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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S - 8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EG&G, INC.
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(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS
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(State or Other Jurisdiction of Incorporation or Organization)
04-2052042
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(I.R.S. Employer Identification No.)
45 WILLIAM STREET, WELLESLEY, MASSACHUSETTS 02481
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(Address of Principal Executive Offices) (Zip Code)
EG&G, Inc. 1998 Deferred Compensation Plan
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(Full Title of the Plan)
MURRAY GROSS, ESQ., GENERAL COUNSEL, EG&G, INC.
45 William Street, Wellesley, Massachusetts 02481
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(Name and Address of Agent for Service)
(781) 237-5100
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Telephone Number, Including Area Code of Agent For Service
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
Proposed
Title Of Maximum
Securities Amount Aggregate Amount of
To Be to be Offering Registration
Registered Registered(1) Price(2) Fee
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<S> <C> <C> <C>
Deferred Compensation
Obligations $2,000,000 $2,000,000 $590.000
================================================================================
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of EG&G,
Inc. to pay deferred compensation in the future in accordance with the
terms of the EG&G, Inc. 1998 Deferred Compensation Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) of the Securities Act of 1933, as amended.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in documents
sent or given to participants in the 1998 Deferred Compensation Plan (the
"Deferred Plan") Plan of EG&G, Inc. ("EG&G, the "Company" or the "Registrant")
pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which are on file with the Securities and Exchange
Commission, are incorporated in this Registration Statement by reference:
a. The Company's latest annual report filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") or the latest
prospectus filed pursuant to Rule 424(b) under the Securities Act, that contains
audited financial statements for the Company's latest fiscal year for which such
statements have been filed.
b. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
documents referred to in (a) above.
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 filing
of a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such reports and documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
Under the Deferral Plan, the Registrant will provide a select group of
highly compensated or management employees (the "Eligible Executives") the
opportunity to elect to defer a specified percentage of their cash compensation.
The obligations of the Registrant under such elections (the "Obligations") will
be unfunded and unsecured general obligations of the Registrant to pay in the
future the value of the deferred compensation adjusted to reflect the
performance, whether positive or negative, of selected investment measurement
options, chosen by each participant, during the deferral period in accordance
with the terms of the Deferral Plan.
The Deferral Plan will be administered by the members of the Compensation
and Stock Option Committee (the "Committee") of the Board of the Company (the
"Board"). Any individual serving on the Committee who has elected to participate
in the Deferral Plan (a "Participant") shall not vote or act on any matter
relating solely to himself or herself. The Committee may from time to time adopt
rules and regulations governing the Deferral Plan and shall have the
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authority to give interpretive rulings with respect to the Deferral Plan.
An Eligible Executive may elect to defer a portion of his or her
compensation under the terms of the Plan. Participants may elect to defer up to
one-half of base salary and any percentage of bonus under the Economic Value
Added Incentive Plan, as amended, or its successor, up to 100%.
The Obligations for each Participant will equal the balance in a
bookkeeping reserve account established for such Participant. The investment
earnings credited to such account will be indexed to one or more mutual funds,
indices or the EG&G Common Stock Fund (primarily invested in the Registrant's
Common Stock), individually chosen by each Participant from those made available
by the Committee from time to time. Each Participant's account will be adjusted
to reflect the investment performance of the measure selected. The Registrant is
not required to actually invest the deferred compensation in the funds selected
by Participants. However, the Registrant shall establish one or more trusts and
at least annually transfer assets to such trusts in order to assist the
Registrant in meeting the Obligations.
The Obligations will be distributed by the Registrant in accordance with
the terms of the Deferral Plan and upon a payment plan selected by each
Participant under the terms of the Deferral Plan except that any portion of an
account measured by the performance of the EG&G Common Stock Fund will be
distributed in the form of EG&G Common Stock in a lump sum following termination
of the Participant's employment. Upon a determination by the Committee that a
Participant has suffered an Unforeseeable Financial Emergency, the Committee may
direct the Registrant to pay such Participant an amount necessary to meet the
emergency, but not exceeding the aggregate balance of the Participant's deferral
account.
A Participant's right or the right of any other person to the Obligations
cannot be assigned or transferred in any manner or be subject to alienation,
anticipation, sale, pledge, encumbrance or other legal process. The Obligations
will not have the benefit of a negative pledge or any other affirmative or
negative covenant on the part of the Registrant and shall be merely unfunded and
unsecured promises to pay in the future.
