AGREEMENT
This Agreement is entered as of May 5, 1995, between The
Perkin-Elmer Corporation (herein referred to as the "Company")
and Riccardo Pigliucci (herein referred to as "Employee").
WHEREAS, Employee has rendered valuable services to the
Company during the past 29 years, and during that time has
been uniquely disadvantaged due to his work location being in
various countries where his pension benefits have not
consistently accrued as they otherwise would have; and
WHEREAS, the Board of Directors of the Company regards
the services of Employee, who currently holds the position of
President and Chief Operating Officer of the Company, as
having been uniquely important to the Company's operations;
and
WHEREAS, the Board of Directors of the Company and
Employee wish to terminate the Employee's employment with the
Company on the terms hereinafter set forth;
NOW, THEREFORE, in consideration of Employee's past
service to the Company and the other mutual covenants
contained herein, the parties agree as follows:
1. The Company shall obtain, within ten days following
execution of this Agreement, an irrevocable annuity payable to
the Employee consistent with the terms set forth in Exhibit A
to this Agreement.
2. A. Immediately upon execution of this Agreement by
both the Company and Employee, Employee shall tender to the
Board of Directors of the Company his resignation as an
employee, officer, and director of the Company and its
subsidiaries, such resignation to be in the form attached
hereto as Exhibit B. Such resignation, when effective, is
hereinafter referred to as the "Termination." Employee also
agrees to cooperate with the Company's reasonable requests in
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connection with effectuating such resignation, such as, for
example, executing resignation letters for subsidiaries of the
Company.
B. Commencing with the Termination, the Company
agrees to:
i) Pay to Employee seventy-eight (78) equal biweekly
installments of
$17,308 each, commencing with the payroll period
immediately following the Termination and ending at a
date three years thereafter. Employee understands
that the Company will deduct from these payments
withholding taxes and other deductions in accordance
with normal Company practices.
ii)Consider Employee on a personal leave of absence
from the Company for a period of 24 months following
the Termination solely in order to be eligible for
the following benefits and any other similar benefits
in effect at the time of Termination:
a) Coverage under the applicable provisions of the
Company's CHOICE Program for medical, dental, and
basic life insurance; and
b) Participation in the Retirement Plan, Supplemental
Retirement Plan, and Profit Sharing and Savings
Plan.
iii) Provide medical insurance benefits to Employee
and Employee's eligible family comparable to
(including cost sharing) those provided under the
Company's CHOICE Program, during the period of time
between the end of the leave of absence period
referenced in Section 2.B(ii) and Employee's sixty-
fifth birthday and following Employee's sixty-fifth
birthday provide medical insurance benefits to
Employee and Employee's eligible family comparable to
(including cost sharing) those provided under the
Company's medical insurance plans (including any
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plans supplemental to Medicare or any program that is
a successor to Medicare) to the Company's retirees as
if Employee had continued in employment with the
Company until his sixty-fifth birthday and retired on
that date. Medical insurance benefits prior to age
65 shall terminate if and when Employee commences
work for another employer with similar coverage, and
the obligation to provide medical insurance benefits
subsequent to age 65 will terminate when Employee
commences work for another employer that provides any
post-65 retiree medical benefits for which Employee
is eligible.
iv)All benefits under Sections 2.B(ii) and (iii) will
be provided in accordance with the benefit plan
provisions in effect at the time such benefits are
provided to Employee and/or Employee's eligible
family. Employee acknowledges that the Company has
reserved the right to alter, amend or terminate such
plans, but for purposes of any such alteration,
amendment or termination, Employee should be treated
comparably to other senior officers of the Company
and as if he had continued in employment with the
Company until his 65th birthday and retired on that
date.
C. Immediately following the Termination, the stock
options previously granted to Employee pursuant to the
Company's stock option plans shall become fully vested. The
last day of the above-described leave of absence (the "Leave
Termination Date") will be treated as Employee's termination
date for purposes of rights associated with any options held
by the Employee under the Company's Stock Option Plans and
Stock Purchase Plan.
