DEFERRED COMPENSATION CONTRACT
AGREEMENT entered into as of February 18, 1993, between
THE PERKIN-ELMER CORPORATION, a New York corporation having
its principal place of business at Norwalk, Connecticut
(hereinafter referred to as the "Company") and Michael J.
McPartland, of 540 Warner Hill Road, Southport, CT 06940
(hereinafter referred to as the "Employee").
WHEREAS, the Employee has rendered valuable service to
the Company, and it is regarded as essential by the Company
that it shall have the benefit of his services during future
years, and
WHEREAS, it is the desire of the Company to assist the
Employee in providing for the contingencies of death and old
age dependency, and
WHEREAS, it appears desirable to provide for retirement
at an age prior to the current normal retirement age of 65
years in appropriate cases so as to facilitate an orderly
succession in senior management positions of the Company.
NOW, THEREFORE, it is hereby mutually agreed as
follows:
(1) Should the Employee still be in the employ of the
Company at age 65, the Company (beginning on a date to be
determined by the Company but within 6 months from the
Employee's retirement date) will pay him $25,000 each year
for a continuous period of 10 years. Payment of this amount
shall be made in quarterly installments on the first day of
the fiscal quarters of the Company.
Should the Employee be in the employ of the Company at
age 65 and thereafter die before the entire said 10 annual
payments have been paid, the unpaid balance of the 10 annual
payments will continue to be paid by the Company to that
person designated by the Employee in a written notice of
-1-
election as the Employee's beneficiary hereunder
(hereinafter referred to as the "Beneficiary"). The
Employee may change such designation at any time by giving
the Company written notice of such intent; and such change
shall become effective only upon being received and
acknowledged by the Company.
If the Beneficiary shall die after receiving benefits
under this Agreement and further payments are payable, such
further payments shall be paid to the estate of the
Beneficiary. If the Employee shall survive the Beneficiary
without designating another Beneficiary, any payments
hereunder shall be paid to the estate of the Employee.
The Employee may elect in writing at any time prior to
his normal retirement date one of the following optional
forms of payment in lieu of the normal form of payment set
forth above, with the annual value of such optional form of
payment being actuarially reduced from such normal form of
payment; provided, however, that such optional forms of
payment are not available to an Employee in the event he
dies or terminates his employment and is covered by
Paragraphs (2), (4), (5), or (6) of this Agreement:
Option 1. Reduced annual payments payable during his life
with the provision that if he shall not survive a period of
ten years, such reduced annual payments shall continue to be
paid after the death of the Employee and during the
remainder of such ten-year period to the Beneficiary.
Option 2. Reduced annual payments payable during his life,
with the provision that after his death such reduced annual
payments shall continue during the life of, and shall be
paid to the Beneficiary (provided the Beneficiary survives
the Employee).
Option 3. Reduced annual payments payable during his life,
with the provision that after his death annual payments
equal to 50% of such reduced annual payments shall continue
during the life of, and shall be paid to, the Beneficiary
(provided the Beneficiary survives the Employee).
Option 4. Reduced annual payments payable to the Employee
during his life.
-2-
Notwithstanding any contrary provisions herein, the
Employee may not change his Beneficiary in Options 2 and 3,
above, after the Employee has begun to receive payments
hereunder.
(2) Should the Employee die before age 65 while in the
employ of the Company, the Company (beginning on a date to
be determined by the Company but within 6 months from the
date of death) will pay the Beneficiary $25,000 each year
for a continuous period of 10 years. Payment of this amount
shall be made in quarterly installments on the first day of
the fiscal quarters of the Company.
(3) If the Employee shall retire on or after age 60
and before age 65, with the written consent or at the
request of the Company, payments will be made by the Company
in the amount and in the manner provided in Paragraph (1) to
commence within 6 months of the date of retirement.
(4) Should the Employee's employment be terminated at
any time after the date hereof and prior to his attaining
age 60, with the written consent or by the act of the
Company, the Company will make payments in the manner
provided in Paragraph (1) to commence when the Employee
attains age 60 or the date of his prior death in an amount
determined by multiplying the benefit set forth in Paragraph
(1) by a fraction, the numerator of which shall be the
number of whole months or major part thereof from the date
hereof to the date of termination of employment, and the
denominator of which shall be the number of whole months or
major part thereof from the date hereof to the date he
attains age 60.
(5) Unless the Company shall consent in writing, the
Employee, if his employment be terminated other than by
death or disability or as provided in Paragraphs (3) or (4)
prior to his attaining age 65, shall forfeit all right to
benefits hereunder and the Company shall have no liability
for any payment to the Employee or the Beneficiary.