The Board or Committee may at any time amend or modify any or all of the
provisions of the Deferral Plan, except that no such amendment or modification
may decrease or restrict the value of any participant's deferral account as it
existed as of the date of the amendment or modification. The Registrant may
terminate the Deferral Plan at any time and for any reason whatsoever and may
accelerate installment payments by paying the Obligations in a lump sum or in
fewer installments.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
LEGAL OPINION - The validity of the securities hereby registered has been
passed upon for EG&G by Murray Gross, Senior Vice President, General Counsel and
Clerk of the Company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67, Chapter 156B of the General Laws of the Commonwealth of
Massachusetts, as amended, (the "Massachusetts Business Corporation Law") and
Article V, Section 9 of EG&G's By-Laws, to which reference is hereby made,
contain provisions authorizing indemnification by EG&G of directors, officers,
employees or agents against certain liabilities and expenses which they may
incur as directors, officers, employees or agents of EG&G or of certain other
entities. Section 67, Chapter 156B of the Massachusetts Business Corporation Law
provides that the indemnification of directors, officers, employees, and agents
of a corporation and persons who serve at the corporation's request as
directors, officers, employees, and other agents of another organization may be
provided to whatever extent as shall be specified by (i) the articles of
organization of the corporation or (ii) a by-law adopted by the stockholders or
(iii) a vote adopted by the holders of a majority of the shares of stock
entitled to vote on the election of directors. Unless otherwise provided in the
articles of organization or the by-laws, the indemnification of any persons
described above who are not directors of the corporation may be provided by the
corporation to the extent authorized by the directors. Such indemnification may
include payment by the corporation of expenses incurred in defending a civil or
criminal action or proceeding prior to the final disposition of such action or
proceeding, upon receipt of an undertaking by the indemnified person to repay
such payment if he shall be adjudicated to be not entitled to indemnification
under Section 67 of the Massachusetts Business Corporation Law. Any
indemnification may be provided although the person to be indemnified is no
longer an officer, director, employee or agent of the corporation or of such
other organization. Indemnification may not be provided for any person with
respect to any matter as to which that person shall have been adjudicated in any
proceeding to not have acted in good faith in the reasonable belief that his
action was in the best interest of the corporation.
Section 65 of the Massachusetts Business Corporation Law provides a
limitation on the imposition of liability under other sections of the
Massachusetts Business Corporation Law. Under this Section, a director, officer
or incorporator of a corporation is to perform his duties in good faith and in a
manner he reasonably believes to be in the best interests of the corporation and
with such care as an ordinarily prudent person in a like position would use
under similar circumstances. Such director, officer or incorporator is entitled
to rely on information, opinions, reports or records, including financial
statements, books of accounts and other financial records which are prepared by
or presented by or under the supervision of
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(1) one or more officers or employees of the corporation whom the director,
officer or incorporator reasonably believes to be reliable and competent in the
matters presented, or (2) counsel, public accountants or other persons as to
matters which the director, officer or incorporator reasonably believes to be
within such a person's professional expert competence, or (3) in the case of a
director, a duly constituted committee of the board upon which he does not
serve, as to matters within its delegated authority, which committee the
director reasonably believes to merit confidence. If a director, officer or
incorporator performs his duties in the manner that is set forth above, that
fact shall be an absolute defense to any claim asserted against him except as
expressly provided by statute.
Section 13 of the Massachusetts Business Corporation Law provides that the
articles of organization of a corporation may contain a provision eliminating or
limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of a fiduciary duty as a director
notwithstanding any provision of law imposing such liability; provided, however,
that such provision shall not eliminate or limit the liability of a director (i)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 61 or
62 of the Massachusetts Business Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. Article Six of the
Restated Articles of Organization of the Registrant contains a provision
consistent with Section 13 of the Massachusetts Business Corporation Law and
provides that to the fullest extent permitted by the Massachusetts Business
Corporation Law, a director of the Registrant shall not be personally liable to
the Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director, notwithstanding any provision of law imposing such
liability.
Section 9 of Article V of the By-laws of the Registrant contains provisions
relating to the indemnification of directors and officers of the Registrant
which are consistent with Section 67 of the Massachusetts Business Corporation
Law. This Section provides that no indemnification will be provided to any
person who was or is a director or officer with respect to any matter as to
which such person shall have been finally adjudicated in any proceeding not to
have acted in good faith in the reasonable belief that his action was in the
best interest of the corporation; nor shall indemnification be provided where
the corporation is required or has undertaken to submit to a court the question
of whether or not indemnification by it is against public policy and it has been
finally determined that such indemnification is against public policy; provided,
however that, prior to such final adjudication, the corporation may compromise
and settle any such claims and liabilities and pay such expenses, if such
settlement or payment, or both, appears, in the judgment of a majority of those
members of the Board of Directors who are not directly involved in such matters,
to be for the best interest of the corporation as evidenced by a resolution to
that effect adopted after receipt by the corporation of a written opinion
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of counsel for the corporation that, based upon the facts available to such
counsel such person has not acted in a manner that would prohibit
indemnification.
Section 67 of the Massachusetts Business Corporation Law also contains
provisions authorizing a corporation to obtain insurance on behalf of any
director, officer, employee or agent of the corporation against liabilities,
whether or not the corporation would have the power to indemnify against such
liabilities. The Registrant maintains directors' and officers' liability and
company reimbursement liability insurance. Subject to certain deductibles, such
insurance will pay up to $50,000,000 per year on claims or errors and omissions
against the Registrant's directors and officers and will reimburse the
Registrant for amounts paid to indemnify directors and officers against the
costs of such claims pursuant to the Registrant's By-Laws.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
Item 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
(a) 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
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(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 (1) (i) and (1) (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(b) 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.
