<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 24, 1999
REGISTRATION NO. 333-71069
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
AMENDMENT NO. 3
TO
FORM S-3
-------------------------
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 AND
POST-EFFECTIVE AMENDMENT NO. 4 TO REGISTRATION STATEMENT
ON FORM S-3 (NO. 33-59675)
-------------------------
EG&G, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
MASSACHUSETTS 04-2052042
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
-------------------------
45 WILLIAM STREET
WELLESLEY, MASSACHUSETTS 02481
(781) 237-5100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-------------------------
ROBERT F. FRIEL
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
EG&G, INC.
45 WILLIAM STREET
WELLESLEY, MASSACHUSETTS 02481
(781) 237-5100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
-------------------------
COPIES TO:
<TABLE>
<S> <C>
DAVID E. REDLICK, ESQ. DAVID C. CHAPIN, ESQ.
HAL J. LEIBOWITZ, ESQ. ROPES & GRAY
HALE AND DORR LLP ONE INTERNATIONAL PLACE
60 STATE STREET BOSTON, MASSACHUSETTS 02110
BOSTON, MASSACHUSETTS 02109 (617) 951-7000
(617) 526-6000
</TABLE>
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
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(c)
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. [ ]
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<PAGE> 2
THIS REGISTRATION STATEMENT, WHICH IS A NEW REGISTRATION STATEMENT, ALSO
CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 4 TO REGISTRATION STATEMENT NO.
33-59675, WHICH WAS DECLARED EFFECTIVE ON SEPTEMBER 27, 1995. SUCH
POST-EFFECTIVE AMENDMENT NO. 4 SHALL HEREAFTER BECOME EFFECTIVE CONCURRENTLY
WITH THE EFFECTIVENESS OF THIS REGISTRATION STATEMENT AND IN ACCORDANCE WITH
SECTION 8(c) OF THE SECURITIES ACT OF 1933. PURSUANT TO RULE 429 UNDER THE
SECURITIES ACT OF 1933, THE PROSPECTUS FILED AS PART OF THIS REGISTRATION
STATEMENT ALSO RELATES TO $35,000,000 OF DEBT SECURITIES PREVIOUSLY REGISTERED
BUT NOT SOLD UNDER THE REGISTRANT'S REGISTRATION STATEMENT NO. 33-59675. THE
$35,000,000 OF DEBT SECURITIES REMAINING UNSOLD FROM REGISTRATION STATEMENT NO.
33-59675 IS HEREBY COMBINED WITH THE $465,000,000 OF SECURITIES REGISTERED
PURSUANT TO THIS REGISTRATION STATEMENT TO ENABLE THE REGISTRANT TO OFFER AN
AGGREGATE AMOUNT OF $500,000,000 OF SECURITIES PURSUANT TO THE COMBINED
PROSPECTUS.
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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- --------------------------------------------------------------------------------
<PAGE> 3
The information in this preliminary prospectus is not complete and may be
changed. These securities may not be sold until the registration statement filed
with the Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell nor does it seek an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION. DATED MAY 24, 1999.
$500,000,000
EG&G, INC.
Common Stock
Preferred Stock
Depositary Shares
Debt Securities
Warrants
Stock Purchase Contracts
Stock Purchase Units
------------------------
EG&G, Inc. may from time to time issue up to $500,000,000 aggregate
principal amount of common stock, preferred stock, depositary shares, debt
securities, warrants, stock purchase contracts and/or stock purchase units. The
accompanying prospectus supplement will specify the terms of the securities.
------------------------
EG&G may sell these securities to or through underwriters, and also to
other purchasers or through agents. Goldman, Sachs & Co. and Merrill Lynch & Co.
may be among these underwriters or agents. The names of the underwriters or
agents will be set forth in the accompanying prospectus supplement.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
This prospectus may not be used to consummate sales of securities unless it
is accompanied by a prospectus supplement.
GOLDMAN, SACHS & CO. MERRILL LYNCH & CO.
------------------------
Prospectus dated , 1999.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<S> <C>
About this Prospectus....................................... 2
Where You Can Find More Information......................... 2
Certain Forward-Looking Statements.......................... 3
EG&G, Inc................................................... 3
Ratios of Earnings to Fixed Charges......................... 4
Use of Proceeds............................................. 5
The Securities We May Offer................................. 5
Description of Capital Stock................................ 6
Description of Depositary Shares............................ 15
Description of Debt Securities.............................. 18
Description of Warrants..................................... 29
Description of Stock Purchase Contracts and Stock Purchase
Units..................................................... 33
Book-Entry Securities....................................... 33
Plan of Distribution........................................ 35
Validity of Securities...................................... 36
Experts..................................................... 36
</TABLE>
<PAGE> 5
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell any combination of the securities described in this prospectus in one or
more offerings up to a total dollar amount of $500,000,000. This prospectus
provides you with a general description of the securities we may offer. Each
time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. This prospectus, together with applicable prospectus supplements,
includes all material information relating to this offering.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference rooms located at:
- 450 Fifth Street, N.W.
Washington, D.C. 20549;
- 7 World Trade Center
New York, New York 10048; and
- Citicorp Center
500 West Madison Street
Chicago, Illinois 60661.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms and their copy charges.
Our common stock is listed and traded on the New York Stock Exchange. We
will refer to the New York Stock Exchange as the "NYSE" in this prospectus. You
may also inspect the information we file with the SEC at the NYSE, 20 Broad
Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
until we sell all of the securities.
- Our Annual Report on Form 10-K for the fiscal year ended January 3, 1999
filed with the SEC on March 30, 1999;
- Our Quarterly Report on Form 10-Q for the period ended April 4, 1999 (as
amended by Form 10-Q/A filed May 24, 1999);
- Our Current Reports on Form 8-K filed with the SEC on December 30, 1998
(as amended by Forms 8-K/A filed February 26, 1999, March 10, 1999 and
March 30, 1999); January 25, 1999; March 5, 1999; March 15, 1999; May 6,
1999; and May 7, 1999;
- The description of EG&G's common stock, which is contained in our
Registration Statement on Form 8-A (File No. 1-05075) filed with the SEC
on May 3, 1965, as this description may be amended from time to time; and
- The description of EG&G's preferred stock purchase rights, which is
contained in our Registration Statement on Form 8-A (File No. 1-05075)
filed with the SEC on February 9, 1995, as amended by Amendment No. 1 to
Form 8-A (File No. 1-05075) filed with the SEC on February 9, 1995, as
this description may be further amended from time to time.
Each of these documents is available from the SEC's web site and public
reference rooms described above. You may also
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<PAGE> 6
request a copy of these filings, excluding exhibits, at no cost by writing or
telephoning us at the following address:
Vice President of Investor Relations
EG&G, Inc.
45 William Street
Wellesley, Massachusetts 02481
(781) 237-5100
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information.
We are not making an offer of the securities covered by this prospectus in
any state where the offer is not permitted. You should not assume that the
information in this prospectus or any prospectus supplement is accurate as of
any date other than the date on the front of those documents.
CERTAIN FORWARD-LOOKING STATEMENTS
Certain statements in this prospectus and in the documents incorporated by
reference in this prospectus constitute "forward-looking statements" within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Exchange Act. For this purpose, any statements contained in this prospectus or
incorporated by reference in this prospectus that are not statements of
historical fact may be deemed to be forward-looking statements. Words such as
"believes," "anticipates," "plans," "expects" and similar expressions are
intended to identify forward-looking statements. There are a number of important
factors that could cause our results to differ materially from those indicated
by the forward-looking statements included or incorporated by reference in this
prospectus, including among others, the factors included in the filings and
documents incorporated by reference in this prospectus.
EG&G, INC.
EG&G is a global technology company that designs and manufactures products
for medical, aerospace, semiconductor and a wide range of other markets and
delivers skilled support services to government and industrial customers. In
1998, we had sales of $1.4 billion from continuing operations. As of May 2,
1999, EG&G and its subsidiaries employed approximately 13,000 persons.
We classify our continuing operations into five operating segments:
- LIFE SCIENCES. Our Life Sciences operating segment manufactures
instrument systems and related products used for cell and disease
research. These systems are used in university and pharmaceutical
research facilities, hospitals and clinical laboratories around the
world. In fiscal 1998, our Life Sciences operating segment had sales of
$148 million from continuing operations.
- OPTOELECTRONICS. Our Optoelectronics operating segment designs and
manufactures sensors, specialty light bulbs and optical and electronic
parts for industrial, consumer and medical applications. In fiscal 1998,
our Optoelectronics operating segment had sales of $269 million from
continuing operations.
- INSTRUMENTS. Our Instruments operating segment is a leading manufacturer
of X-ray security products, an advanced food inspection system and a wide
range of analytical instruments for process measurement, nuclear,
electrochemical and photolithography applications. In addition, our
Instruments operating segment conducts lubricant and structural testing
simulations for the transportation industry. In fiscal 1998, our
Instruments operating segment had sales of $247 million from continuing
operations.
- ENGINEERED PRODUCTS. Our Engineered Products operating segment designs
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<PAGE> 7
and manufactures advanced seals, sealing systems and devices, valves and
pneumatic systems and components to control gas, fluid and air flow. In
fiscal 1998, our Engineered Products operating segment had sales of $168
million from continuing operations.
- TECHNICAL SERVICES. Our Technical Services operating segment provides
management, engineering, scientific, technical and operations support
services to industry and government customers. In fiscal 1998, our
Technical Services operating segment had sales of $554 million from
continuing operations.
EG&G was incorporated in Massachusetts in 1947. Our principal and executive
offices are located at 45 William Street, Wellesley, Massachusetts 02481, and
our telephone number is (781) 237-5100. Our internet address is
http://www.egginc.com.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges are computed by dividing income
from continuing operations before income taxes and fixed charges, as adjusted
for certain equity method investments, by fixed charges. Fixed charges consist
of interest on all indebtedness, including capital lease obligations,
amortization of debt expenses and a percentage of rental expense of operating
leases that represents interest. Our consolidated ratios of earnings to fixed
charges for each of the periods indicated are as follows:
<TABLE>
<CAPTION>
FISCAL YEARS ENDED
--------------------------------------------------------------------
JANUARY 1, DECEMBER 31, DECEMBER 29, DECEMBER 28, JANUARY 3,
1995 1995 1996 1997 1999
---------- ------------ ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges........ --(1) 6.80x 5.14x 4.05x 9.68x
</TABLE>
- ---------------
(1) The deficiency of earnings to cover fixed charges for the fiscal year ended
January 1, 1995 was $17.4 million.
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<PAGE> 8
USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement, we
expect to use the net proceeds from the sale of the securities for general
corporate purposes, which may include, among other things:
- the repayment of outstanding indebtedness;
- working capital;
- capital expenditures;
- the repurchase of shares of common stock; and
- acquisitions.
The precise amount and timing of the application of such proceeds will depend
upon our funding requirements and the availability and cost of other funds.
THE SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus, together
with the applicable prospectus supplements, summarize all the material terms and
provisions of the various types of securities that we may offer. The particular
terms of the securities offered by any prospectus supplement will be described
in the prospectus supplement relating to the securities. If indicated in the
applicable prospectus supplement, the terms of the securities may differ from
the terms summarized below. The prospectus supplement will also contain
information, where applicable, about material United States federal income tax
considerations relating to the securities, and the securities exchange, if any,
on which the securities will be listed.
We may sell from time to time, in one or more offerings:
- common stock;
- preferred stock;
- depositary shares;
- debt securities;
- warrants to purchase any of the securities listed above;
- stock purchase contracts to purchase common stock, preferred stock or
depositary shares; and/or
- stock purchase units consisting of a stock purchase contract and either
debt securities or debt obligations of certain third parties.
In this prospectus, we will refer to the common stock, preferred stock,
depositary shares, debt securities, warrants, stock purchase contracts and stock
purchase units collectively as "securities." The total dollar amount of all
securities that we may issue will not exceed $500,000,000.
If we issue debt securities at a discount from their original stated
principal amount, then, for purposes of calculating the total dollar amount of
all securities issued under this prospectus, we will treat the initial offering
price of the debt securities as the total original principal amount of the debt
securities.
This prospectus may not be used to consummate a sale of securities unless
it is accompanied by a prospectus supplement.
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<PAGE> 9
DESCRIPTION OF CAPITAL STOCK
The following description of our common stock and preferred stock, together
with the additional information included in any applicable prospectus
supplements, summarizes the material terms and provisions of these types of
securities. For the complete terms of our common stock and preferred stock,
please refer to our charter, bylaws and stockholder rights plan that are
incorporated by reference into the registration statement which includes this
prospectus. The terms of these securities may also be affected by the
Massachusetts General Laws. While the terms summarized below will apply
generally to any future common stock or preferred stock that we may offer, the
particular terms of any series of these securities will be described in more
detail in the applicable prospectus supplement and may vary from the terms
summarized below.
Under our charter our authorized capital stock consists of 100,000,000
shares of common stock, $1.00 par value per share, and 1,000,000 shares of
preferred stock, $1.00 par value per share. We will describe the specific terms
of any common stock or preferred stock we may offer in a prospectus supplement.
If indicated in a prospectus supplement, the terms of any common stock or
preferred stock offered under that prospectus supplement may differ from the
terms described below.
COMMON STOCK
As of May 2, 1999, EG&G had 45,216,000 shares of common stock issued and
outstanding. Each outstanding share of common stock currently has attached to it
one preferred share purchase right issued under our stockholder rights plan,
which is summarized below. All outstanding shares of common stock are duly
authorized, validly issued, fully paid and nonassessable.
VOTING
For all matters submitted to a vote of stockholders, each holder of common
stock is entitled to one vote for each share registered in his or her name on
the books of EG&G. Our common stock does not have cumulative voting rights. As a
result, subject to the voting rights of any outstanding preferred stock, of
which there currently is none, persons who hold more than 50% of the outstanding
common stock entitled to elect members of the board of directors can elect all
of the directors who are up for election in a particular year.
DIVIDENDS
If our board of directors declares a dividend, holders of common stock will
receive payments from the funds of EG&G that are legally available to pay
dividends. However, this dividend right is subject to any preferential dividend
rights we may grant to the persons who hold preferred stock, if any is
outstanding.
LIQUIDATION
If EG&G is dissolved, the holders of common stock will be entitled to share
ratably in all the assets that remain after we pay our liabilities and any
amounts we may owe to the persons who hold preferred stock, if any is
outstanding.
OTHER RIGHTS AND RESTRICTIONS
Holders of common stock do not have preemptive rights, and they have no
right to convert their common stock into any other securities. Our common stock
is not subject to redemption by EG&G. Our charter and bylaws do not restrict the
ability of a holder of common stock to transfer his or her shares of common
stock.
When we issue shares of common stock, the shares will be fully paid and
non-assessable. Massachusetts law provides that, if we make a distribution to
our stockholders other than a distribution of our capital stock, when we are
insolvent, or that renders us insolvent, then our stockholders would be required
to pay back to us the amount of the distribution we made to them, or the portion
of the distribution that causes us to become insolvent.
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LISTING
Our common stock is listed on the NYSE.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is Boston EquiServe,
L.P.
PREFERRED STOCK
As of May 2, 1999, we had no shares of preferred stock outstanding. Our
charter authorizes our board of directors to issue preferred stock in one or
more series and to determine the voting rights and dividend rights, dividend
rates, liquidation preferences, conversion rights, redemption rights, including
sinking fund provisions and redemption prices, and other terms and rights of
each series of preferred stock. The general terms of our undesignated preferred
stock are described below under the caption "-- Undesignated Preferred Stock."