Notwithstanding any other provision of this Agreement,
if within three years of a Change in Control the employment
of the Employee is terminated by the Employee for Good
-3-
Reason or by the Company without Cause, then the Company
will pay Employee the amount referred to in Paragraph (1) of
this Agreement within 60 days of such termination of
employment. For purposes hereof:
(a) A "Change in Control" shall have occurred if (i)
any "person" within the meaning of Section 14 (d) of the
Securities Exchange Act of 1934 becomes the "beneficial
owner" as defined in Rule 13d-3 thereunder, directly or
indirectly, of more than 25% of the Company's Common Stock,
(ii) any "person" acquires by proxy or otherwise, other than
pursuant to solicitations by the Incumbent Board (as
hereinafter defined), the right to vote more than 35% of the
Company's Common Stock for the election of directors, for any
merger or consolidation of the Company or for any other
matter or question, (iii) during any two-year period,
individuals who constitute the Board of Directors of the
Company (the "Incumbent Board") as of the beginning of the
period cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director during
such period whose election or nomination for election by the
Company's stockholders was approved by a vote of at least
three-quarters of the Incumbent Board (either by a specific
vote or by approval of the proxy statement of the Company in
which such person is named as a nominee for director without
objection to such nomination) shall be, for purposes of this
clause (iii), considered as though such person were a member
of the Incumbent Board, or (iv) the Company's Stockholders
approve the sale of all or substantially all of the assets of
the Company.
(b) Termination by the Company of the employment of
the Employee for "Cause" shall mean termination upon (i) the
willful and continued failure by the Employee to perform
substantially his duties with the Company, (other than any
such failure resulting from the Employee's incapacity due to
physical or mental illness) after a demand for substantial
performance is delivered to the employee by the Chairman of
the Board or President of the Company which specifically
identifies the manner in which such executive believes that
the Employee has not substantially performed his duties, or
(ii) the willful engaging by the Employee in illegal conduct
-4-
which is materially and demonstrably injurious to the
Company. For purposes of this subparagraph (b), no act or
failure to act on the part of the Employee shall be
considered "willful" unless done, or omitted to be done, by
the Employee in bad faith and without reasonable belief that
the Employee's action or omission was in, or not opposed to,
the best interests of the Company. Any act, or failure to
act, based upon authority given pursuant to a resolution
duly adopted by the Board or based upon the advice of
counsel for the Company shall conclusively presumed to be
done, or omitted to be done, by the Employee in good faith
and in the best interests of the Company. Notwithstanding
the foregoing, the Employee shall not be deemed to have been
terminated for Cause unless and until there shall have been
delivered to the Employee a copy of a resolution, duly
adopted by the affirmative vote of not less than three-
quarters of the entire membership of the Board at a meeting
of the Board called and held for that purpose (after
reasonable notice to the employee and an opportunity for
him, together with his counsel, to be heard before the
Board), finding that in the good faith opinion of the Board
the Employee was guilty of the conduct set forth in sections
(i) or (ii) of this subparagraph (b) and specifying the
particulars thereof in detail.
(c) Termination by the employee of employment for
"Good Reason" shall mean termination based on:
(i) an adverse change in the status of the Employee
(other than any such change primary attributable to the fact
that the Company may no longer be publicly owned) or the
Employee's position(s) as an officer of the Company as in
effect immediately prior to the Change in Control, or the
assignment to the Employee of any duties or responsibilities
which, in his reasonable judgement, are inconsistent with
such status or position(s), or any removal of the Employee
from, or any failure to reappoint or reelect him to, such
position(s) (except in connection with the termination of
the Employee's employment for Cause, total disability, or
retirement on or after attaining age 65 or as a result of
death or by the Employee other than for Good Reason);
-5-
(ii) a reduction by the Company in the Employee's base
salary as in effect immediately prior to the Change in
Control;
(iii) A material reduction in the Employee's total
annual compensation; a reduction for any year of over 10% of
total compensation measured by the preceding year without a
substantially similar reduction to other executives shall be
considered "material"; provided, however, the failure of the
Company to adopt or renew a stock option plan or to grant
stock options to the Employee shall not be considered a
reduction; and
(iv) the Company's requiring the employee to be more
than fifty miles from Norwalk, Connecticut, except for
required travel on the Company's business to an extent
substantially
consistent with the business travel obligations which he
undertook on behalf of the Company prior to the Change in
Control.
(6) In the event the Employee shall become disabled so
that he is unable to perform his duties as an employee and
so that he is entitled to benefits under a long range
disability insurance program made available by the Company,
or so that he would have been eligible for such benefits had
he elected to insure himself thereunder, the Company will
make payments as provided in Paragraph (1) above to commence
at age 65.
In the event the Employee should die at any time after
becoming disabled and before attaining age 65, payments as
provided in this Paragraph (6) will be made to the
Beneficiary commencing as of the date of the Employee's
death.