(c) 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.
2. 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 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.
3. 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 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 a 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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Wellesley, Commonwealth of Massachusetts, on the 6th
day of October, 1998.
EG&G, INC.
By: /s/ John M. Kucharski
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John M. Kucharski, Chairman of the Board
and Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of EG&G, Inc., hereby severally
constitute John M. Kucharski and Murray Gross, and each of them singly, our true
and lawful attorneys with full power to them, and each of them singly, to sign
for us and in our names, in the capacities indicated below, the Registration
Statement filed herewith and any amendments to said Registration Statement, and
generally to do all such things in our name and behalf in our capacities as
officers and directors to enable EG&G, Inc. to comply with the provisions of the
Securities Act of 1933 as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorneys, or any of them, to said Registration Statement
and any and all amendments thereto.
Witness our hands and common seals on the date set forth below.
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 date indicated.
Signature Title Date
--------- ----- ----
/s/ John M. Kucharski Chairman of the October 6, 1998
- ----------------------------- Board and Chief
John M. Kucharski Executive Officer
(Principal Executive
Officer)
/s/ John F. Alexander, II Senior Vice President October 6, 1998
- ----------------------------- and Chief Financial
John F. Alexander, II Officer (Principal
Financial Officer)
/s/ Gregory D. Perry Corporate Controller October 6, 1998
- ----------------------------- (Principal Accounting
Gregory D. Perry Officer)
/s/ John M. Kucharski Director October 6, 1998
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John M. Kucharski
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/s/ Tamara J. Erickson Director October 6, 1998
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Tamara J. Erickson
/s/ John B. Gray Director October 6, 1998
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John B. Gray
/s/ Kent F. Hansen Director October 6, 1998
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Kent F. Hansen
/s/ John F. Keane Director October 6, 1998
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John F. Keane
/s/ Nicholas A. Lopardo Director October 6, 1998
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Nicholas A. Lopardo
/s/ Greta E. Marshall Director October 6, 1998
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Greta E. Marshall
/s/ Michael C. Ruettgers Director October 6, 1998
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Michael C. Ruettgers
/s/ Gregory L. Summe Director October 6, 1998
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Gregory L. Summe
/s/ John Larkin Thompson Director October 6, 1998
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John Larkin Thompson
/s/ G. Robert Tod Director October 6, 1998
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G. Robert Tod
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT
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5. Opinion of Murray Gross, Esquire, Senior Vice President,
General Counsel and Clerk to EG&G, Inc.
23. Consent of Experts and Counsel
(i) Consent of Arthur Andersen LLP
(ii) Consent of Murray Gross, Esquire, is included in his Opinion
filed as Exhibit 5
24. Power of Attorney is included on the signature page of this
Registration Statement
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EXHIBIT 5
OPINION OF MURRAY GROSS, ESQUIRE
September 30, 1998
EG&G, Inc.
45 William Street
Wellesley, MA 02481
Ladies and Gentlemen:
I have been requested to furnish you my opinion as to certain matters in
connection with the filing of a Registration Statement on Form S-8 (the
"Registration Statement"), which Registration Statement is to be filed with the
Securities and Exchange Commission on or about September 30, 1998, relating to
the registration of $2,000,000 of deferred compensation obligations (the
"Obligations") which will represent unsecured obligations of the EG&G, Inc. 1998
Deferred Compensation Plan (the "Plan").
I have been associated with EG&G, Inc. (the "Company") for 27 years, and
during that time I have served as an Attorney, Assistant General Counsel, and
since April 24, 1990, as General Counsel of EG&G, Inc. I have examined the
Restated Articles of Organization of the Company and all amendments thereto on
file in the office of the Secretary of the Commonwealth of Massachusetts, the
amended By-Laws of the Company, all resolutions adopted by the directors of the
Company relating to the Plan, the aforesaid Registration Statement and Plan, and
such other documents as I deem material for the purposes of this opinion.
Based upon the foregoing, I am of the opinion that when issued by the
Company in the manner provided in the Plan, the Obligations will be valid and
binding obligations of the Registrant, enforceable against the Registrant in
accordance with their terms, subject, as to enforcement, to bankrupty,
insolvency, reorganization, arrangement, moratorium and other laws of general
applicability.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Murray Gross
-------------------------------------
Murray Gross
Senior Vice President and
General Counsel
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Exhibit 23(i)
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated January 20,
1998 included (or incorporated by reference) in EG&G, Inc.'s Form 10-K for the
year ended December 28, 1997 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
--------------------------
ARTHUR ANDERSEN LLP
Boston, Massachusetts
October 1, 1998
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