As of the date of this prospectus, our board of directors had designated
70,000 shares of preferred stock as "Series C Junior Participating Preferred
Stock" in connection with our stockholder rights plan. The rights, preferences
and privileges of the Series C Preferred Stock are described below.
SERIES C PREFERRED STOCK
Our Board has reserved the Series C Preferred Stock for issuance in
connection with our stockholder rights plan, which is described below. As of
March 5, 1999, there were no shares of Series C Preferred Stock outstanding. The
following description is a summary of all the material terms of our Series C
Preferred Stock. It does not restate these terms in their entirety. We urge you
to read our charter because it, and not this description, defines the rights of
holders of Series C Preferred Stock. We have filed a copy of our charter as an
exhibit to the registration statement which includes this prospectus. This
summary of our Series C Preferred Stock is not complete and is qualified by
reference to our charter.
VOTING. Each share of Series C Preferred Stock is entitled to 1,000 votes,
subject to adjustment. Except as provided below, each share of Series C
Preferred Stock votes together with the holders of common stock and all other
capital stock of EG&G on all matters voted on by stockholders.
In the event that we fail to pay six quarterly dividends on the Series C
Preferred Stock, the holders of the Series C Preferred Stock, voting as a single
class, will have the right to elect two members of our board of directors. Any
director elected by the holders of Series C Preferred Stock may be removed with
or without cause by such holders. The terms of all directors elected under this
provision will terminate when the dividend arrearage is fully paid and, in
addition, we have paid at least one regular dividend after the curing of the
arrearage.
Without the vote of at least two-thirds of the outstanding shares of Series
C Preferred Stock, we may not alter or repeal any provisions in our charter so
as to adversely affect the rights of the Series C Preferred Stock.
DIVIDENDS. With respect to the payment of dividends and the distribution
of assets, the Series C Preferred Stock ranks junior to all series of all other
series of preferred stock, unless the terms of a particular series provide
otherwise. The holders of shares of Series C Preferred Stock are entitled to
cash dividends equal to the greater of (a) $1.00 or (b) 1,000 times the per
share amount of all cash dividends and 1,000 times the per share amount of all
non-cash dividends, other than dividends payable in common stock or by a
subdivision of the outstanding common stock, which have been declared on the
common stock since the preceding quarterly dividend payment date. Dividends on
the Series C Preferred Stock are payable quarterly on the first day of March,
June, September and December each year.
Our board of directors must declare a dividend on the Series C Preferred
Stock after it declares any dividend on the common stock, other than dividends
payable in common stock. However, if our board of directors does not declare a
dividend on the common stock during the period between quarterly dividend
payment dates, a dividend
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of $1.00 per share of Series C Preferred Stock will still be payable on the
following quarterly dividend payment date. Dividends begin to accrue and
accumulate on outstanding shares of Series C Preferred Stock from the quarterly
dividend payment date preceding the date of issuance of such shares.
LIQUIDATION. If EG&G liquidates, dissolves or winds up, then:
- we must pay the holders of outstanding shares of Series C Preferred
Stock, before we make any payment to the holders of shares of stock
ranking junior to the Series C Preferred Stock, an amount equal to $1,000
per share, plus all unpaid accrued dividends or, if greater, an amount
equal to 1,000 times the amount to be paid to holders of common stock;
and
- we may not make any distribution to the holders of shares of stock
ranking on a parity with the Series C Preferred Stock, except for
distributions made ratably to the holders of Series C Preferred Stock and
other preferred stocks.
For purposes of this liquidation preference, neither the consolidation,
merger or other business combination of EG&G with another entity nor the sale of
all or any of our property, assets or business will be treated as a liquidation,
dissolution or winding up of EG&G.
MERGER, CONSOLIDATION, ETC. If we are a party to any merger, consolidation
or similar transaction in which shares of common stock are exchanged or changed
into stock or securities of another entity, cash or property of another entity,
then the Series C Preferred Stock will be exchanged or changed into an amount
per share equal to 1,000 times the amount of consideration into which or for
which each share of common stock is changed or exchanged in such merger,
consolidation or similar transaction.
ADJUSTMENTS FOR STOCK SPLITS AND OTHER EVENTS. In the event that we declare
a dividend on our common stock that is payable in common stock or we effect a
subdivision, combination or consolidation of the outstanding shares of our
common stock into a greater or lesser number of shares, then the dividend,
liquidation and merger or consolidation amounts payable to holders of Series C
Preferred Stock will be increased or reduced in proportion to the resulting
increase or decrease in the total number of shares of common stock outstanding.
CERTAIN RESTRICTIONS. If any quarterly dividends payable on the Series C
Preferred Stock are in arrears, then, until all of these unpaid dividends have
been paid in full, we may not:
- declare or pay dividends on any shares of stock ranking junior to the
Series C Preferred Stock;
- declare or pay any dividends on any shares of stock ranking on a parity
with the Series C Preferred Stock, except ratably among all of these
parity stocks;
- redeem any stock ranking junior to the Series C Preferred Stock, unless
we redeem the junior stock by issuing additional shares of stock ranking
junior to the Series C Preferred Stock; or
- redeem any shares of Series C Preferred Stock or shares of stock ranking
on a parity with the shares of Series C Preferred Stock, except in
accordance with a purchase offer to all holders of these series or
classes upon terms that the board of directors deems fair and equitable.
We may not permit any of our subsidiaries to purchase any shares of EG&G
stock, unless we are able at such time to purchase shares in accordance with the
terms described in the preceding paragraph.
REDEMPTION. We may not redeem the Series C Preferred Stock.
FRACTIONAL SHARES. We may issue the Series C Preferred Stock in fractions
of a single share, but each fraction must be a multiple of one one-thousandth of
a share. Each fractional share of Series C Preferred Stock will have
proportionate voting, dividend,
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<PAGE> 12
liquidation and other rights as discussed above.
UNDESIGNATED PREFERRED STOCK
This summary of the undesignated preferred stock relates to terms and
conditions that we expect will apply to all series of the preferred stock
offered under this prospectus. The applicable prospectus supplement will
describe the particular terms of any series of preferred stock offered. If
indicated in the prospectus supplement, the terms of any series may differ from
the terms described below.
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of any preferred
stock being offered by this prospectus. It does not restate the terms and
provisions in their entirety. We urge you to read our charter and the applicable
certificate of designation because they, and not this description, define the
rights of any holders of preferred stock. We have filed our charter as an
exhibit to the registration statement which includes this prospectus. We will
incorporate by reference as an exhibit to the registration statement the form of
any certificate of designations before the issuance of any series of preferred
stock.
GENERAL. The applicable prospectus Supplement will describe the following
terms of each series of preferred stock:
- the designation of the series and the number of shares offered;
- the amount of the liquidation preference per share;
- the initial public offering price of the shares to be sold;
- the dividend rate applicable to the series, the dates on which dividends
will be payable and the dates from which dividends will begin to
accumulate, if any;
- any redemption or sinking fund provisions;
- any conversion or exchange rates;
- any antidilution provisions;
- any additional voting and other rights, preferences, privileges and
restrictions;
- any listing of the series on an exchange;
- the relative ranking of the series as to dividend rights and rights upon
liquidation, dissolution or winding up of EG&G; and
- any other terms of the series.
Upon receipt of the purchase price, the shares of preferred stock that we
issue will be fully paid and nonassessable. The liquidation price or preference
of any series of preferred stock is not indicative of the price at which the
shares will actually trade after the date of issuance.
Although our board of directors has no intention at the present time of
doing so, it could issue a series of preferred stock that could impede the
completion of a merger, tender offer or other takeover attempt. Our board of
directors will issue preferred stock under these circumstances only if it
determines that the issuance is in the best interests of EG&G and its
stockholders. In addition, the terms of a series of preferred stock might
discourage a potential acquiror from attempting to acquire EG&G in a manner that
changes the composition of our board of directors, even when a majority of our
stockholders believe that an acquisition under these circumstances would be in
their best interests or when stockholders would receive a premium for their
stock over the then current market price.
The NYSE currently requires us to obtain the approval of our stockholders
before listing securities for trading on the NYSE under some circumstances,
including:
- some issuances to our directors, officers, substantial security holders
and other closely-related parties;
- issuances relating to a private sale of our common stock at a price below
the book or fair market value of our common stock that increase the total
number of shares of our common stock outstanding by 20% or more; and
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- issuances that will result in a change of control of EG&G.
VOTING. Except as described below, no series of preferred stock will have
voting rights. Under Massachusetts law, however, a holder of our capital stock
is generally entitled to vote whenever an amendment of our charter would
adversely affect the rights of the class of securities held by the holder. If we
wish to amend our charter and the amendment would adversely affect the rights of
a particular class or series of our capital stock, we would be required to
obtain the affirmative vote of at least two-thirds of the shares of that class
or series. Under these circumstances, all series of a class of capital stock
that are adversely affected in the same manner vote together as one class, and
any other series that is adversely affected in a different manner votes as a
separate class.
Without the vote of the holders of two-thirds of the then outstanding
shares of a series of preferred stock voting as a single class together with the
holders of shares of all other series of preferred stock entitled to vote on the
following matters, we may not:
- authorize or issue any shares of a class or series of stock ranking
senior to the series of preferred stock; or
- approve any amendment to our charter or applicable certificate of
designations, which would materially and adversely affect the series of
preferred stock.
An amendment which (a) increases the number of authorized shares or
authorizes the creation or issuance of any stock ranking junior to or on a
parity with such series of preferred stock, or (b) reflects a change in control
of EG&G in which EG&G is not the surviving entity, will not be deemed to
materially and adversely affect such series of preferred stock.
In addition, if six quarterly dividend payments on a series of preferred
stock have accrued but remain unpaid, then the holders of this series of
preferred stock:
- will have one vote per share; and
- will have the right, voting together as a single class with the holders
of shares of all other series of preferred stock entitled to vote for the
election of directors, other than the Series C Preferred Stock, to elect
two members to our board of directors.
This voting right will continue until dividends on this series of preferred
stock have been paid in full for four consecutive dividend periods. Directors
elected in this fashion will hold office for a term expiring on the earlier of
the payment by EG&G of dividends on this series of preferred stock for four
consecutive dividend periods or the next annual meeting of stockholders.
As described below under the caption "Description of Depositary Shares," if
EG&G elects to issue depositary shares, each depositary share will, in effect,
be entitled to a fraction of a vote per depositary share.
RANK. Each series of preferred stock will, with respect to dividend and
liquidation rights, rank senior to common stock and the Series C Preferred
Stock. All shares of each series of preferred stock will be of equal rank with
each other. Each series of preferred stock may vary as to rank and priority with
other series of preferred stock.
DIVIDENDS. Holders of each series of preferred stock will be entitled to
receive, if declared by our board of directors, cash dividends, payable on the
dates and at the rates as described in the applicable prospectus supplement.
Dividends will be cumulative and will accrue from the date stated in the
applicable prospectus supplement.
No dividends may be declared or paid on a series of preferred stock ranking
on a parity with or junior to the series of preferred stock offered by the
applicable prospectus supplement for any period unless dividends have been or
are at the same time declared and paid on the offered series of preferred stock.
Any dividend paid on a series of preferred stock and any other parity preferred
stock in an amount that is less than the full amount of the dividend entitled to
be received by this series of preferred stock and other parity preferred stock
will be paid ratably among all holders of this series of preferred
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stock and parity preferred stock. We will not pay any interest on any dividends
that are in arrears.
If we have not paid dividends in full on the series of preferred stock
offered by the applicable prospectus supplement, then we may not:
- declare or pay cash dividends on any junior stock, including common stock
and Series C Preferred Stock;
- repurchase or redeem any shares of junior stock or pay any monies into a
sinking fund for the redemption of any of these shares, unless we convert
or exchange the repurchased or redeemed stock for junior stock; or
- repurchase or redeem any series of preferred stock ranking on a parity
with the offered series of preferred stock or pay any monies into a
sinking fund for the redemption of any of these shares, unless we (a)
repurchase or redeem on a pro rata basis all or a part of the outstanding
parity preferred stock or (b) convert or exchange the redeemed or
repurchased stock for junior stock.
Any dividend payment made on a series of preferred stock will first be
credited against the earliest accrued but unpaid dividends due on the series.
LIQUIDATION. Unless otherwise specified in the applicable prospectus
supplement, if EG&G liquidates, dissolves or winds up, then the holders of a
series of preferred stock will be entitled to receive, subject to the rights of
creditors, but before any payment to the holders of common stock or any other
junior stock, an amount equal to the liquidation preference per share described
in the applicable prospectus supplement. In addition to this liquidation
preference, holders of preferred stock will also be entitled to receive accrued
and unpaid dividends on their shares of preferred stock, if such dividends are
cumulative.
If the amounts available for distribution upon liquidation, dissolution or
winding up of EG&G are not sufficient to satisfy the full liquidation rights of
all outstanding series of preferred stock and all stock ranking on a parity with
this preferred stock, then the holders of each series of stock will share
ratably in the distribution, which, in the case of preferred stock, may include
a cumulative dividend.
After payment of the full amount of the liquidation preference, the holders
of a series of preferred stock will not be entitled to any further participation
in the distribution of assets by EG&G.
CONVERSION OR EXCHANGE. The terms, if any, on which preferred stock of any
series may be converted or exchanged for another class or series of securities
will be described in the applicable prospectus supplement.
REDEMPTION. The applicable prospectus supplement will describe the terms,
if any, on which we may redeem any series of preferred stock. We will cancel all
redeemed or repurchased shares of a series of preferred stock and restore these
shares to the status of authorized but unissued shares of preferred stock.
OTHER RIGHTS. The applicable prospectus supplement will describe any other
preferences, voting powers or relative participating, optional or other special
rights of a series of preferred stock. The holders of preferred stock will not
have any preemptive rights to subscribe for any securities of EG&G.
TITLE. EG&G, the transfer agent and registrar for a series of preferred
stock and any agent of EG&G or such transfer agent and registrar may treat the
registered owner of preferred stock of the series as the absolute owner of the
preferred stock for all purposes.
TRANSFER AGENT AND REGISTRAR. The applicable prospectus supplement will
name the transfer agent and registrar for each series of preferred stock.
STOCKHOLDER RIGHTS PLAN
On January 25, 1995, our board of directors adopted a stockholder rights
plan. Under our stockholder rights plan, each of our common stockholders
received a dividend
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of one "preferred stock purchase right" for each outstanding share of common
stock that the stockholder owned. We refer to these preferred stock purchase
rights as the "Rights." The Rights trade automatically with our shares of common
stock and become exercisable only under certain circumstances described below.
The purpose of the Rights is to encourage potential acquirors to negotiate
with our board of directors before attempting a takeover bid and to provide our
board of directors with leverage in negotiating on behalf of our stockholders
the terms of any proposed takeover. The Rights may have certain antitakeover
effects. They should not, however, interfere with any merger or other business
combination approved by our board of directors.
The following description is a summary of all the material terms of our
stockholder rights plan. It does not restate these terms in their entirety. We
urge you to read our stockholder rights plan because it, and not this
description, defines the terms and provisions of our plan. We have filed a copy
of our rights agreement as an exhibit to our Registration Statement on Form 8-A,
as amended, which was filed with the SEC on February 9, 1995 and which is
incorporated by reference into the registration statement which includes this
prospectus. You may obtain a copy at no charge by writing to us at the address
listed under the caption "Where You Can Find More Information."
