<PAGE> 1
As filed with the Securities and Exchange Commission on June 28, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EG&G, INC.
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2052042
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
45 WILLIAM STREET, WELLESLEY, MASSACHUSETTS 02481
(Address of Principal Executive Offices) (Zip Code)
1999 INCENTIVE PLAN
(Full Title of the Plan)
TERRANCE L. CARLSON
SENIOR VICE PRESIDENT AND
GENERAL COUNSEL
EG&G, INC.
45 WILLIAM STREET
WELLESLEY, MASSACHUSETTS 02481
(Name and Address of Agent for Service)
(781) 237-5100
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 3,500,000 $31.19(1) $109,165,000(1) $30,347.87
$1.00 par value shares
================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee, and
based on the average of the high and low prices of the Common Stock on the
New York Stock Exchange on June 22, 1999 in accordance with Rules 457(c)
and 457(h) under the Securities Act of 1933.
================================================================================
<PAGE> 2
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Registrant's 1999 Incentive Plan, pursuant to Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant
to Section 13(a) or 15(d) of the Exchange Act, or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act that contains
audited financial statements for the Registrant's latest fiscal year
for which such statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the document referred to in (1) above.
(3) The description of the common stock of the
Registrant, $1.00 par value per share (the "Common Stock"), contained
in a registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
II-1
<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock being offered hereby will be
passed upon for the Company by Hale and Dorr LLP, Boston, Massachusetts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67, Chapter 156B of the General Laws of the
Commonwealth of Massachusetts, as amended (the "Massachusetts Business
Corporation Law"), and Article V, Section 9 of 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 stockholders or (iii) a vote adopted
by the holders of a majority of the shares of stock entitled to vote on the
election of directors. Unless otherwise provided in the articles of organization
or the 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 other financial records,
which are prepared by or presented by or under the supervision of (i) one or
more
II-2
<PAGE> 4
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
II-3
<PAGE> 5
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in
the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(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;
II-4
<PAGE> 6
provided, however, that paragraphs (i) and (ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
2. The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Wellesley, Massachusetts on June 28, 1999.
EG&G, INC.
By: /s/ Gregory L. Summe
-----------------------------------
Gregory L. Summe
President, Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY
We, the undersigned officers and directors of EG&G, Inc. hereby
severally constitute Gregory L. Summe, Robert F. Friel, Terrance L. Carlson and
David E. Redlick, and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said Registration Statement,
and generally to do all such things in our names and behalf in our capacities as
officers and directors to enable EG&G, Inc. to comply with all requirements of
the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/ Gregory L. Summe President, Chief Executive Officer June 28, 1999
- ------------------------- and Chairman of the Board of
Gregory L. Summe Directors (Principal Executive
Officer)
/s/ Robert F. Friel Senior Vice President June 28, 1999
- ------------------------- and Chief Financial
Robert F. Friel Officer (Principal
Financial Officer)
II-6
<PAGE> 8
/s/ Gregory D. Perry
- ------------------------------ Corporate Controller June 28, 1999
Gregory D. Perry (Principal Accounting
Officer)
/s/ Tamara J. Erickson Director June 28, 1999
- ------------------------------
Tamara J. Erickson
Director June 28, 1999
- ------------------------------
Kent F. Hansen
/s/ John F. Keane Director June 28, 1999
- ------------------------------
John F. Keane
/s/ Nicholas A. Lopardo Director June 28, 1999
- ------------------------------
Nicholas A. Lopardo
Director June 28, 1999
- ------------------------------
Greta E. Marshall
/s/ Michael C. Ruettgers Director June 28, 1999
- ------------------------------
Michael C. Ruettgers
/s/ Gabriel Schmergel Director June 28, 1999
- ------------------------------
Gabriel Schmergel
/s/ John Larkin Thompson Director June 28, 1999
- ------------------------------
John Larkin Thompson
Director June 28, 1999
- ------------------------------
G. Robert Tod
II-7
<PAGE> 9
EXHIBIT INDEX
Exhibit
Number Description
------ -----------
4.1 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.
4.2 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.
4.3 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.
4.4 Specimen Certificate of Common Stock, $1.00 par value per share, of
the Registrant is incorporated herein by reference from Exhibit 4(a)
to the Registrant's Registration Statement on Form S-3 (File No.
