AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 16, 2004
REGISTRATION NO. 333- __________
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UNITED STATES
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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METTLER-TOLEDO INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3668641
(State or other jurisdiction of) (IRS Employer
of incorporation or organization Identification No.)
IM LANGACHER, P.O. BOX MT-100
CH-8606, GREIFENSEE
SWITZERLAND
(Address of principal executive offices)
METTLER-TOLEDO INTERNATIONAL INC. 2004 EQUITY INCENTIVE PLAN
(Full title of the plans)
PETER EDWARDS
1900 POLARIS PARKWAY
COLUMBUS, OHIO 43240
(Name and address of agent for service)
(614) 438-4870
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
=====================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE
TITLE OF SECURITIES AMOUNT TO PRICE PER OFFERING AMOUNT OF
TO BE REGISTERED (1) REGISTERED (2) SHARE (3) PRICE REGISTRATION FEE
----------------------------------- ------------- --------------- --------------- -------------------
Common Stock, par value $.01 per 3,500,000 shares $41.07 $143,762,500 $18,214
share
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(1) Includes preferred stock purchase rights which, prior to the
occurrence of certain events, will not be exercisable or evidenced
separately from the common stock.
(2) Includes such additional number of shares as may be required in the
event of a stock split, stock dividends or similar transaction in
accordance with Rule 416(a) of the Securities Act of 1933 (the
"Securities Act").
(3) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) of the Securities Act based upon the average
of the high and low prices of the Registrant's common stock, par value
$.01 per share, as reported by the New York Stock Exchange on August
9, 2004.
EXPLANATORY NOTE
This Form S-8 Registration Statement relates to 3,500,000 shares
of common stock of Mettler-Toledo International Inc., par value $.01 per
share (the "Common Stock"), which may be offered under the Mettler-Toledo
International Inc. 2004 Equity Incentive Plan (the "Plan").
PART I
The documents containing information specified by Part I of this
Registration Statement will be sent or given to participants in the Plan as
specified in Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "SEC") under the Securities Act. Such documents are not
required to be filed with the SEC but constitute (along with the documents
incorporated by reference into this Registration Statement pursuant to Item
3 of Part II hereof) a prospectus that meets the requirements of Section
10(a) of the Securities Act.
References to "the Company" shall mean Mettler-Toledo
International Inc., a Delaware corporation.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
We file annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy any document we
file at the SEC's public reference room in Washington, D.C. Please call the
SEC at 1-800-SEC-0330 for further information on the public reference
rooms. Our SEC filings are also available to the public from the SEC's web
site at http://www.sec.gov. Reports, proxy and information statements and
other information concerning us can also be inspected at the offices of the
New York Stock Exchange, 20 Broad Street, New York, NY 10005.
The SEC allows us to "incorporate by reference" information into
this Registration Statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this Registration Statement, and later information that we file
with the SEC will automatically update this Registration Statement. We
incorporate by reference the following document listed below and any future
filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to
the termination of the offering:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2003, filed with the SEC on March 15,
2004;
(b) The Company's Quarterly Report on Form 10-Q, Form 10-Q/A and
Form 10-Q/A (Amendment #2) for the quarter ended March 31,
2004, filed with the SEC on May 10, 2004, May 12, 2004 and
August 10, 2004, respectively;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2004, filed with the SEC on August 9, 2004;
(d) The description of the Common Stock, which is registered
under Section 12 of the Exchange Act, contained in the
Registration Statement on Form 8-A filed with the SEC on
December 16, 1997, which incorporates by reference the
description of the Common Stock contained in the
Registration Statement on Form S-1 (No. 333-35597)
(originally filed on September 15, 1997), as amended,
including any amendment or report filed for the purpose of
updating such description; and
(e) The description of the preferred stock purchase rights that
relate to the Common Stock contained in the registration
statement on Form 8-A filed with the SEC on August 27, 2002,
as amended by the registration statement on Form 8-A/A filed
on August 29, 2002.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Certain legal matters with respect to the issuance of the
securities offered hereby will be passed upon for us by Fried, Frank,
Harris, Shriver & Jacobson (London) LLP, London, England.
Item 6. Indemnification of Directors and Officers
The Company, as a Delaware corporation, is empowered by Section
145 of the General Corporation Law of the State of Delaware (the "DGCL"),
subject to the procedures and limitations stated therein, to indemnify any
person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with any threatened, pending or completed action, suit or
proceeding in which such person is made or threatened to be made a party by
reason of his being or having been a director, officer, employee or agent
of the Company or his serving at the request of the Company as a director,
officer, employee or agent of another company or other entity. The statute
provides that indemnification pursuant to its provisions is not exclusive
of other rights of indemnification to which a person may be entitled under
any by-law, agreement, vote of stockholders or disinterested directors, or
otherwise. The Amended By-Laws provide for indemnification by the Company
of its directors and officers to the full extent authorized by the DGCL.
Pursuant to Section 145 of the DGCL, the Company has purchased insurance on
behalf of its present and former directors and officers against liabilities
asserted against or incurred by them in such capacity or arising out of
their status as such.
Pursuant to specific authority granted by Section 102 of the
DGCL, the Amended and Restated Certificate of Incorporation contains the
following provision regarding indemnification of directors:
"To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a
Director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a Director."
The Amended By-Laws contain the following provision regarding
indemnification of directors and officers:
"The Corporation shall indemnify to the full extent authorized by
law any person made or threatened to be made a party to an
action, suit or proceeding, whether criminal, civil
administrative or investigative, by reason of the fact that he,
his testator or intestate is or was a director, officer, employee
or agent of the Corporation or is or was serving, at the request
of the Corporation, as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise."