EXERCISE OF RIGHTS
Until a Right is exercised, the holder of a Right will not have any rights
as a stockholder. When the Rights become exercisable, holders of the Rights will
be able to purchase from us a unit equal to 1/1000th of a share of our Series C
Preferred Stock, at a purchase price of $60 per unit.
In general, the rights will become exercisable upon the earlier of:
- ten days following a public announcement by us that a person or group has
acquired beneficial ownership of 20% or more of the outstanding shares of
common stock; or
- ten business days after the beginning of a tender offer or exchange offer
that would result in a person or group beneficially owning 30% or more of
the common stock.
FLIP IN EVENT
If a person or group becomes the beneficial owner of 20% or more of our
common stock, then each Right will then entitle its holder to receive, upon
exercise, a number of shares of our common stock which is equal to (a) the
exercise price of the right divided by (b) one-half of the market price of our
common stock on the date of the occurrence of this event. We refer to this
occurrence as a "flip in event." A flip in event does not occur if there is an
offer for all of our outstanding shares of common stock that our board of
directors determines is fair to our stockholders and in EG&G's best interests.
FLIP OVER EVENT
If at any time after a person or group becomes the beneficial owner of 20%
or more of our common stock, (a) EG&G is acquired in a merger or other
transaction in which EG&G does not survive or in which our common stock is
changed or exchanged or (b) 50% or more of EG&G's assets or earning power is
sold or transferred, then each holder of a Right will be entitled to receive,
upon exercise, a number of shares of common stock of the acquiring company in
the transaction equal to (1) the exercise price of the Right divided by (2)
one-half of the market price of the acquiring company's common stock on the date
of the occurrence of this event. This exercise right will not occur if the
merger or other transaction follows an offer for all of our outstanding shares
of common stock that our board of directors determines is fair to our
stockholders and in EG&G's best interests.
EXCHANGE OF RIGHTS
At any time after a flip in event, our board of directors may exchange the
Rights by
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providing to the holder one share of our common stock or one one-thousandth of a
share of our Series C Preferred Stock for each of the holder's Rights.
REDEMPTION OF RIGHTS
At any time until ten days after the date on which a person or group
acquires beneficial ownership of 20% or more of the outstanding shares of our
common stock, we may redeem the Rights at a price of $.01 per Right. The Rights
will expire on the close of business on February 8, 2005, subject to earlier
expiration or termination as described in our stockholder rights plan.
CERTAIN PROVISIONS OF EG&G'S
BYLAWS AND MASSACHUSETTS LAW
EG&G'S BYLAWS
EG&G's bylaws impose restrictions and limitations on the ability of
stockholders to call special meetings of stockholders. For example, requests for
stockholder meetings may be made only during limited periods of time and must be
made by a group of stockholders holding at least 40%, or, if less, the maximum
percentage permitted by law, of the outstanding capital stock entitled to vote
at the meeting.
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Massachusetts General Laws contain antitakeover provisions regarding,
among other things, business combinations with an affiliated stockholder. In
general, the Massachusetts General Laws prevent a publicly held Massachusetts
corporation from engaging in a "business combination" as defined in the
Massachusetts General Laws with an "interested stockholder" for a period of
three years after the date of the transaction in which the person became an
interested stockholder, unless:
- before the date on which the person became an interested stockholder, the
board of directors of the corporation approved either the business
combination or the transaction in which the person became an interested
stockholder;
- the interested stockholder acquires 90% of the outstanding voting stock
of the corporation at the time it becomes an interested stockholder; or
- the business combination is approved by the board of directors and the
holders of two-thirds of the outstanding voting stock of the corporation
voting at a meeting, excluding the voting stock owned by the interested
stockholder.
An "interested stockholder" is generally a person owning more than 5% of the
outstanding voting stock of the corporation. A business combination includes
mergers, consolidations, stock and assets sales and other transactions with the
interested stockholder which result in a financial benefit to the interested
stockholder.
CONTROL SHARE ACQUISITIONS
EG&G has elected to opt out of the control share acquisitions provision of
the Massachusetts General Laws. EG&G could, however, opt into these control
share acquisitions provisions at any time by amending its bylaws.
In general, the control share acquisitions provision of the Massachusetts
General Laws provides that any person, including his or her affiliates, who
acquires shares of a corporation that is subject to the control share
acquisitions statute and whose shares represent one-fifth or more, one-third or
more, or a majority or more of the voting power of the corporation in the
election of directors cannot exercise any voting power with respect to those
shares, or any shares acquired by the person within 90 days before or after an
acquisition of this nature, unless these voting rights are authorized by the
stockholders of the corporation.
The authorization of voting rights requires the affirmative vote of the
holders of a
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majority of the outstanding voting shares, excluding shares owned by:
- the person making an acquisition of this nature;
- any officer of the corporation; and
- any employee who is also a director of the corporation.
There are several other types of share acquisitions that are not subject to
this provision of the Massachusetts General Laws, including acquisitions of
shares (a) under a tender offer, merger or consolidation which is made in
connection with an agreement to which the corporation is a party and (b)
directly from the corporation or a wholly owned subsidiary of the corporation.
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DESCRIPTION OF DEPOSITARY SHARES
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of the depositary
shares that we may offer under this prospectus and the related deposit
agreements and depositary receipts. Specific deposit agreements and depositary
receipts will contain additional important terms and provisions and will be
incorporated by reference into the registration statement which includes this
prospectus before we issue any depositary shares.
This summary of depositary agreements, depositary shares and depositary
receipts relates to terms and conditions applicable to these types of securities
generally. The particular terms of any series of depositary shares will be
summarized in the applicable prospectus supplement. If indicated in the
applicable prospectus supplement, the terms of any series may differ from the
terms summarized below.
GENERAL
We may elect to offer fractional shares of preferred stock rather than full
shares of preferred stock. If so, we will issue "depositary receipts" for these
"depositary shares." Each depositary share will represent a fraction of a share
of a particular series of preferred stock. Each holder of a depositary share
will be entitled, in proportion to the fraction of preferred stock represented
by that depositary share, to the rights and preferences of the preferred stock,
including dividend, voting, redemption, conversion and liquidation rights. We
will enter into a deposit agreement with a depositary, which will be named in
the related prospectus supplement.
In order to issue depositary shares, we will issue preferred stock and
immediately deposit these shares with the depositary. The depositary will then
issue and deliver depositary receipts to the persons who purchase depositary
shares. Each whole depositary share issued by the depositary may represent a
fraction of a share of preferred stock held by the depositary. The depositary
will issue depositary receipts in a form that reflects whole depositary shares,
and each depositary receipt may evidence any number of whole depositary shares.
Pending the preparation of definitive engraved depositary receipts, a
depositary may, upon our written order, issue temporary depositary receipts,
which will temporarily entitle the holders to all the rights pertaining to the
definitive depositary receipts. We will bear the costs and expenses of promptly
preparing definitive depositary receipts and of exchanging the temporary
depositary receipts for such definitive depositary receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash and non-cash distributions it
receives with respect to the underlying preferred stock to the record holders of
depositary shares in proportion to the number of depositary shares they hold. In
the case of non-cash distributions, the depositary may determine that the
distribution cannot be made proportionately or that it may not be feasible to
make the distribution. If so, the depositary will, with our approval, adopt a
method it deems equitable and practicable to effect the distribution, including
the sale, public or private, of the securities or other non-cash property it
receives in the distribution at a place and on terms it deems proper. The
amounts distributed by the depositary will be reduced by any amount required to
be withheld by EG&G or the depositary on account of taxes.
REDEMPTION OF DEPOSITARY SHARES
If we redeem the series of preferred stock that underlies the depositary
shares, the depositary will redeem the depositary shares from the proceeds it
receives from the redemption of the preferred stock it holds. The depositary
will redeem the number of depositary shares that represent the amount of
underlying preferred stock that we have redeemed. The redemption price for
depositary shares will be in proportion to the redemption price per share that
we paid for the underlying preferred stock. If we redeem
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less than all of the depositary shares, the depositary will select which
depositary shares to redeem by lot, or some substantially equivalent method.
After a redemption date is fixed, the depositary shares to be redeemed no
longer will be considered outstanding. The rights of the holders of the
depositary shares will cease, except for the rights to receive money or other
property upon redemption. In order to redeem their depositary shares, holders
will surrender their depositary receipts to the depositary. If we deposit funds
with the depositary to redeem depositary shares, and the holders fail to redeem
their depositary receipts, the depositary will return the money to us within two
years from the date on which we deposited the funds.
VOTING THE PREFERRED STOCK
We will notify the depositary about any meeting at which the holders of
preferred stock are entitled to vote, and the depositary will mail the
information to the record holders of depositary shares related to that preferred
stock. Each record holder of depositary shares on the record date will be
entitled to instruct the depositary on how to vote the shares of preferred stock
represented by that holder's depositary shares. The depositary will vote the
preferred stock represented by the depositary shares in accordance with these
instructions, provided the depositary receives these instructions sufficiently
in advance of the meeting. If the depositary does not receive instructions from
the holders of the depositary shares, the depositary will abstain from voting
the preferred stock that underlies those depositary shares.
WITHDRAWAL OF PREFERRED STOCK
When a holder surrenders depositary receipts at the corporate trust office
of the depositary, and pays any necessary taxes, charges or other fees, the
holder will be entitled to receive the number of whole shares of the related
series of preferred stock, and any money or other property, if any, represented
by the holder's depositary shares. Once a holder exchanges depositary shares for
whole shares of preferred stock, that holder cannot "re-deposit" these shares of
preferred stock with the depositary, or exchange them for depositary shares. If
a holder delivers depositary receipts that represent a number of depositary
shares that exceeds the number of whole shares of related preferred stock the
holder seeks to withdraw, the depositary will issue a new depositary receipt to
the holder that evidences the excess number of depositary shares.
AMENDMENT AND TERMINATION OF THE
DEPOSIT AGREEMENT
EG&G and the depositary can agree, at any time, to amend the form of
depositary receipt and any provisions of the deposit agreement. However, if an
amendment has a material adverse effect on the rights of the holders of related
depositary shares, the holders of at least a majority of the depositary shares
then outstanding must first approve the amendment. Every holder of a depositary
receipt at the time an amendment becomes effective will be bound by the amended
deposit agreement. However, subject to any conditions in the deposit agreement
or applicable law, no amendment can impair the right of any holder of a
depositary share to receive shares of the related preferred stock, or any money
or other property represented by the depositary shares, when they surrender
their depositary receipts.
We can terminate the deposit agreement at any time, as long as we provide
at least 60 days' prior written notice to the depositary. If we terminate the
deposit agreement, then within 30 days from the date the depositary receives our
notice, the depositary will deliver whole or fractional shares of the related
preferred stock to the holders of depositary shares, when they surrender their
depositary receipts. The deposit agreement will terminate automatically after
all outstanding depositary shares have been redeemed, or, in connection with any
liquidation, dissolution or winding up of EG&G, after the final distribution of
our assets has been made to the holders of the related series of preferred stock
and, in turn, to the holders of depositary shares.
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CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and the government charges that
relate solely to the depositary arrangements. We will also pay the charges of
each depositary, including charges in connection with the initial deposit of the
related series of preferred stock, the initial issuance of the depositary
shares, and all withdrawals of shares of the related series of preferred stock.
However, holders of depositary shares will be required to pay transfer and other
taxes and government charges, as provided in the deposit agreement.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering written notice of its
decision to us. We may remove the depositary at any time. Any resignation or
removal will take effect when we appoint a successor depositary. We must appoint
the successor depositary within 60 days after delivery of the notice of
resignation or removal. The successor depositary must be a bank or trust
corporation that has its principal office in the United States and has a
combined capital and surplus of at least $50,000,000.
MISCELLANEOUS
We will be required to furnish certain information to the holders of the
preferred stock underlying any depositary shares. The depositary, as the holder
of the underlying preferred stock, will forward any report or information it
receives from us to the holders of depositary shares.
Neither the depositary nor EG&G will be liable if its ability to perform
its obligations under the deposit agreement is prevented or delayed by law or
any circumstance beyond its control. Both EG&G and the depositary will be
obligated to use their best judgment and to act in good faith in performing
their duties under the deposit agreement. Each of EG&G and the depositary will
be liable only for gross negligence and willful misconduct in performing their
duties under the deposit agreement. They will not be obligated to appear in,
prosecute or defend any legal proceeding with respect to any depositary
receipts, depositary shares or preferred stock unless they receive what they, in
their sole discretion, determine to be a satisfactory indemnity from one or more
holders of the depositary shares. EG&G and the depositary will evaluate any
proposed indemnity in order to determine whether the financial protection
afforded by the indemnity is sufficient to reduce each party's risk to a
satisfactory and customary level. EG&G and the depositary may rely on the advice
of legal counsel or accountants of their choice. They may also rely on
information provided by persons they believe, in good faith, to be competent,
and on documents they believe, in good faith, to be genuine.
The applicable prospectus supplement will identify the depositary's
corporate trust office. Unless the prospectus supplement indicates otherwise,
the depositary will act as transfer agent and registrar for depositary receipts,
and if we redeem shares of preferred stock, the depositary will act as
redemption agent for the corresponding depositary receipts.
TITLE
EG&G, each depositary and any agent of EG&G or the applicable depositary
may treat the registered owner of any depositary share as the absolute owner of
the depositary shares for all purposes, including making payment, regardless of
whether any payment in respect of such depositary share is overdue and
regardless of any notice to the contrary. See "Book-Entry Securities" below.
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DESCRIPTION OF DEBT SECURITIES
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of the debt
securities that we may offer under this prospectus and the related trust
indentures. The indentures under which debt securities will be issued contain
additional important terms and provisions and are filed as exhibits to the
registration statement which includes this prospectus.
This summary of the indentures and the debt securities relates to terms and
conditions applicable to the debt securities generally. The particular terms of
any series of debt securities will be summarized in the applicable prospectus
supplement. If indicated in the prospectus supplement, the terms of any series
may differ from the terms summarized below.
GENERAL
Senior debt securities will be issued under a senior indenture to be
entered into by EG&G and The First National Bank of Chicago, as the senior
trustee. Subordinated debt securities will be issued under a subordinated
indenture to be entered into by EG&G and The First National Bank of Chicago, as
the subordinated trustee.
We conduct certain of our operations through our subsidiaries. Our rights
and the rights of our creditors, including holders of debt securities, to the
assets of any subsidiary of ours upon that subsidiary's liquidation or
reorganization or otherwise would be subject to the prior claims of that
subsidiary's creditors, except to the extent that we may be a creditor with
recognized claims against the subsidiary. Our subsidiaries' creditors would
include trade creditors, debt holders, secured creditors and taxing authorities.
Neither the debt securities nor the indentures restrict us or any of our
subsidiaries from incurring indebtedness.
The indentures do not limit the aggregate principal amount of debt
securities we may issue. We may issue debt securities under the indentures from
time to time in one or more series. Unless otherwise specified in a prospectus
supplement:
- debt securities will be unsecured obligations of EG&G;
- senior debt securities will rank equally with all other unsecured and
unsubordinated indebtedness of EG&G; and
- subordinated debt securities will be subordinate, in right of payment, to
all senior debt, which is described below under "-- Subordination of
Subordinated Debt Securities."
EG&G will maintain an office or agency in the City of New York and at such
other locations as it sees fit, which will be responsible for all payments of
principal of, and premium, if any, and interest on, the debt securities and the
registration of all transfers of debt securities.