2-69642).
#5.1 Opinion of Hale and Dorr LLP.
#23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
#23.2 Consent of Arthur Andersen LLP, Boston.
#23.3 Consent of Arthur Andersen LLP, San Jose.
#23.4 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included on pages II-6 and II-7 of this
Registration Statement).
#99.1 1999 Incentive Plan of the Registrant, as amended.
- ----------
# Filed herewith
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<PAGE> 1
EXHIBIT 5.1
HALE AND DORR LLP
Counsellors At Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
June 28, 1999
EG&G, Inc.
45 William Street
Wellesley, Massachusetts 02481
Re: 1999 Incentive Plan
-------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to an aggregate of 3,500,000 shares of Common Stock, $1.00 par value
per share (the "Shares"), of EG&G, Inc., a Massachusetts corporation (the
"Company"), issuable under the Company's 1999 Incentive Plan (the "Plan").
We have examined the Restated Articles of Organization of the Company,
as amended to date, and the Bylaws of the Company, as amended to date, and
originals, or copies certified to our satisfaction, of all pertinent records of
the meetings of the directors and stockholders of the Company, the Registration
Statement and such other documents relating to the Company as we have deemed
material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
completeness and accuracy of all corporate records provided to us, the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer
and sale of the Shares in accordance with the Plan, to register and qualify the
Shares for sale under all applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or
jurisdiction other than the state laws of The Commonwealth of Massachusetts and
the federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and, when the Shares are issued
and paid for in accordance with the terms and conditions of the Plan, the Shares
will be validly issued, fully paid and nonassessable.
<PAGE> 2
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein under the caption "Interests of Named Experts and Counsel." In
giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
-------------------------------
HALE AND DORR LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
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 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
June 23, 1999
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 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 references to our Firm included
in this registration statement.
/s/ Arthur Andersen LLP
San Jose, California
June 23, 1999
<PAGE> 1
Exhibit 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 9, 1998, relating to the
consolidated financial statements of Lumen Technologies, Inc. (formerly BEC
Group, Inc.), which appears in EG&G, Inc.'s Report on Form 8-K/A of EG&G, Inc.
dated March 30, 1999.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Dallas, Texas
June 28, 1999
<PAGE> 1
EXHIBIT 99.1
EG&G, Inc.
1999 INCENTIVE PLAN
1. PURPOSE
The purpose of this 1999 Incentive Plan (the "Plan") of EG&G, Inc., a
Massachusetts corporation (the "Company"), is to advance the interests of the
Company's stockholders by enhancing the Company's ability to attract, retain and
motivate persons who make (or are expected to make) important contributions to
the Company by providing such persons with equity ownership opportunities and
performance-based incentives and thereby better aligning the interests of such
persons with those of the Company's stockholders. Except where the context
otherwise requires, the term "Company" shall include any of the Company's
present or future subsidiary corporations as defined in Section 424(f) of the
Internal Revenue Code of 1986, as amended, and any regulations promulgated
thereunder (the "Code") and any other business venture (including, without
limitation, a joint venture or limited liability company) in which the Company
has a significant interest, as determined by the Board of Directors of the
Company (the "Board").
2. ELIGIBILITY
All of the Company's employees, officers, directors, consultants and
advisors (and any individuals who have accepted an offer for employment) are
eligible to be granted options, restricted stock awards, performance units,
other stock-based awards or cash performance awards (each, an "Award") under the
Plan. Each person who has been granted an Award under the Plan shall be deemed a
"Participant".
3. ADMINISTRATION, DELEGATION
(a) ADMINISTRATION BY BOARD OF DIRECTORS. The Plan will be administered by
the Board. The Board shall have authority to grant Awards and to adopt, amend
and repeal such administrative rules, guidelines and practices relating to the
Plan as it shall deem advisable. The Board may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or any Award in the manner
and to the extent it shall deem expedient to carry the Plan into effect and it
shall be the sole and final judge of such expediency. All decisions by the Board
shall be made in the Board's sole discretion and shall be final and binding on
all persons having or claiming any interest in the Plan or in any Award. No
director or person acting pursuant to the authority delegated by
<PAGE> 2
the Board shall be liable for any action or determination relating to or under
the Plan made in good faith.