D. Employee's Deferred Compensation Contract with the
Company shall be fully vested and non-forfeitable upon
Employee's attainment of age sixty (or upon his earlier death)
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and shall be paid over a period of ten years commencing on
Employee's sixtieth birthday (or on the date of his earlier
death).
E. For a period of 36 months following the Termination,
the Company shall provide Employee with use of a company car
and reimbursement of operating expenses as provided under
current Company policy and consistent with Employee's prior
position as President and Chief Operating Officer. During the
37th month following the Termination, the Company shall permit
Employee to purchase said car at its then market value, such
value to be determined in good faith by the Company. In the
event Employee commences work for another Employer which
provides Employee with use of a comparable car, the above
stated 36 month period will be deemed to have elapsed.
F. Immediately following Termination, the Company shall
make available to Employee the services of an outplacement
consultant in accordance with the Company's standard
arrangements with Drake Beam Morin Inc. or with whatever
substantially similar firm with whom the Company is doing
business at the time of Termination and will provide financial
planning and tax preparation services consistent with the
Company's practice for senior management personnel for a
period of 36 months following the Termination.
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G. The Company shall pay to Employee a share of the
Contingent Compensation award for fiscal year 1995 that would
otherwise be made to Employee on a prorata basis for that
portion of the fiscal year prior to Employee's Termination.
Such payment shall be made on or about the time Contingent
Compensation awards for that fiscal year are made to other
eligible employees. Employee shall not be eligible for any
Contingent Compensation award associated with fiscal years
following the Termination.
3. Employee acknowledges and agrees that the benefits
provided under Section 2 are in lieu of and in excess of the
Company's standard severance benefits. Employee understands
and agrees that, except for pension or other retirement
benefits to which the Employee may be entitled under the
Company's standard retirement programs, Employee shall receive
no further wage, vacation, severance or other benefits from
the Company beyond those described in Section 2. Furthermore,
upon Employee's commencing receipt of benefits pursuant to
Section 2, Employee's Employment Agreement dated November 21,
1991 with the Company shall immediately terminate.
4. A. Employee agrees not to:
i) for a period of 36 months following the
Termination, solicit for employment, either directly
or through any corporation or other business entity
of which Employee may become an officer, director,
employee, or agent, any then current employee(s) of
the Company, who were employed by the Company prior
to the Termination, for any business activities,
whether competitive or not;
ii) make any derogatory statement, public or
otherwise, concerning the Company, its officers, or
its directors;
iii) criticize, denigrate, or disparage the
Company, its officers, or its directors;
iv) assist or participate in any activities that
would trigger a "Change in Control" as such term is
defined in Employee's former Employment Agreement
dated November 21, 1991 with the Company;
v) initiate, participate, or assist in any activity
specifically directed toward, and not solicited by,
the Company, its officers, or its directors other
than good faith, commercially acceptable activities
between business competitors; and
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vi) engage in any other activities, directly or
indirectly, which may be deemed contrary to the best
interests of the Company, its officers, or its
directors.
Notwithstanding Section 4.A(vi) but subject to the other
restrictions in this Section 4, the parties acknowledge and
agree that Employee shall not be prevented from entering into
employment with, and carrying out his legitimate obligations
to, business associations which may be competitive with the
Company's businesses.
B. The Company, its officers, and its directors agree not
to make any derogatory statement, public or otherwise,
concerning Employee. The Company and Employee also agree to
the Company making a press release in the form attached hereto
as Exhibit C. The Company shall not make any other press
releases regarding the Employee without Employee's prior
consent, such consent not to be withheld unreasonably.
C. Employee is reminded of the terms of Employee's
confidentiality agreement with the Company, which, among other
things, prohibits Employee from using, or disclosing to
others, any confidential business or technical information
belonging to the Company, and Employee expressly acknowledges
his understanding and agreement that such confidentiality
agreement remains in full force and effect. Employee also
acknowledges that, in his capacity as an officer of the
Company, he has regularly been privy to confidential or
proprietary information that he will not disclose or misuse
following the Termination. Employee also agrees to return
promptly to the Company all files, documents, records, credit
cards, keys, and any other Company property in his possession,
custody or control. This paragraph shall be deemed a material
term of this Agreement.