Unless the applicable prospectus supplement otherwise provides, we will
issue debt securities only in fully registered form without coupons and in
denominations of $1,000 or multiples of that amount. As described under
"Book-Entry Securities" below, the debt securities may be issued in the form of
one or more "book-entry securities" that will be deposited with or on behalf of
a depositary. The depositary must be a clearing agent registered under the
Exchange Act. No service charge will be made for any registration of transfer or
exchange of debt securities, but we may require payment of a sum sufficient to
cover any tax or other governmental charge imposed in connection with the
transfer or exchange.
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The applicable prospectus supplement will describe the following terms of
the debt securities to be offered:
- the title of the debt securities;
- any limit on the aggregate principal amount of the debt securities;
- the person or entity to whom any interest will be payable, if that person
or entity is not the registered owner of the debt securities;
- the date or dates on which the principal of and premium, if any, on the
debt securities is payable or the method of determining such date or
dates;
- the rates, which may be fixed or variable, per annum at which the debt
securities will bear interest, if any, and the date or dates from which
interest, if any, will accrue;
- the dates on which interest, if any, on the debt securities will be
payable, and the regular record dates for interest payment dates or the
method for determining these dates;
- the place or places where the principal of, and premium, if any, and
interest on, the debt securities will be payable;
- any mandatory or optional sinking fund or similar provisions or
provisions for mandatory redemption or redemption at the option of the
holder;
- the period or periods within which or the date, if any, after which and
the price or prices at which the debt securities may, in accordance with
any optional or mandatory redemption provisions, be redeemed and the
other terms of any such redemption provision;
- if other than denominations of $1,000 or any multiple of that amount, the
denominations in which the debt securities will be issuable;
- if other than the full principal amount of the debt securities, the
portion of the principal amount of the debt securities which will be
payable upon the declaration of acceleration of the maturity thereof;
- the currency of payment of principal of, and premium, if any, and
interest on, the debt securities;
- any index, formula or other method used to determine the amount of
payment of principal of, and premium, if any, and interest on, the debt
securities;
- the applicability of the provisions described below under "-- Defeasance
of Debt Securities or Certain Covenants in Certain Circumstances," and
the conditions under which these provisions will apply;
- any additional, modified or different covenants applicable to the debt
securities;
- in the case of the subordinated debt securities, the applicability of the
provisions described below under "-- Conversion or Exchange of Debt
Securities;"
- if the debt securities will be issuable only in the form of a global
security as described below under "Book-Entry Debt Securities," the
depositary or its nominee for the debt securities and the circumstances
under which the global security may be registered for transfer or
exchange in the name of a person other than the depositary or its
nominee;
- any event of default with respect to the debt securities of such series,
in addition to ones set forth in the applicable indenture; and
- any other terms of the debt securities.
The debt securities may be offered and sold at a substantial discount below
their stated principal amount. The applicable prospectus supplement will
describe federal income tax consequences and other special considerations
applicable to any such original issue discount debt securities. "Original issue
discount debt securities" means any debt
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security which provides for an amount less than the principal amount of the debt
security to be due and payable upon the declaration of acceleration of the
maturity of the debt security upon the occurrence of an event of default and the
continuation of such event of default.
We may also offer indexed debt securities under this prospectus. "Indexed
debt securities" are debt securities having a principal amount payable upon
maturity that is more or less than the original principal amount of such debt
securities at the time of issuance.
If the purchase price of any of the debt securities is payable in one or
more foreign currencies or currency units, any debt securities are denominated
in one or more foreign currencies or currency units, or the principal of, and
premium, if any, or interest, if any, on, any debt securities is payable in one
or more foreign currencies or currency units, then the restrictions, elections,
material U.S. federal income tax considerations and other information with
respect to the debt securities and the foreign currency or currency units will
be described in the applicable prospectus supplement.
If any index is used to determine the amount of payments of principal of,
or premium, if any, or interest, if any, on, any series of debt securities, then
the material U.S. Federal income tax, accounting and other considerations
applicable to the use of the index will be described in the applicable
prospectus supplement.
SUBORDINATION OF SUBORDINATED
DEBT SECURITIES
Under the subordinated indenture, the payment of the principal of, premium,
if any, and interest on, and any payments on the repurchase of, subordinated
debt securities will be subordinated in right of payment to all senior debt.
If EG&G pays or distributes its assets to creditors upon a liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshalling of assets or any bankruptcy, insolvency or similar
proceedings, then the holders of all senior debt will first be entitled to
receive payment in full of all amounts due on the senior debt, or provision will
be made for such payment in cash or cash equivalents in a manner satisfactory to
the holders of senior debt, before the holders of subordinated debt securities
will be entitled to receive any such payment.
Holders of subordinated debt may, however, receive stock or securities of
EG&G or another corporation in such a bankruptcy or reorganization of the nature
described above if (a) the issuance of the stock or securities is authorized by
the bankruptcy court and (b) the stock or securities are subordinated in right
of payment to all outstanding senior debt to the same extent as the subordinated
debt held by these holders.
If the maturity of any subordinated debt is accelerated, then the holders
of all senior debt will first be entitled to receive payment in full of all
amounts due on this senior debt, or provision will be made for such payment in
cash or cash equivalents in a manner satisfactory to the holders of senior debt,
before the holders of the subordinated debt securities will be entitled to
receive any such payment.
No payments on account of principal of, premium, if any, or interest on, or
any repurchase in respect of subordinated debt securities may be made if there
is a default in any payment with respect to senior debt, or an event of default
with respect to any senior debt permitting the holders of such senior debt to
accelerate the maturity of the senior debt.
"Senior debt" generally means the principal of, and premium, if any, and
unpaid interest on, all present and future indebtedness and obligations of EG&G,
unless the instrument creating or evidencing the indebtedness or obligation
expressly provides that the indebtedness or obligation is not senior to payment
of subordinated debt securities.
The applicable prospectus supplement may further describe the provisions,
if any, applicable to the subordination of the
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subordinated debt securities of a particular series.
BOOK-ENTRY DEBT SECURITIES
We may issue any series of debt securities in the form of one or more
global securities. We will deposit these global securities with a depositary or
its nominee identified in the applicable prospectus supplement. In this case, we
will issue one or more global securities in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
outstanding debt securities of the series to be represented by the global
security or securities.
With certain exceptions, unless and until a global security is exchanged in
whole or in part for debt securities in definitive registered form, the global
security may not be registered for transfer or exchange, except as a whole by
the depositary for the global security to a nominee of the depositary and except
in the circumstances described in the applicable prospectus supplement.
The applicable prospectus supplement will describe the specific terms of
the depositary arrangement for any portion of a series of debt securities to be
represented by a global security. See the discussion below under "Book-Entry
Securities."
CONVERSION OR EXCHANGE OF
DEBT SECURITIES
The prospectus supplement will set forth the terms, if any, on which a
series of subordinated debt securities may be converted into or exchanged for
other securities of EG&G. These terms will include whether conversion or
exchange is mandatory, or is at our option or the option of the holder. We will
also describe how we will calculate the number of securities that holders of
subordinated debt securities would receive if they were to convert or exchange
their debt securities.
CERTAIN RESTRICTIVE PROVISIONS
LIMITATION ON LIENS
The senior indenture contains a covenant that we will not, and will not
permit any of our restricted subsidiaries to, create, issue, assume, incur or
guarantee any secured funded debt without first insuring that the senior debt
securities will be secured equally and ratably with, or senior to, the secured
funded debt. This covenant will not prevent us or any of our restricted
subsidiaries from creating, issuing, assuming, incurring or guaranteeing:
- secured funded debt that is owed to EG&G or another of our restricted
subsidiaries;
- secured funded debt resulting from a lien, pledge or other encumbrance on
our property or the property of a restricted subsidiary in favor of the
United States, any state, or any related agency to secure partial,
progress, advance or other payments or performance under any contract or
statute;
- secured funded debt that is secured by a lien, pledge or other
encumbrance on property, shares of stock or indebtedness of any entity at
the time that the entity becomes a restricted subsidiary;
- secured funded debt secured by a lien, pledge or other encumbrance on
property existing on the property at the time of the acquisition or lease
of the property by EG&G or a restricted subsidiary, or created or
incurred within 120 days after the date of the acquisition or lease,
including any acquisition through merger or consolidation, of the
property, stock or indebtedness;
- secured funded debt secured by a lien, pledge or other encumbrance
incurred or assumed in connection with the issuance of revenue bonds, the
interest on which is exempt from federal income tax;
- with respect to any series of senior debt securities, any secured funded
debt existing on the date of issuance of the series of senior debt
securities;
- secured funded debt secured by a lien, pledge or other encumbrance on
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property of an entity which exists at the time that the entity is merged
or consolidated with EG&G or a restricted subsidiary, or of the sale,
lease or other disposition of all or substantially all of the properties
of an entity to EG&G or a restricted subsidiary;
- secured funded debt incurred to purchase inventory, equipment or other
property acquired or held by EG&G or a restricted subsidiary that is
secured by a lien, pledge or other encumbrance on the inventory,
equipment or property, or to construct or improve any property of EG&G or
a restricted subsidiary;
- secured funded debt, if immediately after incurrence or issuance of the
secured funded debt, the sum of all (a) outstanding secured funded debt
of EG&G and our restricted subsidiaries incurred as described in this
subparagraph and (b) attributable debt of EG&G and our restricted
subsidiaries in respect of sale and leaseback transactions, does not
exceed 10% of consolidated net tangible assets (the "10% Limit"); and
- any extension, renewal or replacement of any secured funded debt we are
permitted to incur in accordance with the terms described above.
For purposes of this covenant:
- "restricted subsidiaries" means all subsidiaries of EG&G, other than
those subsidiaries that our board of directors designates as
"unrestricted subsidiaries" under the senior indenture, and any
subsidiary, a majority of the voting stock of which is owned by
unrestricted subsidiaries;
- "subsidiary" means any corporation more than 50% of the outstanding
voting stock of which is owned directly or indirectly by EG&G;
- "secured funded debt" means funded debt which is secured by a lien,
pledge or other encumbrance on any assets of EG&G or a restricted
subsidiary;
- "funded debt" means:
(a) indebtedness of EG&G or a restricted subsidiary for borrowed money
maturing more than 12 months after the time of computation of the
indebtedness,
(b) guarantees of indebtedness for borrowed money of any other entity
maturing more than 12 months after the time of computation of the
indebtedness, except certain guarantees arising in the ordinary course of
business, and
(c) indebtedness for borrowed money maturing more than 12 months after
the time of computation of the indebtedness which is secured by a lien,
pledge or other encumbrance on property of EG&G or a restricted
subsidiary, regardless of whether the indebtedness is assumed by EG&G or
its restricted subsidiaries.
Funded debt does not include any amounts relating to obligations under
leases or lease guarantees, including attributable debt, or any accrued
liabilities relating to any pension plan or post retirement medical plan,
regardless of whether any of these obligations would be included as
liabilities on a consolidated balance sheet of EG&G and its restricted
subsidiaries;
- "attributable debt" means, with respect to any sale and leaseback
transaction:
(a) the balance sheet liability amount of any capital lease entered into
in connection with the sale and leaseback transaction determined in
accordance with generally accepted accounting principles, plus
(b) the present value of:
(1) the amount of future minimum lease payments under any operating
leases entered into in connection with the sale and leaseback
transaction required to be disclosed under generally
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accepted accounting principles, less
(2) any amounts required to be paid in respect of maintenance and
repairs, insurance, taxes, assessments, water rates and similar
charges, calculated using a discount rate equal to EG&G's weighted
average cost of funds for borrowed money;
- "consolidated net tangible assets" means the total amount of assets on a
consolidated balance sheet of EG&G and its restricted subsidiaries, less
applicable reserves and other properly deductible items and after
excluding any investments made in unrestricted subsidiaries, and after
deducting:
(a) all liabilities, including all amounts relating to obligations under
leases or lease guarantees, including any attributable debt, which under
generally accepted accounting principles would be included on the
consolidated balance sheet, but not including funded debt, accrued
liabilities relating to any pension plans or post-retirement medical
plans, capital stock and surplus, surplus reserves and provisions for
deferred income taxes, and
(b) goodwill, trade names, trademarks, patents, unamortized debt discount
and expense and other intangible items;
- "sale and leaseback transaction" means any arrangement with any entity
under which EG&G or a restricted subsidiary sells or transfers any
principal property more than 120 days after the acquisition of the
principal property or, if later, the completion of construction and
commencement of full operations of the principal property, to an entity,
and leases from such entity the principal property. Sales and leaseback
transactions do not include transactions of this nature between EG&G and
our restricted subsidiaries or between restricted subsidiaries, or
involving the taking back of a lease for a period of three years or less;
and
- "principal property" means any real property of EG&G or a restricted
subsidiary, and any equipment located at, or which is a part of, any such
real property, which has a net book value in excess of the greater of
$20,000,000 or 5% of consolidated net tangible assets.
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS
The senior indenture contains a covenant that we will not, and will not
permit our restricted subsidiaries, to enter into any sale and leaseback
transaction involving any principal property, unless:
- EG&G or a restricted subsidiary could create secured funded debt on the
property without exceeding the 10% Limit, in a principal amount at least
equal to the attributable debt relating to the sale and leaseback
transaction that is secured by liens, pledges or other encumbrances on
the property to be leased, without equally and ratably securing the
outstanding senior debt securities;
- EG&G, within 120 days after the effective date of the sale and leaseback
transaction, applies an amount equal to the value of the sale and
leaseback transaction to either (a) the retirement of its secured funded
debt or (b) the purchase of other property which is principal property
having a fair value, as determined by EG&G, at least equal to the value
of such sale and leaseback transaction; or
- EG&G or a restricted subsidiary delivers to the trustee for cancellation
senior debt securities or funded debt in an aggregate principal amount at
least equal to the value of the sale and leaseback transaction.
For purposes of this covenant "value" means the greater of (a) the net
proceeds from the sale of the principal property leased in connection with the
sale and leaseback transaction or (b) the fair value, as
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determined by EG&G, of the principal property at the time of the sale and
leaseback transaction.
EVENTS OF DEFAULT
Any one of these events will constitute an "event of default" under the
indentures with respect to debt securities of any series:
- failure to pay principal of or any premium on any debt security of that
series when due;
- failure to pay any interest on any debt security of that series when due,
continued for 30 days;
- failure to deposit any sinking fund payment, when due, in respect of any
debt security of that series;
- failure to perform or breach of any other covenants or warranties of EG&G
in the applicable indenture continued for 90 days after written notice as
provided in the indenture;
- a default under any indebtedness for money borrowed by EG&G or any of its
subsidiaries if:
(a) the default either:
(1) results from the failure to pay the principal of any of the
indebtedness at its stated maturity or
(2) relates to an obligation other than the obligation to pay the
principal of the indebtedness at its stated maturity, and results in
the indebtedness becoming due and payable prior to the date on which
it would otherwise become due and payable;
(b) the principal amount of the indebtedness, together with the principal
amount of any other indebtedness in default for failure to pay principal
at its stated maturity or the maturity of which has been accelerated,
equals a total outstanding amount of $25,000,000 or more at any one time;
and
(c) the indebtedness is not discharged, or the acceleration is not
rescinded, within 30 days after written notice as provided in the
applicable Indenture;
- events of bankruptcy, insolvency or reorganization of EG&G; and
- any other event of default provided with respect to debt securities of
that series.
