. Undertakings.
(a) Thermo Electron hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by Thermo Electron 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) Thermo Electron hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of Thermo Electron's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
Thermo Electron pursuant to the foregoing provisions, or otherwise, Thermo
Electron 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 Thermo Electron of expenses
incurred or paid by a director, officer or controlling person of Thermo Electron
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, Thermo Electron 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Thermo Electron
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 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 5th
day of August, 2005.
THERMO ELECTRON CORPORATION
By: /s/ Marijn E. Dekkers
----------------------------------------
Marijn E. Dekkers
Its: Chief Executive Officer, President
and Director
POWER OF ATTORNEY
Each of the undersigned Directors and Officers of Thermo Electron
Corporation hereby appoints Peter M. Wilver, Kenneth J. Apicerno and Seth H.
Hoogasian, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Marijn E. Dekkers August 5, 2005
---------------------------- Chief Executive Officer, President, and
Marijn E. Dekkers Director (Principal Executive Officer)
/s/ Peter M. Wilver August 5, 2005
---------------------------- Vice President and Chief Financial
Peter M. Wilver Officer (Principal Financial Officer)
/s/ Peter E. Hornstra August 5, 2005
---------------------------- Corporate Controller and Chief
Peter E. Hornstra Accounting Officer (Principal
Accounting Officer)
/s/ Peter J. Manning August 5, 2005
---------------------------- Director
Peter J. Manning
/s/ John L. LaMattina August 5, 2005
---------------------------- Director
John L. LaMattina
/s/ Jim P. Manzi August 5, 2005
---------------------------- Chairman of the Board, Director
Jim P. Manzi
/s/ Robert A. McCabe August 5, 2005
---------------------------- Director
Robert A. McCabe
/s/ Robert W. O'Leary August 5, 2005
---------------------------- Director
Robert W. O'Leary
/s/ Michael E. Porter August 5, 2005
---------------------------- Director
Michael E. Porter
/s/ Elaine S. Ullian August 5, 2005
---------------------------- Director
Elaine S. Ullian
EXHIBIT INDEX
Exhibit
Number Description
5 Opinion of John A. Piccione, Esq. regarding legality.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of John A. Piccione, Esq.
(contained in his opinion filed as Exhibit 5).
23.3 Consent of Deloitte & Touche LLP.
24 Power of Attorney (see signature pages to this Registration
Statement).
Exhibit 5
Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454-9046
August 5, 2005
Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454-9046
Re: Registration Statement on Form S-8 Relating
to 11,000,000 Shares of the Common Stock,
$1.00 par value, of Thermo Electron Corporation
Ladies and Gentlemen:
I am Deputy 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-8 (the
"Registration Statement"), of 11,000,000 shares of Thermo Electron's Common
Stock, $1.00 par value per share (the "Shares") subject to the Thermo Electron
Corporation 2005 Stock Incentive Plan (the "Plan").
I or a member of the Company's Legal Department have reviewed the corporate
proceedings taken by Thermo Electron with respect to the authorization of the
issuance of the Shares. I or a member of the Company's Legal Department 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 Thermo Electron and have made all
investigations of law and have discussed with Thermo Electron's representatives
all questions of fact that I have deemed necessary or appropriate.
Based upon and subject to the foregoing, I am of the opinion that:
1. Thermo Electron is a corporation validly existing and in corporate good
standing under the laws of the State of Delaware.
2. The issuance and sale of the Shares as contemplated in the Registration
Statement have been duly authorized by Thermo Electron.
3. The Shares, when issued and sold in accordance with the provisions of
the Plan, will
be validly issued, fully paid and nonassessable.
This opinion is limited to the applicable provisions of the Delaware
Constitution, the General Corporation Law of the State of Delaware ("Delaware
Law") and reported judicial decisions interpreting Delaware Law.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ John A. Piccione
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John A. Piccione
Deputy General Counsel
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 14, 2005 relating to the
financial statements, financial statements schedule, management's assessment of
the effectiveness of internal control over financial reporting and the
effectiveness of internal control over financial reporting, which appears in the
2004 Annual Report to Shareholders of Thermo Electron Corporation which is
incorporated by reference in Thermo Electron Corporation's Annual Report on Form
10-K for the year ended December 31, 2004.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
August 4, 2005
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement of
Thermo Electron Corporation on Form S-8 of our report dated July 22, 2005 (which
report expresses an unqualified opinion and includes explanatory paragraphs
relating to the preparation of the Kendro Laboratory Products combined financial
statements as of and for the year ended December 31, 2004 covered by our report
as described in Note 1 and stating that the combined balance sheet as of March
31, 2005 and the combined statements of income, comprehensive income and
parent's investment, and cash flows for the three months ended March 31, 2004
and 2005 of Kendro Laboratory Products were not audited by us and, accordingly,
we did not express an opinion on such combined financial statements) relating to
the combined financial statements of Kendro Laboratory Products appearing in
Amendment No. 1 to the Current Report on Form 8-K/A of Thermo Electron
Corporation filed July 22, 2005 and incorporated by reference in the Prospectus,
which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Charlotte, North Carolina
August 5, 2005