(b) DELEGATION TO EXECUTIVE OFFICERS. To the extent permitted by applicable
law, the Board may delegate to one or more executive officers of the Company the
power to make Awards and exercise such other powers under the Plan as the Board
may determine, provided that the Board shall fix (i) the maximum number of
shares subject to Awards and (ii) the maximum number of shares for any one
Participant to be made by such executive officers.
(c) APPOINTMENT OF COMMITTEES. To the extent permitted by applicable law,
the Board may delegate any or all of its powers under the Plan to one or more
committees or subcommittees of the Board (a "Committee"). The Board shall
appoint one such Committee of not less than two members, each member of which
shall be an "outside director" within the meaning of Section 162(m) of the Code
and a "non-employee director" as defined in Rule 16b-3 promulgated under the
Exchange Act. All references in the Plan to the "Board" shall mean the Board or
a Committee of the Board or the executive officer referred to in Section 3(b) to
the extent that the Board's powers or authority under the Plan have been
delegated to such Committee or executive officer.
4. STOCK AVAILABLE FOR AWARDS
(a) NUMBER OF SHARES. Subject to adjustment under Section 9, Awards may be
made under the Plan for up to 3,500,000 shares of common stock, $1.00 par value,
of the Company (the "Common Stock"). If any Award expires or is terminated,
surrendered or canceled without having been fully exercised or is forfeited in
whole or in part or results in any Common Stock not being issued, the unused
Common Stock covered by such Award shall again be available for the grant of
Awards under the Plan, subject, however, in the case of Incentive Stock Options
(as hereinafter defined), to any limitation required under the Code. Shares
issued under the Plan may consist in whole or in part of authorized but unissued
shares or treasury shares.
(b) PER-PARTICIPANT LIMIT. Subject to adjustment under Section 9, the
maximum number of shares of Common Stock with respect to which an Award may be
granted to any Participant under the Plan shall be 500,000 per calendar year.
The per-Participant limit described in this Section 4(b) shall be construed and
applied consistently with Section 162(m) of the Code.
(c) OTHER LIMITS. Subject to adjustment under Section 8, the maximum number
of shares of Common Stock that may be issued under the Plan pursuant to all
Awards that are not Options, including without limitation Restricted Stock
Awards, shall be 400,000. The principles of the second sentence of Section 4(a)
shall apply to this Section 4(c).
2
<PAGE> 3
5. STOCK OPTIONS
(a) GENERAL. The Board may grant options to purchase Common Stock (each, an
"Option") and determine the number of shares of Common Stock to be covered by
each Option, the exercise price of each Option and the conditions and
limitations applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an Incentive Stock
Option (as hereinafter defined) shall be designated a "Nonstatutory Stock
Option".
(b) INCENTIVE STOCK OPTIONS. An Option that the Board intends to be an
"incentive stock option" as defined in Section 422 of the Code (an "Incentive
Stock Option") shall only be granted to employees of the Company and shall be
subject to and shall be construed consistently with the requirements of Section
422 of the Code. The Company shall have no liability to a Participant, or any
other party, if an Option (or any part thereof) which is intended to be an
Incentive Stock Option is not an Incentive Stock Option.
(c) EXERCISE PRICE. The Board shall establish the exercise price at the
time each Option is granted and specify it in the applicable option agreement;
provided, however, that the exercise price shall not be less than 100% of the
fair market value of the Common Stock, as determined by the Board, at the time
the Option is granted, or par value, if greater.
(d) DURATION OF OPTIONS. Each Option shall be exercisable at such times and
subject to such terms and conditions as the Board may specify in the applicable
option agreement; provided, however, that no Option will be granted for a term
in excess of 10 years.
(e) EXERCISE OF OPTION. Options may be exercised by delivery to the Company
of a written notice of exercise signed by the proper person or by any other form
of notice (including electronic notice) approved by the Board together with
payment in full as specified in Section 5(f) for the number of shares for which
the Option is exercised.