If any event of default with respect to the debt securities of any series
at the time outstanding occurs and is continuing, either the trustee or the
holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series may, by written notice to EG&G, declare the principal
amount or, if the debt securities of that series are original issue discount
debt securities or indexed debt securities, a specified portion of the principal
amount of all the debt securities of that series to be due and payable
immediately. At any time after a declaration of acceleration has been made, but
before a judgment or decree based on acceleration has been obtained, the holders
of a majority in aggregate principal amount of outstanding debt securities of
the series may, under the circumstances described in the indenture, rescind the
acceleration.
The applicable prospectus supplement relating to any series of debt
securities that are original issue discount debt securities or indexed debt
securities will describe the particular provisions relating to acceleration of
the stated maturity of a portion of the principal amount of this type of series
of debt securities upon the occurrence of an event of default and the
continuation of such event of default.
Each indenture provides that, subject to the duty of the trustee under the
indenture during default to act with the required standard of care, the trustee
will be under no obligation to exercise any of its rights or powers under the
applicable indenture at the request or direction of any of the holders of debt
securities, unless the holders have offered to the trustee reasonable indemnity.
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Subject to these provisions for the indemnification of the trustee and to other
conditions described in the indentures, the holders of a majority in aggregate
principal amount of the outstanding debt securities of any series will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the trustee, or exercising any trust or power conferred on
the trustee, with respect to the debt securities of that series.
No holder of any series of outstanding debt securities will have any right
to institute any proceeding with respect to the applicable indenture or for any
remedy under the applicable indenture, unless:
- the holder has previously given to the trustee written notice of a
continuing event of default with respect to debt securities of that
series;
- the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the series have made written request to
the trustee to institute the proceeding;
- such holder or holders have offered reasonable indemnity to the trustee
in connection with the request to institute a proceeding;
- the trustee has failed to institute the proceeding within 60 days after
receipt of the notice of a continuing event of default, request to
institute a proceeding and offer of indemnity; and
- the trustee has not received from the holders of a majority in aggregate
principal amount of the outstanding debt securities of the series before
the end of this 60-day period a direction inconsistent with the request
to institute a proceeding.
However, these limitations do not apply to a suit instituted by a holder of a
debt security for enforcement of payment of the principal of, or premium, if
any, or interest on, a debt security on or after the respective due dates
expressed in the debt security.
We will be required to furnish to the trustee annually a statement as to
our performance of certain of our obligations under the indentures and as to any
default in our performance.
MODIFICATION AND WAIVER
EG&G and the respective trustees may make modifications and amendments to
the Indentures without the consent of the holders of any of the debt securities
in order to:
- evidence the succession of another entity to EG&G and the assumption of
the covenants and obligations of EG&G under the debt securities and the
indentures by the successor;
- add to the covenants of EG&G for the benefit of the holders of all or any
series of debt securities, or surrender any of EG&G's rights or powers
under the indentures;
- add additional events of default with respect to any series of debt
securities;
- add to or change any provisions to the extent that may be necessary to
permit or facilitate the issuance of debt securities in bearer form or to
facilitate the issuance of book-entry securities;
- add to, change or eliminate any provision affecting only debt securities
not yet issued;
- secure the debt securities;
- establish the form or terms of debt securities of any series;
- evidence and provide for successor trustees or add or change any
provisions as may be necessary to provide for or facilitate the
appointment of a separate trustee or trustees for specific series of debt
securities;
- permit payment in respect of debt securities in bearer form or coupons in
the United States to the extent allowed by law; and
- cure any ambiguity, correct or supplement any mistaken or inconsistent
provisions, or make any other provisions with respect to matters or
questions arising under the indentures, as long as the action does
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not materially and adversely affect any holder of debt securities then
outstanding under the applicable indenture.
EG&G and the trustee may modify and amend each indenture with the consent
of the holders of not less than a majority in aggregate principal amount of the
outstanding debt securities of each series issued under the applicable indenture
that are adversely affected by the modification or amendments. However, without
the consent of the holders of all debt securities affected by a modification or
amendment, EG&G and the trustee may not modify or amend an indenture to:
- change the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security;
- reduce the principal amount of, or the premium, if any, or interest on,
any debt security, including in the case of an original issue discount
debt security the amount payable upon acceleration of the maturity of the
original issue discount debt security;
- change the place or currency of payment of principal of, or premium, if
any, or interest on, any debt security;
- impair the right to institute suit for the enforcement of any payment on
any debt security on or at the stated maturity of such debt security, or
in the case of redemption, on or after the redemption date therefor;
- adversely affect any right of the holders to require EG&G to repurchase
debt securities;
- in the case of subordinated debt securities, adversely affect any right
to convert such debt securities or modify the subordination provisions in
a manner adverse to the holders of the debt securities in any material
respect;
- reduce the percentage in principal amount of outstanding debt securities
of any series, the consent of whose holders is required for modification
or amendment of the applicable indenture or for any waiver provided for
in the applicable indenture; or
- modify the provision of the applicable indenture requiring unanimous
consent of the holders of debt securities under the circumstances
described above, or modify the percentage vote required to consent to
waivers of past defaults and restrictive covenants, unless the percentage
required under the applicable indenture is increased.
With respect to the senior indenture, the holders of at least a majority in
aggregate principal amount of the outstanding debt securities of any series may,
on behalf of all holders of that series, waive compliance by EG&G with
restrictive provisions concerning:
- consolidations, mergers and sales of assets;
- limitations on liens;
- limitations on sale and leasebacks; and
- limitations on designation of unrestricted subsidiaries as restricted
subsidiaries.
With respect to the subordinated indenture, the holders of at least a
majority in aggregate principal amount of the outstanding debt securities of any
series may, on behalf of all holders of that series, waive compliance by EG&G
with restrictive provisions concerning consolidations, mergers and sales of
assets.
The holders of a majority in aggregate principal amount of the outstanding
debt securities of any series may, on behalf of all holders of that series,
waive any past default under the applicable indenture, except a default in the
payment of principal, premium or interest and in respect of a covenant or
provision of the applicable indenture that cannot be modified or amended without
the consent of the holder of each outstanding debt security of the series
affected thereby.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not consolidate with or merge into any other entity or transfer all
or
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substantially all of our properties and assets to any other entity, unless:
- we are the surviving entity in the transaction, or the surviving
corporation or purchaser of our properties and assets is a corporation,
partnership or trust organized under the laws of any domestic
jurisdiction, and the successor or purchaser expressly assumes all of our
obligations and covenants under the indentures and the debt securities;
- after giving effect to the transaction, no event of default, and no event
which, after notice or lapse of time, would become an event of default,
will have occurred and be continuing; and
- in the case of senior debt securities only and except in the case of a
merger or consolidation of EG&G and a restricted subsidiary, either (a)
the holders of a majority in aggregate principal amount of the
outstanding debt securities of each series have consented to the
transaction or (b) immediately after consummation of the transaction,
EG&G or the successor entity would be permitted to incur at least $1.00
of secured funded debt, without exceeding the 10% Limit.
DEFEASANCE OF DEBT SECURITIES OR CERTAIN
COVENANTS IN CERTAIN CIRCUMSTANCES
DEFEASANCE AND DISCHARGE
Each indenture provides that EG&G, at its option:
- will be discharged from any and all obligations in respect of the debt
securities of any series, except for certain obligations to register the
transfer or exchange of debt securities of the series, replace stolen,
lost or mutilated debt securities of the series, maintain paying agencies
and hold moneys for payment in trust, and
- need not comply with certain restrictive covenants of the indenture,
in each case if we deposit in trust with the trustee money and/or U.S.
government obligations which, through the payment of interest on, and principal
of, such money or obligations in accordance with their terms, will provide money
in an amount sufficient to pay all the principal of, and premium, if any, and
interest on, the debt securities of the series on the dates these payments are
due, which may include one or more redemption dates that we may designate, in
accordance with the terms of the applicable indenture and the debt securities of
such series.
We may only establish this kind of trust if, among other things:
- no event of default or event which with the giving of notice or lapse of
time, or both, would become an event of default under the applicable
Indenture will have occurred and be continuing on the date of the
deposit;
- the deposit will not cause the trustee to have any conflicting interest
with respect to other securities of EG&G; and
- we have delivered an opinion of counsel to the effect that the holders of
the debt securities of the series will not recognize income, gain or loss
for federal income tax purposes as a result of the deposit or defeasance
and will be subject to federal income tax in the same manner as if the
defeasance had not occurred.
DEFEASANCE OF CERTAIN COVENANTS APPLICABLE TO THE SENIOR DEBT SECURITIES
The senior indenture provides that the terms of any series of senior debt
securities may provide EG&G with the option to be released from the restrictive
covenants described under "-- Certain Restrictive Provisions." Both the senior
and subordinated indentures provide that the terms of any series of debt
securities may provide EG&G with the option to be released from the restrictive
covenant described under "-- Consolidation, Merger and Sale of Assets."
In order to exercise these options, we will be required to deposit with the
trustee money and/or U.S. government obligations. This money, together with the
payment of interest
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on and principal of such U.S. government obligations, must provide sufficient
money to pay principal of, premium, if any, and interest on, and any mandatory
sinking fund payments in respect of, the debt securities of the series on the
stated maturity of such payments in accordance with the terms of the applicable
indenture and the debt securities. We will also be required to deliver to the
applicable trustee an opinion of counsel to the effect that the deposit and
related covenant defeasance will not cause the holders of the debt securities of
the series to recognize income, gain or loss for federal income tax purposes.
In the event EG&G exercises one of these options and the debt securities
are declared due and payable because of the occurrence of any event of default,
the amount of money and U.S. government obligations on deposit with the
applicable trustee will be sufficient to pay amounts due on the debt securities
of the affected series at the time of their stated maturity, but may not be
sufficient to pay amounts due on the debt securities of this series at the time
of the acceleration resulting from the event of default. However, we will remain
liable for these payments.
The applicable prospectus supplement will state if any defeasance
provisions will apply to the offered debt securities.
TRUSTEES
The First National Bank of Chicago is the trustee under each of the
indentures. The trustee may resign or be removed with respect to one or more
series of debt securities under the applicable indenture and the successor
trustee may be appointed to act with respect to such series. In the event that
two or more persons are acting as trustee with respect to different series of
debt securities, each trustee will be a trustee of a trust under the related
indenture separate and apart from the trust administered by any other trustee.
If this occurs, any action described in this prospectus to be taken by the
"trustee" may then be taken by each trustee only with respect to the one or more
series of securities for which it is trustee.
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DESCRIPTION OF WARRANTS
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of the warrants
that we may offer under this prospectus and the related warrant agreements and
warrant certificates. Specific warrant agreements will contain additional
important terms and provisions and will be incorporated by reference as an
exhibit to the registration statement which includes this prospectus.
This summary of the warrant agreements, the warrants and the warrant
certificates relates to terms and conditions applicable to the warrants
generally. The particular terms of any series of warrants will be summarized in
the applicable prospectus supplement. If indicated in the prospectus supplement,
the terms of any series may differ from the terms summarized below.
GENERAL
We may issue warrants for the purchase of common stock, preferred stock,
depositary shares and/or debt securities in one or more series. We may issue
warrants independently or together with common stock, preferred stock,
depositary shares and/or debt securities, and they may be attached to or
separate from these securities.
Each series of warrants will be evidenced by warrant certificates issued
under a separate agreement. EG&G will enter into the warrant agreement with a
warrant agent. Each warrant agent will be a bank that we select which has its
principal office in the United States and a combined capital and surplus of at
least $50,000,000. The applicable prospectus supplement relating to a particular
series of warrants will indicate the name and address of the warrant agent.
The applicable prospectus supplement will describe the terms of the series
of warrants, including:
- the offering price;
- the currency for which the warrants may be purchased;
- if applicable, the designation and terms of the securities with which the
warrants are issued and the number of warrants issued with each such
security or each principal amount of such security;
- if applicable, the date on and after which the warrants and the related
securities will be separately transferable;
- in the case of warrants to purchase debt securities, the principal amount
of debt securities purchasable upon exercise of one warrant and the price
at, and currency in which, this principal amount of debt securities may
be purchased upon such exercise;
- in the case of warrants to purchase common stock, preferred stock or
depositary shares, the number of shares of common stock or preferred
stock or depositary shares, as the case may be, purchasable upon the
exercise of one warrant and the price at which these shares may be
purchased upon such exercise;
- the dates on which the right to exercise the warrants will commence and
expire;
- certain federal income tax consequences of holding or exercising the
warrants;
- the terms of the securities issuable upon exercise of the warrants; and
- any other terms of the warrants.
Warrant certificates may be exchanged for new warrant certificates of
different denominations, presented for registration of transfer, and exercised
at the corporate trust office of the warrant agent or any other office indicated
in the applicable prospectus supplement. If the warrants are not separately
transferrable from the securities with which they were issued, such exchange may
take place only in connection with an exchange of
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the certificates representing the related securities.
Before exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such exercise,
including:
- in the case of warrants to purchase debt securities, the right to receive
payments of principal of, or premium, if any, or interest on, the debt
securities purchasable upon exercise or to enforce covenants in the
applicable indenture; or
- in the case of warrants to purchase common stock, preferred stock or
depositary shares, the right to receive dividends, if any, or payments
upon the liquidation, dissolution or winding up of EG&G or to exercise
voting rights, if any.
EXERCISE OF WARRANTS
Each warrant will entitle the holder to purchase the securities specified
in the applicable prospectus supplement at the exercise price described in the
applicable prospectus supplement. Unless otherwise specified in the applicable
prospectus supplement, warrants may be exercised at any time up to 5:00 P.M. New
York time on the expiration date set forth in the applicable prospectus
supplement. After the close of business on the expiration date, unexercised
warrants will become void.
Warrants may be exercised by delivery of the warrant certificate
representing the warrants to be exercised together with certain information, and
payment to the warrant agent in immediately available funds, as provided in the
applicable prospectus supplement, of the required amount. The information
required to be delivered to the warrant agent will be set forth on the reverse
side of the warrant certificate and in the applicable prospectus supplement.
Upon receipt of the required payment and the warrant certificate properly
completed and duly executed at the corporate trust office of the warrant agent
or any other office indicated in the applicable prospectus supplement, we will
issue and deliver the securities purchasable upon such exercise. If fewer than
all of the warrants represented by the warrant certificate are exercised, a new
warrant certificate will be issued for the remaining amount of warrants. If so
indicated in the applicable prospectus supplement, securities may be surrendered
as all or part of the exercise price for warrants.
ANTIDILUTION PROVISIONS
In the case of warrants to purchase common stock, the exercise price
payable and the number of shares of common stock purchasable upon the exercise
of each warrant will be subject to adjustment in certain events. No fractional
shares will be issued upon exercise of warrants, but we will pay cash value of
any fractional shares otherwise issuable.
MODIFICATION
Any warrant agreement and the terms of the related warrants may be amended
by EG&G and the applicable warrant agent by executing a supplemental warrant
agreement, without the consent of the holders of any such warrants, for the
following purposes:
- curing any ambiguity, or correcting any defective or inconsistent
provision contained therein, or making any other provisions with respect
to matters or questions arising under the warrant agreement that is not
inconsistent with the provisions of the warrant agreement or the warrant
certificates;
- evidencing the assumption by any successor to EG&G of the covenants of
EG&G contained in the warrant agreement and the warrants;
- appointing a successor warrant agent;
- evidencing the appointment of a successor warrant agent;
- adding to the covenants of EG&G for the benefit of the holders of the
warrants or surrendering any right or power conferred upon EG&G under the
warrant agreement;
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- issuing warrants in definitive form, if the warrants are initially issued
in the form of global securities; or
- amending the warrant agreement and the warrants in any manner that we may
deem to be necessary or desirable and that will not adversely affect the
interests of the holders of the warrants in any material respect.