D. In consideration of the benefits under this Agreement,
Employee releases, waives, and forever discharges the Company,
any related companies, any Company insurer or benefit plan,
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and the past or present employees, officers, representatives,
agents and directors of any of them from all claims, demands,
actions, suits, covenants, contracts, agreements, promises and
liabilities of any kind whatsoever, known or unknown which
Employee, Employee's heirs, executors or assigns may have had,
now have or could in the future have including, without
limitation, those based on Employee's employment with the
Company, or the termination of that employment. This
includes, for example, but is not limited to a release of any
rights or claims Employee may have under the Age
Discrimination in Employment Act, which prohibits age
discrimination in employment; Title VII of the Civil Rights
Act of 1964, which prohibits discrimination in employment
based on race, color, national origin, religion or sex, the
Equal Pay Act, which prohibits paying men and women unequal
pay for equal work, or any other federal, state or local laws
or regulations prohibiting employment discrimination. This
also includes, but is not limited to, a release by Employee of
any tort or contract claims, and any claims for wrongful
discharge. The foregoing release ("Release") covers both
claims that Employee knows about and those he may not know
about.
This Release does not include, however, a release of
Employee's right, if any, to benefits under the Company's
pension and profit sharing plans, whether qualified or non-
qualified for federal income tax purposes, a release of any
claim made by Employee under any welfare benefit plan prior to
the signing of this Agreement, or a release of any rights or
claims that Employee may have under the Age Discrimination in
Employment Act which arise after the date the Employee signs
this Release. Furthermore, this Release does not include a
release of any rights of Employee or Employee's heirs,
executors, or assigns relating to enforcement of obligations
of the Company: (i) under this Agreement; or (ii) pertaining
to indemnification of Employee as an officer, director, or
employee of the Company.
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Employee further promises never to file or join in a
lawsuit or other proceeding asserting any claims that are
released hereby. Nothing in this Agreement shall be inferred
to be an admission of any fault by the Company.
E. Employee understands that Employee has been given a
period of 21 days to review and consider this Agreement before
signing it. Employee further understands that Employee may
use as much of this 21 day period as Employee wishes prior to
signing. EMPLOYEE IS STRONGLY ENCOURAGED TO CONSULT WITH AN
ATTORNEY BEFORE SIGNING THIS AGREEMENT. EMPLOYEE REPRESENTS
THAT HE HAS DONE SO AND ACKNOWLEDGES THAT HE HAS BEEN
REPRESENTED BY COUNSEL IN THE PREPARATION OF THIS AGREEMENT.
F. Employee may revoke this Agreement within seven (7)
days of signing it by hand delivering a written notice of
revocation to the Secretary of the Company. If Employee
revokes this Agreement, it will not become effective, the
letter of resignation will be considered rescinded, and
Employee will not receive the benefits specified in this
Agreement.
5. All of the Company's obligations hereunder beyond those
otherwise required by law are specifically subject to Employee
fulfilling completely each of the promises and requirements set
forth in this Agreement. Employee's failure to comply with
each promise and requirement herein shall be cause for the
immediate termination of any remaining payments or benefits
accorded Employee by the terms of this Agreement. In addition,
the Company expressly reserves the right to exercise any other
legal remedies to which it may be entitled.
6. The Employee shall not be required to mitigate damages
or the amount of any payment provided for under this Agreement
by seeking other employment or otherwise, nor shall the amount
of any payment provided for under this Agreement be reduced by
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any compensation earned by the Employee as the result of
employment by another employer after the Termination, or
otherwise.