The Company has entered into agreements to provide
indemnification for its directors and certain officers in addition to the
indemnification provided for in the Amended and Restated Certificate of
Incorporation and Amended By-Laws. These agreements, among other things,
indemnify the directors, to the fullest extent provided by Delaware law,
for certain expenses (including attorneys' fees), losses, claims,
liabilities, judgments, fines and settlement amounts incurred by such
indemnitee in any action or proceeding, including any action by or in the
right of the Company, on account of services as a director or officer of
any affiliate of the Company, or as a director or officer of any other
company or enterprise that the indemnitee provides services to at the
request of the Company.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Specimen Form of the Company's Common Stock Certificate
(Filed as Exhibit 4.3 to the Company's Registration
Statement, as amended (File No. 333-35597), on Form S-1
and incorporated by reference herein).
4.2 Rights Agreement, dated as of August 26, 2002, between
the Company and Mellon Investor Services LLC, as Rights
Agent, which includes, as Exhibit A thereto, the
Certificate of Designation, as Exhibit B thereto, the
Form of Rights Certificate and, as Exhibit C thereto,
the Summary of Rights to Purchase Preferred Shares
(filed as Exhibit 4 to the Company's registration
statement on Form 8-A/A filed on August 29, 2002 and
incorporated by reference herein).
4.3 Amended and Restated Certificate of Incorporation of
the Company (Filed as Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 and incorporated by reference
herein).
4.4 Amended By-Laws of the Company (Filed as Exhibit 3.2 to
the Company's Annual Report on Form 10-K for the period
ended December 31, 2002 and incorporated by reference
herein).
4.5 Mettler-Toledo International Inc. 2004 Equity Incentive
Plan (Filed as Appendix A to the Company's Proxy
Statement filed on March 29, 2004 and incorporated by
reference herein).
5.1* Opinion of Fried, Frank, Harris, Shriver & Jacobson
(London) LLP regarding the legality of the securities
being registered.
23.1* Consent of Fried, Frank, Harris, Shriver & Jacobson
(London) LLP (included in Exhibit 5.1).
23.2* Consent of PricewaterhouseCoopers AG.
24.1 Power of Attorney (included on the signature page
included in this Part II).
--------------------
* filed herewith
Item 9. Undertakings
The Company 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;
(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;
and
(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 the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the information
required to be included in such post-effective amendment is
contained in periodic reports filed or furnished by the
Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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 Securities Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
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 Greifensee, Switzerland, on August 16, 2004.
Mettler-Toledo International Inc.
By: /s/ William P. Donnelly
-----------------------
William P. Donnelly
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Mettler-Toledo
International Inc., a Delaware corporation, hereby constitute and appoint
Robert F. Spoerry, Dennis W. Braun, James T. Bellerjeau and Mary T.
Finnegan, and each of them, as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him in his
name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement and any and all documents in
connection therewith, and to file the same, with all exhibits thereto, and
all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent 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, and hereby ratifies, approves
and confirms all that his said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Chairman of the Board, April 29, 2004
/s/ Robert F. Spoerry President and Chief
---------------------- Executive Officer
Robert F. Spoerry (principal executive officer)
/s/ William P. Donnelly Chief Financial Officer August 16, 2004
----------------------- (principal financial and
William P. Donnelly accounting officer)
/s/ Phillip Caldwell Director April 29, 2004
----------------------
Phillip Caldwell
/s/ John T. Dickson Director April 29, 2004
----------------------
John T. Dickson
/s/ Philip H. Geier Director April 29, 2004
----------------------
Philip H. Geier
/s/ John D. Macomber Director April 29, 2004
----------------------
John D. Macomber
/s/ Hans Ulrich Maerki Director April 29, 2004
----------------------
Hans Ulrich Maerki
/s/ George M. Milne Director April 29, 2004
----------------------
George M. Milne
/s/ Thomas P. Salice Director April 29, 2004
----------------------
Thomas P. Salice
Index to Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- ----------------------
4.1 Specimen Form of the Company's Common Stock Certificate
(Filed as Exhibit 4.3 to the Company's Registration
Statement, as amended (File No. 333-35597), on Form S-1
and incorporated by reference herein).
4.2 Rights Agreement, dated as of August 26, 2002, between
the Company and Mellon Investor Services LLC, as Rights
Agent, which includes, as Exhibit A thereto, the
Certificate of Designation, as Exhibit B thereto, the
Form of Rights Certificate and, as Exhibit C thereto,
the Summary of Rights to Purchase Preferred Shares
(filed as Exhibit 4 to the Company's registration
statement on Form 8-A/A filed on August 29, 2002 and
incorporated by reference herein).
4.3 Amended and Restated Certificate of Incorporation of
the Company (Filed as Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 and incorporated by reference
herein).
4.4 Amended By-Laws of the Company (Filed as Exhibit 3.2 to
the Company's Annual Report on Form 10-K for the period
ended December 31, 2002 and incorporated by reference
herein).
4.5* Mettler-Toledo International Inc. 2004 Equity Incentive
Plan (Filed as Appendix A to the Company's Proxy
Statement filed on March 29, 2004 and incorporated by
reference herein).
5.1* Opinion of Fried, Frank, Harris, Shriver & Jacobson
(London) LLP regarding the legality of the securities
being registered.
23.1* Consent of Fried, Frank, Harris, Shriver & Jacobson
(London) LLP (included in Exhibit 5.1).
23.2* Consent of PricewaterhouseCoopers AG.
24.1 Power of Attorney (included on the signature page
included in this Part II).
-------------------
* filed herewith