EG&G and the warrant agent may also amend any warrant agreement and the
terms of the related warrants by executing a supplemental warrant agreement with
the consent of the holders of not less than a majority in number of the
unexercised warrants affected by the amendment, except that without the consent
of the affected holder, no such amendment may:
- change the number or amount of securities purchasable upon exercise of
the warrants so as to reduce the number or amount of securities
purchasable upon such exercise;
- shorten the period of time during which the warrants may be exercised;
- otherwise adversely affect the exercise rights of the holders of the
warrants in any material respect; or
- reduce the number of unexercised warrants the consent of holders of which
is required for amendment of the warrant agreement or the related
warrants.
CONSOLIDATION, MERGER AND SALE
OF ASSETS
Each warrant agreement will provide that we may consolidate or merge with
or into any other corporation or sell, lease or transfer all or substantially
all of our assets to any other corporation, provided that:
- we are the continuing corporation, or the corporation, if other than
EG&G, that is formed by or results from any such consolidation or merger
or receives such assets
(a) is a corporation organized under the laws of the United States of
America or a U.S. state and
(b) assumes all of the obligations of EG&G with respect to all the
unexercised warrants and the applicable warrant agreements; and
- EG&G or the successor corporation, as the case may be, is not immediately
in default under such warrant agreement.
ENFORCEABILITY OF RIGHTS BY HOLDERS
OF WARRANTS
Each warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or relationship of agency
or trust with any holder of any warrant. A single bank or trust company may act
as warrant agent for more than one issue of warrants. A warrant agent will have
no duty or responsibility in case of any default by EG&G under the applicable
warrant agreement or warrant including, without limitation, any duty or
responsibility to initiate any proceedings at law or otherwise, or to make any
demand upon EG&G. Any holder of a warrant may, without the consent of the
related warrant agent or the holder of any other warrant, enforce by appropriate
legal action its right to exercise, and receive the securities purchasable upon
exercise of, its warrants.
RESIGNATION AND APPOINTMENT
OF WARRANT AGENT
We will provide a warrant agent until all the warrants issued have been
exercised or expired in accordance with their terms. The warrant agent may
resign at any time by giving notice to us, and we may at any time remove a
warrant agent. Any such resignation or removal will take effect upon the
appointment of a successor warrant agent. The warrant agent and any successor
warrant agent will be a bank or trust company having its office or agent's
office in the United States and having a combined capital and surplus of at
least $50,000,000.
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<PAGE> 35
TITLE
EG&G, the warrant agents and any agent of EG&G or the applicable warrant
agent may treat the registered holder of any warrant certificate as the absolute
owner of the warrants for any purpose and as the person entitled to exercise the
rights attaching to the warrants, in each case regardless of any notice to the
contrary.
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<PAGE> 36
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of the stock
purchase contracts and stock purchase units that we may offer pursuant to this
prospectus. Specific forms of the stock purchase contracts and stock purchase
units and any related collateral arrangements, depositary arrangements, prepaid
securities and the documents under which these securities are issued, contain
additional important terms and provisions and will be incorporated by reference
into the registration statement which includes this prospectus before we issue
any stock purchase contracts.
We may issue stock purchase contracts that obligate the holders to purchase
from EG&G, and EG&G to sell to the holders, a specified number of shares of
common stock, preferred stock or depositary shares at a future date.
The price per share of common stock, preferred stock or depositary shares
may be fixed at the time the stock purchase contracts are issued or may be
determined by a specific formula set forth in the stock purchase contracts. The
stock purchase contracts may be issued separately or as a part of stock purchase
units consisting of a stock purchase contract and either debt securities or debt
obligations of third parties, including U.S. Treasury securities, in each case
securing the holder's obligations to purchase the common stock, preferred stock
or depositary shares under the stock purchase contracts.
The stock purchase contracts may require us to make periodic payments to
the holders of the stock purchase units or vice versa, and these payments may be
unsecured or prefunded on some basis. The stock purchase contracts may require
holders to secure their obligations under the stock purchase contracts in a
specified manner. In certain circumstances we may deliver newly issued prepaid
stock purchase contracts upon release to a holder of any collateral securing the
holder's obligations under the original stock purchase contract.
BOOK-ENTRY SECURITIES
Unless otherwise specified in the applicable prospectus supplement, we will
issue securities, other than common stock, in the form of one or more book-entry
certificates registered in the name of a depositary or a nominee of a
depositary. Unless otherwise specified in the applicable prospectus supplement,
the depositary will be The Depository Trust Company. We have been informed by
DTC that its nominee will be Cede & Co. Accordingly, Cede is expected to be the
initial registered holder of all securities that are issued in book-entry form.
No person that acquires a beneficial interest in securities issued in
book-entry form will be entitled to receive a certificate representing those
securities, except as set forth in this prospectus or in the applicable
prospectus supplement. Unless and until definitive securities are issued under
the limited circumstances described below, all references to actions by
beneficial owners of securities issued in book-entry form will refer to actions
taken by DTC upon instructions from its participants, and all references to
payments and notices to beneficial owners will refer to payments and notices to
DTC or Cede, as the registered holder of such securities.
DTC has informed us that it is:
- a limited purpose trust company organized under New York banking laws;
- a "banking organization" within the meaning of the New York banking laws;
- a member of the Federal Reserve System; and
- a "clearing agency" registered under the Exchange Act.
DTC has also informed us that it was created to:
- hold securities for its participating clients, or "participants"; and
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<PAGE> 37
- facilitate the clearance and settlement of securities transactions among
participants through electronic book-entry, thereby eliminating the need
for the physical movement of securities certificates.
Participants include securities brokers and dealers, banks, trust companies
and clearing corporations. Indirect access to the DTC system also is available
to other indirect participants such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly.
Persons that are not participants or indirect participants but desire to
buy, sell or otherwise transfer ownership of or interests in securities may do
so only through participants and indirect participants. Under the book-entry
system, beneficial owners may experience some delay in receiving payments, as
payments will be forwarded by our agent to Cede, as nominee for DTC. DTC will
forward these payments to its participants, which thereafter will forward them
to indirect participants or beneficial owners. Beneficial owners will not be
recognized by the applicable registrar, transfer agent, trustee, depositary or
warrant agent as registered holders of the securities entitled to the benefits
of the certificate or the applicable indenture, deposit agreement, warrant
agreement, stock purchase contract or stock purchase unit. Beneficial owners
that are not participants will be permitted to exercise their rights as an owner
only indirectly through participants and, if applicable, indirect participants.
Under the current rules and regulations affecting DTC, DTC will be required
to make book-entry transfers of securities among participants and to receive and
transmit payments to participants. Participants and indirect participants with
which beneficial owners of securities have accounts are also required by these
rules to make book-entry transfers and receive and transmit such payments on
behalf of their respective account holders.
Because DTC can act only on behalf of participants, who in turn act only on
behalf of other participants or indirect participants, and on behalf of certain
banks, trust companies and other persons approved by it, the ability of a
beneficial owner of securities issued in book-entry form to pledge those
securities to persons or entities that do not participate in the DTC system may
be limited due to the unavailability of physical certificates for the
securities.
DTC has advised us that it will take any action permitted to be taken by a
registered holder of any securities under the certificate or the applicable
indenture, deposit agreement, warrant agreement, stock purchase contract or
stock purchase unit only at the direction of one or more participants to whose
accounts with DTC the securities are credited.
Unless otherwise specified in the applicable prospectus supplement, a book-
entry security will be exchangeable for definitive securities registered in the
names of persons other than DTC or its nominee only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
for the book-entry security or DTC ceases to be a clearing agency
registered under the Exchange Act at a time when DTC is required to be so
registered;
- we execute and deliver to the applicable registrar, transfer agent,
trustee, depositary and/or warrant agent an order complying with the
requirements of the certificate or the applicable indenture, deposit
agreement, warrant agreement, stock purchase contract and/or stock
purchase unit that the book-entry security will be so exchangeable; or
- there is a default in the payment of any amount due in respect of the
securities or, in the case of debt securities, an event of default with
respect to the debt securities.
Any book-entry security that is exchangeable in accordance with the preceding
sentence will be exchangeable for securities registered in such names as DTC
directs.
If one of the events described in the immediately preceding paragraph
occurs,
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<PAGE> 38
DTC is generally required to notify all participants of the availability through
DTC of definitive securities. Upon surrender by DTC of the book-entry security
representing the securities and delivery of instructions for re-registration,
the registrar, transfer agent, trustee, depositary or warrant agent, as the case
may be, will reissue the securities as definitive securities. After reissuance
of the securities, such persons will recognize the beneficial owners of such
definitive securities as registered holders of securities.
Except as described above:
- a book-entry security may not be transferred except as a whole book-
entry security by or among DTC, a nominee of DTC and/or a successor
depositary appointed by us; and
- DTC may not sell, assign or otherwise transfer any beneficial interest in
a book-entry security unless the beneficial interest is in an amount
equal to an authorized denomination for the securities evidenced by the
book-entry security.
None of EG&G, the trustees, any registrar and transfer agent, any warrant
agent or any depositary, or any agent of any of them, will have any
responsibility or liability for any aspect of DTC's or any participant's records
relating to, or for payments made on account of, beneficial interests in a
book-entry security.
PLAN OF DISTRIBUTION
We may sell the securities through agents, underwriters or dealers, or
directly to one or more purchasers. Goldman, Sachs & Co. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated may be among these agents or underwriters.
In the ordinary course of their businesses, Goldman, Sachs & Co. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated and their respective affiliates have
engaged, and may in the future engage, in commercial banking and/or investment
banking transactions with EG&G or its affiliates.
AGENTS
We may designate agents who agree to use their reasonable efforts to
solicit purchases for the period of their appointment or to sell securities on a
continuing basis.
UNDERWRITERS
If we use underwriters for a sale of securities, the underwriters will
acquire the securities for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the securities will be subject
to the conditions set forth in the applicable underwriting agreement. The
underwriters will be obligated to purchase all the securities of the series
offered if any of the securities of that series are purchased. Any initial
public offering price and any discounts or concessions allowed or re-allowed or
paid to dealers may be changed from time to time.
DIRECT SALES
We may also sell securities directly to one or more purchasers without
using underwriters or agents.
Underwriters, dealers and agents that participate in the distribution of
the securities may be underwriters as defined in the Securities Act and any
discounts or commissions they receive from us and any profit on their resale of
the securities may be treated as underwriting discounts and commissions under
the Securities Act. The applicable prospectus supplement will identify any
underwriters, dealers or agents and will describe their compensation. We may
have agreements with the underwriters, dealers and agents to indemnify them
against certain civil liabilities, including liabilities under the Securities
Act. Underwriters, dealers and agents may engage in transactions with or
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perform services for us or our subsidiaries in the ordinary course of their
businesses.
TRADING MARKETS AND LISTING OF SECURITIES
Unless otherwise specified in the applicable prospectus supplement, each
class or series of securities will be a new issue with no established trading
market, other than the common stock, which is listed on the NYSE. We may elect
to list any other class or series of securities on any exchange, but we are not
obligated to do so. It is possible that one or more underwriters may make a
market in a class or series of securities, but the underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. We cannot give any assurance as to the liquidity of the trading market
for any of the securities.
STABILIZATION ACTIVITIES
Any underwriter may engage in over-allotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with Regulation M
under the Exchange Act. Over-allotment involves sales in excess of the offering
size, which create a short position. Stabilizing transactions permit bids to
purchase the underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of the
securities in the open market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession
from a dealer when the securities originally sold by the dealer are purchased in
a covering transaction to cover short positions. Those activities may cause the
price of the securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of the activities at any time.
VALIDITY OF SECURITIES
The legality of the securities have been passed upon for EG&G by Murray
Gross, Esq. At the time of this opinion, Mr. Gross was the Senior Vice
President, General Counsel and Clerk of EG&G. As of May 2, 1999, Murray Gross,
Esq. beneficially owned 175,844 shares (including options to purchase 143,000
shares) of common stock of EG&G. In addition, other customary legal matters
relating to the offering of the securities, including matters relating to our
due incorporation, legal existence and authorized capitalization, will be passed
upon for EG&G by its General Counsel or Hale and Dorr LLP, Boston,
Massachusetts.
EXPERTS
The consolidated financial statements of EG&G and the related financial
statement schedules, as of January 3, 1999 and December 28, 1997, and for each
of the fiscal years in the three year period ended January 3, 1999, appearing in
EG&G's Annual Report on Form 10-K for the year ended January 3, 1999 and the
consolidated financial statements of ILC Technology, Inc. as of September 27,
1997 and for the fiscal year then ended, included in EG&G's Forms 8-K/A filed on
February 26, 1999, March 10, 1999 and March 30, 1999, both of which are
incorporated herein by reference, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated herein by reference in reliance upon the authority
of said firm as experts in giving said reports.
The consolidated financial statements of Lumen Technologies, Inc. (formerly
BEC Group, Inc.) as of December 31, 1997 and for the fiscal year then ended are
incorporated in this prospectus by reference to EG&G's Forms 8-K/A filed on
February 26, 1999, March 10, 1999 and March 30, 1999, and have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
<TABLE>
<S> <C>
SEC registration fee........................................ $129,270
Accountants' fees and expenses.............................. 90,000
Attorneys' fees and expenses................................ 150,000
Printing and engraving expenses............................. 65,000
Fees and expenses of trustee................................ 5,000
Rating agencies' fees....................................... 40,000
Miscellaneous............................................... 50,730
--------
Total.................................................. $530,000
========
</TABLE>
- ---------------
* All fees and expenses other than the SEC registration fee are estimated.
ITEM 15. 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 the Registrant's Bylaws, to which reference is hereby
made, contain provisions authorizing indemnification by the Registrant of
directors, officers, employees or agents against certain liabilities and
expenses, which they may incur as directors, officers, employees or agents of
the Registrant 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 bylaw adopted
by the stockholder 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 bylaws, 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, Chapter 156B 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, Chapter 156B 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
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<PAGE> 41
other financial records, which are prepared by or presented by or under the
supervision of (i) 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 (ii) counsel, public accountants or other
persons as to matters that the director, officer or incorporator reasonably
believes to be within such a person's professional expert competence, or (iii)
in the case of a director, a duly constituted committee of the Board of
Directors 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, Chapter 156B 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 Sections 61 or 62, Chapter 156B 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, Chapter 156B
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
stockholder 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 Bylaws of the Registrant contains provisions
relating to the indemnification of directors and officers of the Registrant,
which are consistent with Section 67, Chapter 156B 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 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, Chapter 156B 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 Bylaws.
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<PAGE> 42
In the Underwriting Agreements the underwriters will agree to indemnify,
under certain conditions, the Registrant, its directors, certain of its officers
and persons who control the Registrant within the meaning of the Securities Act
of 1933, as amended, against certain liabilities.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
#1.1 Form of Common Stock Underwriting Agreement.
+1.2 Form of Debt Underwriting Agreement.
+4.1 Form of Senior Debt Indenture between the Registrant and The
First National Bank of Chicago, as Trustee.
+4.2 Form of Subordinated Debt Indenture between the Registrant
and The First National Bank of Chicago, as Trustee.
4.3 Restated Articles of Organization of the Registrant filed
with the Securities and Exchange Commission on March 30,
1999 as Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K and incorporated herein by reference.
4.4 Bylaws of the Registrant filed with the Securities and
Exchange Commission on March 24, 1998 as Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K and incorporated
herein by reference.