(f) PAYMENT UPON EXERCISE. Common Stock purchased upon the exercise of an
Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may, in its sole discretion, otherwise provide in
an option agreement, by (i) delivery of an irrevocable and unconditional
undertaking by a creditworthy broker to deliver promptly to the Company
sufficient funds to pay the exercise price or (ii) delivery by the Participant
to the Company of a copy of irrevocable
3
<PAGE> 4
and unconditional instructions to a creditworthy broker to deliver promptly to
the Company cash or a check sufficient to pay the exercise price;
(3) when the Common Stock is registered under the Securities Exchange Act
of 1934, by delivery of shares of Common Stock owned by the Participant valued
at their fair market value as determined by (or in a manner approved by) the
Board in good faith ("Fair Market Value"), provided (i) such method of payment
is then permitted under applicable law and (ii) such Common Stock was owned by
the Participant at least six months prior to such delivery;
(4) to the extent permitted by the Board, in its sole discretion by (i)
delivery of a promissory note of the Participant to the Company on terms
determined by the Board, or (ii) payment of such other lawful consideration as
the Board may determine; or
(5) by any combination of the above permitted forms of payment.
6. RESTRICTED STOCK
(a) GRANTS. The Board may grant Awards entitling recipients to acquire
shares of Common Stock, subject to the right of the Company to repurchase all or
part of such shares at their issue price or other stated or formula price (or to
require forfeiture of such shares if issued at no cost) from the recipient in
the event that conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable restriction period or periods
established by the Board for such Award (each, a "Restricted Stock Award").
(b) TERMS AND CONDITIONS. The Board shall determine the terms and
conditions of any such Restricted Stock Award, including the conditions for
repurchase (or forfeiture) and the issue price, if any. Any stock certificates
issued in respect of a Restricted Stock Award shall be registered in the name of
the Participant and, unless otherwise determined by the Board, deposited by the
Participant, together with a stock power endorsed in blank, with the Company (or
its designee). At the expiration of the applicable restriction periods, the
Company (or such designee) shall deliver the certificates no longer subject to
such restrictions to the Participant or if the Participant has died, to the
beneficiary designated, in a manner determined by the Board, by a Participant to
receive amounts due or exercise rights of the Participant in the event of the
Participant's death (the "Designated Beneficiary"). In the absence of an
effective designation by a Participant, Designated Beneficiary shall mean the
Participant's estate.
7. OTHER STOCK-BASED AWARDS
The Board shall have the right to grant other Awards based upon the
Common Stock having such terms and conditions as the Board may determine,
including the
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grant of shares based upon certain conditions, the grant of securities or other
awards convertible into Common Stock and the grant of stock appreciation rights.
8. PERFORMANCE AWARDS.
(a) ADMINISTRATION. This Section 8 shall be administered by a Committee
appointed by the Board. Unless otherwise determined by the Board, the Committee
shall be the Compensation Committee.
(b) GRANTS. The Committee may grant Performance Awards entitling recipients
to receive shares of Common Stock, cash, or any combination thereof, based on
Company performance over a specified period. The Committee may grant any number
of Performance Awards to any particular participant and a Performance Award may
have a performance period that overlaps the performance period of another
Performance Award.
(c) TERMS AND CONDITIONS. Each Performance Award shall establish the
performance period, not shorter than one year, over which the performance goals
of the Company must be achieved; the performance goals which must be achieved;
and the amount of the award which will be earned or forfeited based on the
extent to which the performance goals are achieved for the performance period.
The Committee may establish objective formulas for determining the size of the
Performance Award based on the level of achievement of the performance goals
over the performance period.
(d) PERFORMANCE GOALS. The performance goals which the Committee may
establish with respect to any Performance Award may include any one or more of
(a) earnings per share, (b) return on average equity or average assets with
respect to a pre-determined peer group, (c) earnings, (d) earnings growth, (e)
revenues, (f) expenses, (g) stock price, (h) market share, (i) return on sales,
assets, equity or investment, (j) regulatory compliance, (k) improvement of
financial ratings, (l) achievement of balance sheet or income statement
objectives, (m) economic value added(R), (n) total shareholder return, (o) net
operating profit after tax, (p) pre-tax or after-tax income, (q) cash flow, or
(r) such other objective goals established by the Board, and may be absolute in
their terms or measured against or in relationship to other companies
comparably, similarly or otherwise situated. Such performance goals may be
adjusted to exclude any one or more of (i) extraordinary items, (ii) gains or
losses on the dispositions of discontinued operations, (iii) the cumulative
effects of changes in accounting principles, (iv) the writedown of any asset,
and (v) charges for restructuring and rationalization programs. Such performance
goals may be particular to a Participant or the department, branch, line of
business, subsidiary or other unit in which the Participant works and may cover
such period (not shorter than one year) as may be specified by the Board.