7. This Agreement is governed by, and is to be construed
and enforced in accordance with, the laws of the State of
Connecticut. If under such law any portion of this Agreement
is at any time deemed to be in conflict with any applicable
statute, rule, regulation or ordinance, such portion shall be
deemed to be modified or altered to conform thereto or, if
that is not possible, to be omitted from this Agreement; and
the invalidity of any such portion shall not affect the force,
effect and validity of the remaining portion hereof. However,
in connection with the enforceability of the Release, should
the Employee attempt to challenge the enforceability of the
Release, the Employee shall initially tender to the payor, by
certified checks delivered to the Company, all cash amounts
received pursuant to this Agreement, plus interest, and invite
the Company to cancel this Agreement. In the event the
Company accepts this offer, this Agreement shall be canceled.
In the event the Company does not accept this offer, the
Company shall so notify the Employee and the amount tendered
by the Employee shall be placed in an interest-bearing account
pending a determination of the enforceability of the Release.
If the Release is determined to be enforceable, the amount in
the account shall be repaid to the Employee, minus the
attorneys fees and court costs incurred by the Company in
responding to the challenge, which the Company shall retain.
If the Release is determined not to be enforceable, the amount
in the account shall be retained by the Company or its
designee.
8. All notices under this Agreement shall be in writing
and shall be deemed effective when delivered in person (in the
Company's case, to its Secretary) or seventy-two (72) hours
after deposit thereof in the U.S. mails, postage prepaid, for
delivery as registered or certified mail -- addressed, in the
case of the Employee, to him at the last address recorded in
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Employee's personnel file, and in the case of the Company, to
its corporate headquarters, attention of the Secretary, or to
such other address as Employee or the Company may designate in
writing at any time or from time to time to the other party.
In lieu of personal notice or notice by deposit in the U.S.
mail, a party may give notice by telegram, confirmed facsimile
or telex.
9. The Company will require any successor or assign
(whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form
and substance satisfactory to the Employee, expressly,
absolutely and unconditionally to assume and agree to perform
this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such
succession or assignment had taken place. Any failure of the
Company to obtain such agreement prior to the effectiveness of
any such succession or assignment shall be a material breach
of this Agreement and shall entitle the Employee to the
immediate receipt of all amounts not yet paid pursuant to
Section 2.B(i) and the net present value of the fully vested
Deferred Compensation Contract in lieu of the benefit
specified in Section 2.D. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and
any successor or assign to its business and/or assets as
aforesaid which executes and delivers the agreement provided
for in this Section 9 or which otherwise becomes bound by all
the terms and provisions of this Agreement by operation of
law.
10. This Agreement shall be binding on and inure to the
benefit of and be enforceable by the Employee's personal and
legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the Employee
should die while any amounts are still payable to him under
Section 2.B(i) and 2.G, all such amounts, unless otherwise
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provided herein, shall be paid in accordance with the terms of
this Agreement to the Employee's devisee, legatee, or other
designee or, if there be no such designee, to the Employee's
estate.
11. This Agreement may be amended only by a subsequent
written agreement of Employee and the Company.
12. To the extent Employee has been successful on the
merits in seeking to obtain or enforce any right or benefit
provided by the Agreement following Termination, the Company
shall reimburse Employee for all actual and reasonable legal
fees and related expenses incurred by Employee in connection
therewith. Additionally, in the event of a "Change in
Control" as such term is defined within Employee's former
Employment Agreement dated November 21, 1991, the Company
and/or its successor or assignee shall thereafter reimburse
Employee for all actual and reasonable legal fees and related
expenses incurred by Employee in seeking to obtain or enforce
any right or benefit provided by the Agreement following
Termination unless Employee's action has been determined by
arbitration, as hereinafter provided, to have been frivolous.
Any dispute or controversy arising out of or related
to this Agreement shall be settled exclusively by binding
arbitration as provided in the Arbitration Agreement attached
as Exhibit D.
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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the year and day first above written.
THE PERKIN-ELMER CORPORATION
By: /s/ Richard H. Ayers
Richard H. Ayers
ATTEST:
By: /s/ W. B. Sawch
ACCEPTED AND AGREED:
/s/ Riccardo Pigliucci
Riccardo Pigliucci
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