4.5 The Rights Agreement dated as of January 25, 1995 between
the Registrant and the First National Bank of Boston filed
with the Securities and Exchange Commission on January 27,
1995 as Exhibit 4.1 to the Registrant's Current Report on
Form 8-K and incorporated herein by reference.
+5.1 Opinion and Consent of Murray Gross, Esq.
+12.1 Statement re computation of ratios.
#23.1 Consent of Arthur Andersen LLP, Boston.
+23.2 Consent of Murray Gross, Esq. (included as part of Exhibit
5.1).
#23.3 Consent of PricewaterhouseCoopers LLP.
#23.4 Consent of Arthur Andersen LLP, San Jose.
+24.1 Powers of attorney.
+25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of the First National Bank of
Chicago, as Trustee with respect to the Senior Debt
Indenture, and as Trustee with respect to the Subordinated
Indenture.
</TABLE>
- ---------------
# Filed herewith.
+ Previously filed.
ITEM 17. 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, as amended;
(ii) To reflect in the prospectus any facts 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
the volume of securities offered (if the total dollar value of
securities offered
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<PAGE> 43
would not exceed that which was registered) and any deviation from the
low or high and 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% change in the maximum aggregate offering price set
forth in the "Calculations of Registration Fee" table in the effective
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 paragraphs (a)(i) and (a)(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 by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, that are incorporated by reference in the
Registration Statement;
(b) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, 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; and
(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, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, (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, as amended) 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, as amended, may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under Item 15
above, 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 against the Registrant 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.
4. The undersigned Registrant hereby undertakes that:
(a) For the purpose of determining any liability under the Securities Act
of 1933, as amended, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act, as amended, shall be
deemed to be part of this Registration Statement as of the time it was
declared effective; and
II-4
<PAGE> 44
(b) For the purpose of determining any liability under the Securities Act
of 1933, as amended, each post-effective amendment that contains a form of
prospectus 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.
5. The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-5
<PAGE> 45
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, 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 AMENDMENT
NO. 3 TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE TOWN OF WELLESLEY, COMMONWEALTH OF
MASSACHUSETTS ON THE 24TH DAY OF MAY, 1999.
EG&G, INC.
By: /s/ GREGORY L. SUMME
------------------------------------
Gregory L. Summe,
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS AMENDMENT NO. 3 TO REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ GREGORY L. SUMME Chief Executive Officer and May 24, 1999
- --------------------------------------------------- Chairman of the Board
Gregory L. Summe (Principal Executive
Officer)
ROBERT F. FRIEL* Senior Vice President and May 24, 1999
- --------------------------------------------------- Chief Financial Officer
Robert F. Friel (Principal Financial
Officer)
GREGORY D. PERRY* Corporate Controller May 24, 1999
- --------------------------------------------------- (Principal Accounting
Gregory D. Perry Officer)
TAMARA J. ERICKSON* Director May 24, 1999
- ---------------------------------------------------
Tamara J. Erickson
JOHN B. GRAY* Director May 24, 1999
- ---------------------------------------------------
John B. Gray
KENT F. HANSEN* Director May 24, 1999
- ---------------------------------------------------
Kent F. Hansen
JOHN F. KEANE* Director May 24, 1999
- ---------------------------------------------------
John F. Keane
NICHOLAS A. LOPARDO* Director May 24, 1999
- ---------------------------------------------------
Nicholas A. Lopardo
GRETA E. MARSHALL* Director May 24, 1999
- ---------------------------------------------------
Greta E. Marshall
MICHAEL C. RUETTGERS* Director May 24, 1999
- ---------------------------------------------------
Michael C. Ruettgers
</TABLE>
II-6
<PAGE> 46
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
JOHN LARKIN THOMPSON* Director May 24, 1999
- ---------------------------------------------------
John Larkin Thompson
G. ROBERT TOD* Director May 24, 1999
- ---------------------------------------------------
G. Robert Tod
*By: /s/ GREGORY L. SUMME
---------------------------------------------
Gregory L. Summe
Attorney-in-Fact
</TABLE>
II-7
<PAGE> 47
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO.
- -------
<C> <S>
#1.1 Form of Common Stock Underwriting Agreement.
+1.2 Form of Debt Underwriting Agreement.
+4.1 Form of Senior Debt Indenture between the Registrant and The
First National Bank of Chicago, as Trustee.
+4.2 Form of Subordinated Debt Indenture between the Registrant
and The First National Bank of Chicago, as Trustee.
4.3 Restated Articles of Organization of the Registrant filed
with the Securities and Exchange Commission on March 30,
1999 as Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K and incorporated herein by reference.
4.4 Bylaws of the Registrant filed with the Securities and
Exchange Commission on March 24, 1998 as Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K and incorporated
herein by reference.
4.5 The Rights Agreement dated as of January 25, 1995 between
the Registrant and the First National Bank of Boston filed
with the Securities and Exchange Commission on January 27,
1995 as Exhibit 4.1 to the Registrant's Current Report on
Form 8-K and incorporated herein by reference.
+5.1 Opinion and Consent of Murray Gross, Esq.
+12.1 Statement re computation of ratios.
#23.1 Consent of Arthur Andersen LLP, Boston.
+23.2 Consent of Murray Gross, Esq. (included as part of Exhibit
5.1).
#23.3 Consent of PricewaterhouseCoopers LLP.
#23.4 Consent of Arthur Andersen LLP, San Jose.
+24.1 Powers of attorney.
+25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The First National Bank of
Chicago, as Trustee with respect to the Senior Debt
Indenture, and as Trustee with respect to the Subordinated
Indenture.
</TABLE>
- ---------------
# Filed herewith.
+ Previously filed.
II-8
<PAGE> 1
Exhibit 1.1
EG&G, INC.
COMMON STOCK
----------------------
UNDERWRITING AGREEMENT
________ __, 1999
GOLDMAN, SACHS & CO.,
MERRILL LYNCH & CO. INC.
C/O GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
Ladies and Gentlemen:
From time to time EG&G, Inc., a Massachusetts corporation (the "Company"),
proposes to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain shares of its Common Stock (the "Shares") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing Agreement, the "Firm
Shares"). If specified in such Pricing Agreement, the Company may grant to the
Underwriters the right to purchase at their election an additional number of
shares, specified in such Pricing Agreement as provided in Section 3 hereof (the
"Optional Shares"). The Firm Shares and the Optional Shares, if any, which the
Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively called the "Designated Shares."
The terms and rights of any particular issuance of Designated Shares shall
be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to time to
the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the
<PAGE> 2
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company to sell any of
the Shares or as an obligation of any of the Underwriters to purchase any of the
Shares. The obligation of the Company to issue and sell any of the Shares and
the obligation of any of the Underwriters to purchase any of the Shares shall be
evidenced by the Pricing Agreement with respect to the Designated Shares
specified therein. Each Pricing Agreement shall specify the aggregate number of
the Firm Shares, the maximum number of Optional Shares, if any, the initial
public offering price of such Firm and Optional Shares or the manner of
determining such price, the purchase price to the Underwriters of such
Designated Shares, the names of the Underwriters of such Designated Shares, the
names of the Representatives of such Underwriters, the number of such Designated
Shares to be purchased by each Underwriter and the commission, if any, payable
to the Underwriters with respect thereto and shall set forth the date, time and
manner of delivery of such Firm and Optional Shares, if any, and payment
therefor. The Pricing Agreement shall also specify (to the extent not set forth
in the registration statement and prospectus with respect thereto) the terms of
such Designated Shares. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-71069) (the
"Initial Registration Statement") in respect of the Shares and certain
other securities of the Company has been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration Statement
and any post-effective amendments thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding exhibits
to the Initial Registration Statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore been
filed, or transmitted for filing, with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and regulations of
the Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or
-2-
<PAGE> 3
filed with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement, any post-effective amendments thereto and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the Initial Registration Statement at the time such part of
the Initial Registration Statement became effective but excluding Form T-1,
each as amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration Statement, if
any, became or hereafter becomes effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the Shares,
in the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Shares in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact
-3-
<PAGE> 4
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Shares through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Shares or to any statement in or omission from the Form T-1;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus which is material to the Company and its
subsidiaries, taken as a whole; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any material change in the capital stock (other than
pursuant to the Company's employee and director stock and option plans and
repurchases of the Shares pursuant to any previously announced
authorizations to do so) or any material increase in the long-term debt of
the Company and its subsidiaries, taken as a whole, or any material adverse
change, or any development which the Company has reasonable cause to
believe would involve a prospective material adverse change, in or
affecting the business, consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the Prospectus;
(e) The Company and its Material Subsidiaries (as set forth in
Schedule III attached hereto) have good and marketable title to all
property that is described in the Prospectus as being owned by them, in
each case free and clear of all liens, encumbrances and defects except such
as are described in the Prospectus or such as do not materially adversely
affect the value of such property or the use made and proposed to be made
of
-4-
<PAGE> 5
such property by the Company and its Material Subsidiaries; and any real
property and buildings held under lease by the Company and its Material
Subsidiaries that are described in the Prospectus are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material or do not materially interfere with the use made and proposed to
be made of such property and buildings by the Company and its Material
Subsidiaries;
(f) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each Material Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation (except with respect to
any subsidiaries incorporated in jurisdictions where the concept of good
standing is not recognized), and except for any failure to be so
incorporated and existing which would not have a material adverse effect on
the business, consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable, and all the issued shares of capital stock of each Material
Subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and (except as disclosed in the Annual
Report on Form 10-K for the year ended ____, and except for directors'
qualifying shares or such shares as may be required by local laws to be
owned by residents of the jurisdiction of incorporation) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(h) The Shares have been duly and validly authorized, and, when the
Firm Shares are issued, delivered and paid for pursuant to this Agreement
and the Pricing Agreement with respect to such Designated Shares and, in
the case of any Optional Shares, pursuant to Over-allotment Options (as
defined in Section 3 hereof) with respect to such Shares, such Designated
Shares will be duly and validly issued and fully paid and non-assessable;
the Shares conform to the description thereof contained in the Registration
Statement and the Designated Shares will conform to the description thereof
-5-
<PAGE> 6
contained in the Prospectus as amended or supplemented with respect to such
Designated Shares;
(i) The issue and sale of the Shares and the compliance by the Company
with all of the provisions of this Agreement, any Pricing Agreement and
each Over-allotment Option, if any, and the consummation of the
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, excluding conflicts,
breaches, violations and defaults that, individually or in the aggregate,
will not have a material adverse effect on the business, consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, nor will such action result
in any violation of the provisions of the Restated Articles of Organization
or By-laws of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or any
Over-allotment Option, except such as have been, or will have been prior to
each Time of Delivery (as defined in Section 4 hereof), obtained under the
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters;
(j) Neither the Company nor any of its Material Subsidiaries is in
violation of its charter or By-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound, except for violations or defaults that,
individually or in the aggregate, will not have a material adverse effect
on the consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject, which will, in the Company's reasonable
belief, individually or in the aggregate, have a material adverse effect on
the business, consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole; and,
-6-
<PAGE> 7
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(l) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(n) Except as disclosed in or specifically contemplated by the
Prospectus, the Company has not been advised, and has no reason to believe,
that either the Company or any of its subsidiaries is not conducting
business in compliance with all applicable laws, rules and regulations of
the jurisdictions in which it is conducting business, including, without
limitation, all applicable local, state and federal environmental laws and
regulations, except where the failure to be so in compliance would not
materially adversely affect the general affairs, consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole;
(o) The Company and its subsidiaries have filed all necessary federal,
state and foreign income and franchise tax returns (or have timely filed
for extensions thereof), except in any case in which the failure so to file
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and have paid all taxes shown as due
thereon to the extent such taxes are due and payable, except in all cases
for any such tax that is being contested by the Company in good faith; and
except as disclosed in the Prospectus, the Company has no knowledge of any
tax deficiency which has been or might be asserted or threatened against
the Company or its subsidiaries which could materially and adversely affect
the business, operations or properties of the Company and its subsidiaries,
taken as a whole; and
(p) The Company has in good faith attempted to review its operations
and that of its subsidiaries and any third parties with which the Company
or any of its subsidiaries has a material relationship to evaluate the
extent to which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem. Except as set forth
in the Prospectus, to the knowledge of the Company, the Year 2000 Problem
will not have a material adverse effect on the business, consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole. The "Year 2000 Problem" as
used herein means any significant risk
-7-
<PAGE> 8
that computer hardware or software used in the receipt, transmission,
processing, manipulation, storage, retrieval, retransmission or other
utilization of data or in the operation of mechanical or electrical systems
of any kind will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the case of dates
or time periods occurring prior to January 1, 2000.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Shares and authorization by the Representatives of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "Over-allotment Option") to purchase at their election up to the number of
Optional Shares set forth in such Pricing Agreement, on the terms set forth in
the paragraph above, for the sole purpose of covering over-allotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the Company, given
within a period specified in the Pricing Agreement, setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by the Representatives but in no event
earlier than the First Time of Delivery (as defined in Section 4 hereof) or,
unless the Representatives and the Company otherwise agree in writing, earlier
than or later than the respective number of business days after the date of such
notice set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares to
be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives may
determine to the nearest 100 shares). The total number of Designated Shares to
be purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares which the Underwriters
elect to purchase.
4. Certificates for the Firm Shares and any Optional Shares to be purchased
by each Underwriter pursuant to the Pricing Agreement relating thereto, in the
form specified in such Pricing Agreement and in such authorized denominations
and registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor
-8-
<PAGE> 9
by wire transfer of Federal (same-day) funds to an account specified by the
Company to Goldman, Sachs & Co. at least forty-eight hours in advance as
specified in such Pricing Agreement, (i) with respect to the Firm Shares, all in
the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "First Time of Delivery," and (ii) with respect to the Optional Shares, if
any, in the manner and at the time and date specified by the Representatives in
the written notice given by the Representatives of the Underwriters' election to
purchase such Optional Shares, or at such other time and date as the
Representatives and the Company may agree upon in writing, such time and date,
if not the First Time of Delivery, herein called the "Second Time of Delivery."
Each such time and date for delivery is herein called a "Time of Delivery."