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(e) LIMITS. The maximum payment which may be made pursuant to Performance
Awards granted to any Participant in any year shall not exceed $ 2,000,000,
valuing Common Stock distributed in the satisfaction of a Performance Award at
its fair market value on the date of payment.
(f) PAYMENT. At the end of the performance period with respect to which a
Performance Award is granted, the Committee shall determine the amount, if any
to be paid to the Participant based on the level of the performance goals
established by the Committee for purposes of the Performance Award and shall
authorize the Company to pay the Participant the amount so determined. The
Committee may at any time, in its sole discretion, cancel a Performance Award or
reduce or eliminate the amount payable with respect to a Performance Award
without the consent of the Participant.
9. ADJUSTMENTS FOR CHANGES IN COMMON STOCK AND CERTAIN OTHER EVENTS
(a) CHANGES IN CAPITALIZATION. In the event of any stock split, reverse
stock split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in capitalization
or event, or any distribution to holders of Common Stock other than a normal
cash dividend, (i) the number and class of securities available under this Plan,
(ii) the per-Participant limit set forth in Section 4(b) and the limits set
forth in Section 4(c), (iv) the number and class of securities and exercise
price per share subject to each outstanding Option, (v) the repurchase price per
share subject to each outstanding Restricted Stock Award, and (vi) the terms of
each other outstanding Award shall be appropriately adjusted by the Company (or
substituted Awards may be made, if applicable) to the extent the Board shall
determine, in good faith, that such an adjustment (or substitution) is necessary
and appropriate. If this Section 9(a) applies and Section 9(c) also applies to
any event, Section 9(c) shall be applicable to such event, and this Section 9(a)
shall not be applicable.
(b) LIQUIDATION OR DISSOLUTION. In the event of a proposed liquidation or
dissolution of the Company, the Board shall upon written notice to the
Participants provide that all then unexercised Options will (i) become
exercisable in full as of a specified time at least 10 business days prior to
the effective date of such liquidation or dissolution and (ii) terminate
effective upon such liquidation or dissolution, except to the extent exercised
before such effective date. The Board may specify the effect of a liquidation or
dissolution on any Restricted Stock Award or other Award granted under the Plan
at the time of the grant of such Award.
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(c) ACQUISITION EVENTS
(1) DEFINITION. An "Acquisition Event" shall mean: (a)
any merger or consolidation of the Company with or into another entity as a
result of which the Common Stock is converted into or exchanged for the right to
receive cash, securities or other property or (b) any exchange of shares of the
Company for cash, securities or other property pursuant to a statutory share
exchange transaction.
(2) CONSEQUENCES OF AN ACQUISITION EVENT ON OPTIONS. Upon
the occurrence of an Acquisition Event, or the execution by the Company of any
agreement with respect to an Acquisition Event, the Board shall provide that all
outstanding Options shall be assumed, or equivalent options shall be
substituted, by the acquiring or succeeding corporation (or an affiliate
thereof). For purposes hereof, an Option shall be considered to be assumed if,
following consummation of the Acquisition Event, the Option confers the right to
purchase, for each share of Common Stock subject to the Option immediately prior
to the consummation of the Acquisition Event, the consideration (whether cash,
securities or other property) received as a result of the Acquisition Event by
holders of Common Stock for each share of Common Stock held immediately prior to
the consummation of the Acquisition Event (and if holders were offered a choice
of consideration, the type of consideration chosen by the holders of a majority
of the outstanding shares of Common Stock); provided, however, that if the
consideration received as a result of the Acquisition Event is not solely common
stock of the acquiring or succeeding corporation (or an affiliate thereof), the
Company may, with the consent of the acquiring or succeeding corporation,
provide for the consideration to be received upon the exercise of Options to
consist solely of common stock of the acquiring or succeeding corporation (or an
affiliate thereof) equivalent in fair market value to the per share
consideration received by holders of outstanding shares of Common Stock as a
result of the Acquisition Event.