(7) The Company has or may procure a policy or
policies of life insurance upon the life of the Employee to
aid it in meeting its obligations under this Agreement. It
is understood, however, that such policy or policies held by
the Company and the proceeds therefrom shall be treated as
the general assets of the Company; that they shall in no way
represent any vested, secured, or preferred interest of the
Employee or his beneficiaries under this Agreement; and that
the Company shall be under no obligation either to procure
or to continue life insurance in force upon the life of the
Employee.
-6-
The employee hereby agrees that he already has or will
submit to a physical examination and answer truthfully and
completely without mental reservation or concealment any
question or request for information by any insurance company
in connection with the issuance of any policy procured by
the Company under this Paragraph (7). In the event the
Employee fails to do so or in the event the Employee dies by
suicide, and the liability of the insurer under such policy
is restricted as a result of such failure or suicide, then
the Company shall thereby be released from all of its
obligations under Paragraph (2) above.
(8) If the Company shall procure any policy or
policies of life insurance in accordance with Paragraph (7)
above and shall have the option of including in any such
policy an accidental death or so-called "double indemnity"
provision, the Company will so advise the Employee and, if
the Employee requests and agrees to pay any additional
premium resulting therefrom, will include in the policy such
accidental death or double indemnity provisions as may be
available and will further provide or cause to be provided
that any benefit payable under or by reason of such
provisions shall be paid as a death benefit to the
beneficiary designated by the Employee hereunder; provided
that in the event the Employee shall cease to pay such
additional premium the Company may cancel any accidental
death or double indemnity provision; and further provided
that the inclusion of such a provision shall in no way
affect the Company's right to cancel or otherwise dispose of
the policy, even though such action may have the effect of
terminating such provision.
(9) If during a period of 10 years from the
termination of his employment with the Company the Employee
shall: engage in a business competitive with any business
activity engaged in by the Company at any time while he was
employed; enter into the service of any organization so
engaged in such business (or any subsidiary or affiliate of
such an organization); or personally engage in or enter the
service of any organization that is engaged in consulting
work or research or development or engineering activities
-7-
for any organization so engaged in such business (or any
subsidiary or affiliate of such an organization), then any
liability of the Company to make any further payments
hereunder shall cease. The investment of funds by the
Employee in securities of a corporation listed on a
recognized stock exchange shall not be considered to be a
breach of this Paragraph.
(10) The Company may in its sole discretion grant the
Employee a leave of absence for a period not to exceed one
year during which time the Employee will be considered to be
still in the employ of the Company for the purposes of this
Agreement.
(11) The Company in its sole discretion and without
the consent of the Employee, his estate, his beneficiaries,
or any other person claiming through or under him, may
commute any payments which are due hereunder at the rate of
4% per annum to a lump sum and pay such lump sum to the
Employee or to the beneficiary or beneficiaries entitled to
receive payment at the date of commutation, and such payment
shall be a full discharge of the Company's liabilities
hereunder. The Company may also in its sole discretion and
without the consent of any other person accelerate the
payment of any of the sums payable hereunder.
(12) The right to receive payments under this
Agreement shall not be assignable or subject to
anticipation, nor shall such right be subject to
garnishment, attachment, or any other legal process of
creditors of the Employee or of any person or persons
designated as beneficiaries hereunder except to the extent
that this provision may be contrary to law.
(13) This Agreement creates no rights in the Employee
to continue in the employ of the Company for any length of
time nor does it create any rights in the Employee or
obligations on the part of the Company other than those set
forth herein.
(14) If the Company, or any corporation surviving or
resulting from any merger or consolidation to which the
Company may be a party or to which substantially all the
assets of the Company shall be sold or otherwise
transferred, shall at any time be merged or consolidated
with or into any other corporation or corporations or shall
otherwise transfer substantially all its assets to another
-8-
corporation, the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the
corporation surviving or resulting from such merger or
consolidation or to which such assets shall be so sold or
otherwise transferred. Except as herein provided, this
Agreement shall not be assignable by the Company or by the
Employee.
This Agreement is solely between the Company and the
Employee. The Employee and his beneficiaries shall have
recourse only against the Company for enforcement, and the
Agreement shall be binding upon the beneficiaries, heirs,
executors, and administrators of the Employee and upon the
successors and assigns of the Company.
This Agreement has been made, executed, and delivered
in the State of Connecticut; and shall be governed in
accordance with the laws thereof.
IN WITNESS WHEREOF, the parties hereto have set their
hands and affixed the seal of the Corporation as of the date
first written above.
THE PERKIN-ELMER CORPORATION
By /s/ G. N. Kelley
Gaynor N. Kelley
Chairman and President
Chief Executive Officer
ATTEST:
By /s/ C. W. Bergere, Jr.
ACCEPTED AND AGREED:
/s/ Michael J. McPartland
(B)
-9-