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Shares in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Shares or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Shares and prior to any Time of Delivery for such Shares which shall
be disapproved by the Representatives for such Shares promptly after
reasonable notice thereof; to advise the Representatives promptly of any
such amendment or supplement after any Time of Delivery for such Shares and
furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of such Shares, and
during such same period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or Prospectus relating
to the Shares, of the suspension of the qualification of such Shares for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any such stop order or of any such order preventing or suspending the
use of the Registration Statement or the Prospectus relating
-9-
<PAGE> 10
to the Shares or suspending any such qualification, promptly to use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for offering
and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Shares,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York business
day next succeeding the date of the applicable Pricing Agreement and from
time to time, to furnish the Underwriters with copies of the Prospectus as
amended or supplemented in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Shares and if at such time any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act or the Exchange Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning on the date of the Pricing Agreement
for such Designated Shares and continuing to and including the date 90 days
after the date of such Pricing Agreement for such Designated Shares, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to
the Designated Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than
pursuant to employee stock option plans existing on, or upon the conversion
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<PAGE> 11
of convertible or exchangeable securities outstanding as of, the date of
the Pricing Agreement for such Designated Shares) without the prior
written consent of the Representatives, except that the Company may issue
such securities in connection with the acquisition by merger, asset or
stock purchase or otherwise of the equity or all or substantially all of
the assets of a company, division, product line or business, provided that
prior to any such issuance Goldman, Sachs & Co. shall have received the
written agreement of the recipients of such securities to be bound by this
provision for the remainder of the 90-day period; and
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of the
applicable Pricing Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Blue Sky Memorandum,
closing documents (including compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey(s); (iv) any
filing fees incident to any required reviews by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares; (v) the cost of
preparing certificates for the Shares; (vi) the cost and charges of any transfer
agent or registrar or dividend disbursing agent; and (vii) all other costs and
expenses incident to the performance of its obligations hereunder and under any
Over-allotment Options which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Shares by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Shares under the
Pricing Agreement relating to such Designated Shares shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated by reference
in the Pricing Agreement relating to such
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<PAGE> 12
Designated Shares are, at and as of each Time of Delivery for such Designated
Shares, true and correct, the condition that the Company shall have performed
all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Shares shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Ropes & Gray, counsel for the Underwriters, shall have furnished
to the Representatives such opinion or opinions, dated each Time of
Delivery for such Designated Shares, with respect to the matters covered in
paragraphs (i) and (iii), and the unnumbered paragraph, of subsection (c)
and paragraphs (i), (ii), (v) and (vii) of subsection (d) below as well as
such other related matters as the Representatives may reasonably request,
and such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(c) Hale and Dorr LLP, counsel for the Company, shall have furnished
to the Representatives their written opinion, dated each Time of Delivery
for such Designated Shares, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Designated Shares (A) have been duly authorized and, when
issued, delivered and paid for in accordance with the terms of this
Agreement, will have been validly issued and will be fully paid and
non-assessable and (B) conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented;
(ii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Designated Shares or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement, except such as have been obtained
under the Act and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or Blue Sky laws (as to the applicability of which no
opinion need be expressed) in connection with the purchase and
distribution of the Designated Shares by the Underwriters;
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<PAGE> 13
(iii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery of the Designated Shares
(other than the financial statements and financial data and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the rules and regulations thereunder; and
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Shares have been duly authorized, executed and delivered by
the Company.
Such counsel shall also state, without passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, that nothing has come
to their attention that has led them to believe (a) that, as of the effective
date of the Registration Statement, the Registration Statement (or as of its
date, any amendment or supplement thereto made by the Company prior to the date
of such opinion) contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or (b) that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (c) that, as of the
Time of Delivery, the Registration Statement as amended contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(d) that, as of the Time of Delivery, the Prospectus as amended or supplemented
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
Such counsel need express no belief as to the financial statements, including
the notes and schedules thereto, or any financial data set forth or referred to
in the Registration Statement or the Prospectus.
(d) The General Counsel of the Company shall have furnished to the
Representatives his opinion, dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives, to
the effect that:
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<PAGE> 14
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of The Commonwealth of
Massachusetts, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iii) Each Material Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation (except with respect to
any such subsidiaries incorporated in jurisdictions where the concept of
good standing is not recognized, and except for any failure to be so
incorporated and existing which would not have a material adverse effect on
the business, consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole); and all of the issued shares of capital stock of each Material
Subsidiary have been duly and validly authorized and issued, are fully paid
and non-assessable, and (except as disclosed in the Annual Report on Form
10-K for the year ended ____, and except for directors' qualifying shares
or such shares as may be required by local laws to be owned by residents of
the jurisdiction of incorporation) are owned of record directly or
indirectly by the Company, to its knowledge free and clear of all liens,
encumbrances, equities or claims (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company or
its subsidiaries, provided that such counsel shall state that he believes
that both the Representatives and he are justified in relying upon such
opinions and certificates);
(iv) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the subject
which will, in such counsel's reasonable belief, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole; and, to such counsel's knowledge, no
such proceedings are threatened by governmental authorities or threatened
by others;
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<PAGE> 15
(v) This Agreement and the Pricing Agreement with respect to the
Designated Shares have been duly authorized, executed and delivered by the
Company;
(vi) The issue and sale of the Designated Shares being delivered at
such Time of Delivery and the compliance by the Company with all of the
provisions of this Agreement and the Pricing Agreement with respect to such
Designated Shares and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of the Restated Articles of Organization or By-laws of the
Company, nor will such actions conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the properties or
assets of the Company is subject, or any rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction
over the Company or any of its properties (except that such opinion shall
not extend to compliance with the anti-fraud provisions of Federal or state
securities laws); except for such conflicts, breaches, violations and
defaults as are not reasonably likely, individually or in the aggregate, to
have a material adverse effect on the business, consolidated financial
position, stockholders' equity, results of operations or prospects of the
Company and its subsidiaries, taken as a whole; and
(vii) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and financial
data and related schedules therein, as to which such counsel need express
no opinion), when they were filed with the Commission, complied as to form
in all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder; and he does not know of
any amendment to the Registration Statement required to be filed or of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in the
Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required.
Such counsel shall also state that he has no reason to believe that
any of the documents incorporated by reference in the Prospectus as amended
or supplemented, when they were so filed, contained an untrue statement of
a material fact or omitted to state a material fact necessary in order to
make the
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<PAGE> 16
statements therein, in the light of the circumstances under which they were
made when such documents were so filed, not misleading; and
(e) On the date of the Pricing Agreement for such Designated Shares at
a time prior to the execution of the Pricing Agreement with respect to such
Designated Shares and at the Time of Delivery for such Designated Shares,
the independent accountants of the Company who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) (i) The Company and its subsidiaries, taken as a whole, shall not
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Shares any material loss or interference with their businesses
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Agreement relating
to the Designated Shares, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior to
the date of the Pricing Agreement relating to the Designated Shares there
shall not have been any material change in the capital stock (other than
pursuant to the Company's employee and director stock and option plans and
repurchases of Common Stock of the Company pursuant to any previously
announced authorizations to do so) or any increase in the long-term debt of
the Company and its subsidiaries, taken as a whole, in excess of
$10,000,000 or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business,
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Shares, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Shares on the terms and
in the manner contemplated in the Prospectus as amended or supplemented
relating to the Designated Shares;
(g) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in the rating
accorded the Company's debt
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<PAGE> 17
securities or preferred stock by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(h) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange (the "Exchange"); (ii) a suspension or material
limitation in trading in the Company's securities on the Exchange; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Firm Shares or Optional Shares or both, as the case may be,
on the terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Designated Shares;
(i) The Designated Shares to be delivered at the applicable Time of
Delivery shall have been duly listed, subject to notice of issuance, on the
Exchange;
(j) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
business day next succeeding the date of the Pricing Agreement relating to
such Designated Shares; and
(k) The Company shall have furnished or caused to be furnished to the
Representatives at the applicable Time of Delivery for the Designated
Shares a certificate or certificates of officers of the Company (on behalf
of the Company) satisfactory to the Representatives as to the accuracy of
the representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of Delivery,
as to the matters set forth in subsections (a) and (f) of this Section and
as to such other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus,
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<PAGE> 18
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to
the Shares, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses
are incurred; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Shares, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Shares through the Representatives
expressly for use therein; and provided further, that the Company shall not
be liable to any Underwriter with respect to any Preliminary Prospectus or
any preliminary prospectus supplement, to the extent that any such loss,
claim, damage or liability of such Underwriter results solely from an
untrue statement of a material fact contained in, or the omission of a
material fact from, such Preliminary Prospectus, which untrue statement or
omission was corrected in the Prospectus, if the Company shall sustain the
burden of proving that (i) such Underwriter sold Shares to the person
alleging such loss, claim, damage or liability without sending or giving or
making available electronically, at or prior to the written confirmation of
such sale, a copy of the Prospectus to such person, (ii) delivery of a
Prospectus was required under the Act, and (iii) the Company delivered to
the Underwriters copies of such Prospectus in such quantities as they shall
have reasonably requested.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the
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<PAGE> 19
Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection and shall relieve it from liability under such subsection only
to the extent that such omission results in the forfeiture by the
indemnifying party of material rights or defenses with respect to such
action. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and, after notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
No indemnifying party shall be liable for any settlement of any claim or
action effected without its consent, which consent will not be unreasonably
withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Shares
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<PAGE> 20
on the other from the offering of the Designated Shares to which such loss,
claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one
hand and the Underwriters of the Designated Shares on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) was
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Shares in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Shares and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
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extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Shares or Optional Shares which it has agreed to purchase under
the Pricing Agreement relating to such Designated Shares, the
Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Designated Shares on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Firm Shares or Optional Shares, as the case may be, then the Company shall
be entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representatives to
purchase such Designated Shares on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company
that they have so arranged for the purchase of such Designated Shares, or
the Company notifies the Representatives that it has so arranged for the
purchase of such Designated Shares, the Representatives or the Company
shall have the right to postpone the applicable Time of Delivery for such
Designated Shares for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of
the Firm Shares or Optional Shares, as the case may be, to be purchased at
the respective Time of Delivery, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the number of Firm
Shares or Optional Shares, as the case may be, which such Underwriter
agreed to purchase under the Pricing Agreement relating to such Designated
Shares and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Firm Shares or Optional
Shares, as the case may be, which such Underwriter agreed to purchase under
such Pricing Agreement) of the Firm Shares or Optional Shares, as the case
may be, of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
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<PAGE> 22
(c) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of Firm Shares
or Optional Shares, as the case may be, which remains unpurchased
exceeds one-eleventh of the aggregate number of the Firm Shares or
Optional Shares, as the case may be, to be purchased at the respective
Time of Delivery, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above
to require non-defaulting Underwriters to purchase Firm Shares or
Optional Shares, as the case may be, of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Firm Shares
or the Over-allotment Option relating to such Optional Shares, as the
case may be, shall thereupon terminate, without liability on the part
of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter with respect to the Firm Shares or Optional Shares with
respect to which such Pricing Agreement shall have been terminated except as
provided in Sections 6 and 8 hereof; but if for any other reason Designated
Shares are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Shares, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Shares except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Shares shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
-22-
<PAGE> 23
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof.
Very truly yours,
EG&G, Inc.
By: --------------------------
Name:
-23-
<PAGE> 24
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Merrill Lynch & Co.
By:
-------------------------
(Goldman, Sachs & Co.)
-24-
<PAGE> 25
ANNEX I
PRICING AGREEMENT
-----------------
Goldman, Sachs & Co.,
Merrill Lynch & Co.
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
------------ ---, ----
Ladies and Gentlemen:
EG&G, Inc., a Massachusetts corporation (the "Company"), proposes, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated _________ ___, ____ (the "Underwriting Agreement"), between the Company on
the one hand and Goldman, Sachs & Co. and Merrill Lynch & Co. on the other hand,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Shares specified in Schedule II hereto (the "Designated
Shares" consisting of Firm Shares and any Optional Shares the Underwriters may
elect to purchase). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Shares which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Shares pursuant to Section 12 of
the Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
-1-
<PAGE> 26
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time and
place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto, and (b) in the event and to the extent that
the Underwriters shall exercise the election to purchase Optional Shares, as
provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company at the purchase price to the Underwriters set forth in
Schedule II hereto that portion of the number of Optional Shares as to which
such election shall have been exercised.
The Company hereby grants to each of the Underwriters the right to purchase
at their election up to the number of Optional Shares set forth opposite the
name of such Underwriter in Schedule I hereto on the terms referred to in the
paragraph above for the sole purpose of covering over-allotments in the sale of
the Firm Shares. Any such election to purchase Optional Shares may be exercised
by written notice from the Representatives to the Company given within a period
of 30 calendar days after the date of this Pricing Agreement, setting forth the
aggregate number of Optional Shares to be purchased and the date on which such
Optional Shares are to be delivered, as determined by the Representatives, but
in no event earlier than the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in writing, no earlier than two
or later than ten business days after the date of such notice.
-2-
<PAGE> 27
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
EG&G, Inc.
By: -----------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Merrill Lynch & Co.
By: ---------------------------
---------------------------
(Goldman, Sachs & Co.)
-3-
<PAGE> 28
SCHEDULE I
MAXIMUM NUMBER
NUMBER OF OF OPTIONAL
FIRM SHARES SHARES WHICH
UNDERWRITER TO BE PURCHASED MAY BE PURCHASED
----------- --------------- ----------------
GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO. INC.
TOTAL -----------------------------
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<PAGE> 29
SCHEDULE II
TITLE OF DESIGNATED SHARES:
NUMBER OF DESIGNATED SHARES:
Number of Firm Shares:
Maximum Number of Optional Shares:
INITIAL OFFERING PRICE TO PUBLIC:
[$........ per Share] [Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$........ per Share] [Formula]
[COMMISSION PAYABLE TO UNDERWRITERS:
$........ per Share in [specify same form of funds as in Specified Funds
below]]
FORM OF DESIGNATED SHARES:
Definitive form, to be made available for checking [and packaging] at least
twenty-four hours prior to the Time of Delivery at the office of [The Depository
Trust Company or its designated custodian] [the Representatives]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same-day) funds
[DESCRIBE ANY BLACKOUT PROVISIONS WITH RESPECT TO THE DESIGNATED SHARES]
TIME OF DELIVERY:
- ------ a.m. (New York City time), ------------, 19--
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]1:
- --------
(1) A description of particular tax, accounting or other unusual features
(including any event risk provisions) of the Designated Shares should be set
forth, or referenced to an
-5-
<PAGE> 30
SCHEDULE III
MATERIAL SUBSIDIARIES
----------------------
NAME STATE OR JURISDICTION OF INCORPORATION
- ---- --------------------------------------
- --------
attached or accompanying description, if necessary, to ensure agreement as to
the terms of the Designated Shares to be purchased and sold. Such a description
might appropriately be in the form in which such features will be described in
the Prospectus Supplement for the offering.
-6-
<PAGE> 31
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) audited and/or examined
by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related rules and regulations adopted by the Commission
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts and/or
condensed financial statements derived from audited financial statements of
the Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the representative
or representatives of the Underwriters (the "Representatives"), such term
to include an Underwriter or Underwriters who act without any Firm being
designated as its or their representatives, and are attached hereto;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly reports on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which [HAVE BEEN SEPARATELY FURNISHED TO THE REPRESENTATIVES] [ARE
ATTACHED HERETO]; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for financial
and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the [ACT AND THE EXCHANGE] Act and the related published
rules and regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements do
not comply as to form in all material respects with the applicable
accounting
-1-
<PAGE> 32
requirements of the [ACT AND THE EXCHANGE] Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301 and 503(d), respectively, of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
-2-
<PAGE> 33
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or
-3-
<PAGE> 34
other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with
the comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived
from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the
letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in relation to the applicable
Designated Shares for purposes of the letter delivered at the Time of
Delivery for such Designated Shares.
-4-
<PAGE> 1
Exhibit 23.1
ARTHUR ANDERSEN LLP
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 23, 1999
(except with respect to the matters discussed in Note 26, for which the date is
March 8, 1999) included in EG&G, Inc.'s Annual Report on Form 10-K for the year
ended January 3, 1999 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Boston, Massachusetts
May 21, 1999
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated April 9, 1998, relating to the consolidated financial statements of Lumen
Technologies, Inc. (formerly BEC Group, Inc.), which is included in the Current
Report on Form 8-K/A of EG&G, Inc. dated March 30, 1999. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Dallas, Texas
May 21, 1999
<PAGE> 1
Exhibit 23.4
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated
December 1, 1997 covering the historical statements of ILC Technology, Inc.
included in EG&G, Inc.'s Form 8-K/A and to all reference to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
San Jose, California
May 21, 1999