Notwithstanding the foregoing, if the acquiring or succeeding
corporation (or an affiliate thereof) does not agree to the foregoing assumption
of, or substitution for, such Options, then the Board shall, upon written notice
to the Participants, provide that all then unexercised Options will become
exercisable in full as of a specified time prior to the Acquisition Event and
will terminate immediately prior to the consummation of such Acquisition Event,
except to the extent exercised by the Participants before the consummation of
such Acquisition Event; provided, however, that in the event of an Acquisition
Event under the terms of which holders of Common Stock will receive upon
consummation thereof a cash payment for each share of Common Stock surrendered
pursuant to such Acquisition Event (the "Acquisition Price"), then the Board may
instead provide that all outstanding Options shall terminate upon consummation
of such Acquisition Event and that each Participant shall receive, in exchange
therefor, a cash payment equal to the amount (if any) by which (A) the
Acquisition Price multiplied by the number of shares of Common Stock subject to
such
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outstanding Options (whether or not then exercisable), exceeds (B) the aggregate
exercise price of such Options.
(3) CONSEQUENCES OF AN ACQUISITION EVENT ON RESTRICTED
STOCK AWARDS. Upon the occurrence of an Acquisition Event, the repurchase and
other rights of the Company under each outstanding Restricted Stock Award shall
inure to the benefit of the Company's successor and shall apply to the cash,
securities or other property which the Common Stock was converted into or
exchanged for pursuant to such Acquisition Event in the same manner and to the
same extent as they applied to the Common Stock subject to such Restricted Stock
Award.
(4) CONSEQUENCES OF AN ACQUISITION EVENT ON OTHER AWARDS.
The Board shall specify the effect of an Acquisition Event on any other Award
granted under the Plan at the time of the grant of such Award.
10. GENERAL PROVISIONS APPLICABLE TO AWARDS
(a) TRANSFERABILITY OF AWARDS. Except as the Board may otherwise determine
or provide in an Award, Awards shall not be sold, assigned, transferred, pledged
or otherwise encumbered by the person to whom they are granted, either
voluntarily or by operation of law, except by will or the laws of descent and
distribution, and, during the life of the Participant, shall be exercisable only
by the Participant. References to a Participant, to the extent relevant in the
context, shall include references to authorized transferees.
(b) DOCUMENTATION. Each Award shall be evidenced by a written instrument in
such form as the Board shall determine; such written instrument may be in the
form of an agreement signed by the Company and the Participant or a written or
electronic confirming memorandum from the Company to the Participant. Each Award
may contain terms and conditions in addition to those set forth in the Plan.
(c) BOARD DISCRETION. Except as otherwise provided by the Plan, each Award
may be made alone or in addition or in relation to any other Award. The terms of
each Award need not be identical, and the Board need not treat Participants
uniformly.
(d) TERMINATION OF STATUS. The Board shall determine the effect on an Award
of the disability, death, retirement, authorized leave of absence or other
change in the employment or other status of a Participant and the extent to
which, and the period during which, the Participant, the Participant's legal
representative, conservator, guardian or Designated Beneficiary may exercise
rights under the Award.
(e) WITHHOLDING. Each Participant shall pay to the Company, or make
provision satisfactory to the Board for payment of, any taxes required by law to
be withheld in
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connection with Awards to such Participant no later than the date
of the event creating the tax liability. Except as the Board may otherwise
provide in an Award, Participants may, to the extent then permitted under
applicable law, satisfy such tax obligations in whole or in part by delivery of
shares of Common Stock, including shares retained from the Award creating the
tax obligation, valued at their Fair Market Value. The Company may, to the
extent permitted by law, deduct any such tax obligations from any payment of any
kind otherwise due to a Participant.
(f) AMENDMENT OF AWARD. The Board may amend, modify or terminate any
outstanding Award, including but not limited to, substituting therefor another
Award of the same or a different type, changing the date of exercise or
realization, and converting an Incentive Stock Option to a Nonstatutory Stock
Option, provided that the Participant's consent to such action shall be required
unless the Board determines that the action, taking into account any related
action, would not materially and adversely affect the Participant.
(g) CONDITIONS ON DELIVERY OF STOCK. The Company will not be obligated to
deliver any shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan until (i) all
conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company's counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
(h) ACCELERATION. The Board may at any time provide that any Options shall
become immediately exercisable in full or in part, that any Restricted Stock
Awards shall be free of restrictions in full or in part or that any other Awards
may become exercisable in full or in part or free of some or all restrictions or
conditions, or otherwise realizable in full or in part, as the case may be.
(i) DEFERRAL. An optionee who is entitled, by authority of the Board of
Directors, to defer his or her compensation pursuant to any deferred
compensation plan maintained by the Company may elect, in accordance with rules
established by the Board, to defer receipt of any shares of Common Stock
issuable upon the exercise of an option, provided that such election is
irrevocable and made at least that number of days prior to the exercise of the
option which shall be determined by the Board. The optionee's account under such
deferred compensation plan shall be credited with a number of stock units equal
to the number of shares so deferred.
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11. MISCELLANEOUS
(a) NO RIGHT TO EMPLOYMENT OR OTHER STATUS. No person shall have any claim
or right to be granted an Award, and the grant of an Award shall not be
construed as giving a Participant the right to continued employment or any other
relationship with the Company. The Company expressly reserves the right at any
time to dismiss or otherwise terminate its relationship with a Participant free
from any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) NO RIGHTS AS STOCKHOLDER. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
stockholder with respect to any shares of Common Stock to be distributed with
respect to an Award until becoming the record holder of such shares.
Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the
number of shares subject to such Option are adjusted as of the date of the
distribution of the dividend (rather than as of the record date for such
dividend), then an optionee who exercises an Option between the record date and
the distribution date for such stock dividend shall be entitled to receive, on
the distribution date, the stock dividend with respect to the shares of Common
Stock acquired upon such Option exercise, notwithstanding the fact that such
shares were not outstanding as of the close of business on the record date for
such stock dividend.
(c) EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective on the
date on which it is adopted by the Board, but no Award granted to a Participant
designated by the Board as subject to Section 162(m) of the Code by the Board
shall become exercisable, vested or realizable, as applicable to such Award,
unless and until the Plan has been approved by the Company's stockholders to the
extent stockholder approval is required by Section 162(m) in the manner required
under Section 162(m) (including the vote required under Section 162(m)). No
Awards shall be granted under the Plan after the completion of ten years from
the earlier of (i) the date on which the Plan was adopted by the Board or (ii)
the date the Plan was approved by the Company's stockholders, but Awards
previously granted may extend beyond that date.
(d) AMENDMENT OF PLAN. The Board may amend, suspend or terminate the Plan
or any portion thereof at any time, provided that to the extent required by
Section 162(m) of the Code, no Award granted to a Participant designated as
subject to Section 162(m) by the Board after the date of such amendment shall
become exercisable, realizable or vested, as applicable to such Award (to the
extent that such amendment to the Plan was required to grant such Award to a
particular Participant), unless and until such amendment shall have been
approved by the Company's stockholders as required by Section 162(m) (including
the vote required under Section 162(m)).
(e) PROVISIONS FOR FOREIGN EMPLOYEES. The Board may, without amending the
Plan, modify options granted to employees who are foreign naturals or who are
employed
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outside the United States to recognize differences in laws, rules, regulations
or customs of such foreign jurisdictions with respect to tax, securities,
currency, employee benefits or other matters.
(f) GOVERNING LAW. The provisions of the Plan and all Awards made hereunder
shall be governed by and interpreted in accordance with the laws of the
Commonwealth of Massachusetts, without regard to any applicable conflicts of
law.
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EG&G, Inc.
AMENDMENT NO. 1 TO
1999 INCENTIVE PLAN
Adopted by the Board of Directors on April 27, 1999
Reference is hereby made to the EG&G, Inc. 1999 Incentive Plan adopted
by the Board on January 20, 1999 and approved by the stockholders of the Company
on April 27, 1999 (the "Plan").
1. AMENDMENT TO PLAN. Section 10(f) of the Plan is hereby deleted
in its entirety.
2. RATIFICATION OF PLAN. Except as specifically amended and
modified by this Amendment No. 1 to the Plan the terms and provisions of the
Plan are in all respects ratified and confirmed.
3. CAPITALIZED TERMS. All capitalized terms not otherwise defined
herein shall have the respective meanings ascribed to them in the Plan.
