Deferred Compensation Agreement - Perkin-Elmer Corp. and Gaynor N. Kelley
CONTRACT
AGREEMENT entered into as of the 29th day of July, 1974
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
GAYNOR N. KELLEY of New Canaan, Connecticut (hereinafter
referred to as "Kelley" or the "Employee").
WHEREAS, Kelley has rendered the Company valuable
services 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 him
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 Kelley still be in the employ of the
Company at age 65, his normal retirement age, the Company
(beginning on a date to be determined by the Company but
within 6 months from such date) will pay him annually for a
continuous period of 10 years an amount equal to $8,000.00.
Payment of this amount shall be made in quarterly
installments on the first days of the fiscal quarters of the
Company
Should the Employee be in the employ of the Company at
age 65 and thereafter die but 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
the beneficiary.
(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 annually for a continuous period of
10 years $8,000.00. Payment of this amount shall be made in
quarterly installments on the first days of the fiscal
quarters of the Company. Payments shall be made to his
beneficiary.
(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 him or his beneficiary
commencing at 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 of
employment 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 a beneficiary.
(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 his
designated 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.
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 by the Company the Employee
shall engage in a business competitive with any business
activity engaged in by the Company during his period of
employment, including without limitation, designing or
manufacturing scientific instruments, electro-optical
systems, precision optics or electronic devices similar to
or in competition with those produced by the Company or any
subsidiary or affiliate thereof; or 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 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 the above 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, 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 nor 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.
For purposes of the contract, the work "beneficiary"
shall mean the beneficiary or beneficiaries designated in
writing by the Employee. The Employee may change a
beneficiary at any time by written notice to the Company
which shall take effect only on its receipt and
acknowledgment in writing by the Company.
(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
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 hereinafter 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 designated
under Paragraph (2) above 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 this 29th day
of July 1974.
THE PERKIN-ELMER CORPORATION
By /s/ R. H. Sorensen
President
/s/ Gaynor N. Kelley
Second Amendment to Contract
AMENDED AGREEMENT entered into as of the 20th day of
January, 1983, 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 Gaynor N. Kelley, of 1801 Ponus Ridge Road,
New Canaan, Ct. 06840 (hereinafter referred to as
"Employee").
WHEREAS, the Company and Employee have entered into an
Agreement, dated as of July 29, 1974 (hereinafter called the
"Original Agreement"), providing among other things for the
payment of certain compensation to Employee upon his
retirement from the Company;
NOW, THEREFORE, it is hereby mutually agreed as
follows:
(1) The Original Agreement, as heretofore amended,
shall be further amended to add the following paragraph
after the second paragraph of Paragraph (1) of the Original
Agreement:
"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 designated by the Employee
in his written notice of election (and, if such
Beneficiary shall die during the remainder of such
period, then to the estate of such Beneficiary), or if
the Employee shall survive such Beneficiary, to the
estate of the Employee; or
"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 designated by
the Employee in his written notice of election; or
"Option 3. Reduced annual payments payable during
his life, with the provision that after his death
annual payments equal to 50% of his reduced annual
payments shall continue during the life of, and shall
be paid to, the Beneficiary designated by the Employee
in his written notice of election; or
"Option 4. Reduced annual payments payable to
Employee during his life."
(2) All of the other terms and conditions of the
Original Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have set their
hands and affixed the seal of the Company as of the date
first appearing on this Amendment.
ATTEST: THE PERKIN-ELMER CORPORATION
/s/ C. Wendell Bergere, Jr. By /s/ R. H. Sorensen
Assistant Secretary Robert H. Sorensen
Chairman of the Board
ACCEPTED AND AGREED:
/s/ Gaynor N. Kelley
Third Amendment to Contract
AMENDED AGREEMENT entered into as of the 18th day of
August, 1983, 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 Gaynor N. Kelley, of 1801 Ponus Ridge Road,
New Canaan, Connecticut, 06840 (hereinafter referred to as
"Employee").
WHEREAS, the Company and Employee have entered into an
Agreement, dated as of July 29, 1974 (hereinafter called the
"Original Agreement"), providing among other things for the
payment of certain compensation to Employee upon his
retirement from the Company;
NOW, THEREFORE, it is hereby mutually agreed as
follows:
(1) The Original Agreement, as heretofore amended,
shall be further amended to add the following paragraph at
the end of Paragraph (5) of the Original Agreement:
"Notwithstanding any other provision of this
Agreement, in the event of an involuntary termination
of the Employee's employment at any time following a
Change in Control (as hereafter defined), payments will
be made in the same amount and in the manner provided
in Paragraph (1), to commence within 3 months of the
date of such termination. For purposes hereof, (a) the
term 'Control' shall have the same meaning as is
ascribed thereto in Rule 12b-2(f) of the Rules and
Regulations promulgated by the Securities and Exchange
Commission pursuant to the Securities Exchange Act of
1934, and (b) an event or events constituting a Change
in Control of the Company shall be deemed to have
occurred on such date as the Company shall file, or
shall have become obligated to file, whichever is
earlier, a Current Report on Form 8-K describing any
such Change in Control of the Company pursuant to Item
1 thereof or indicating that any such Change in Control
either is imminent or may have occurred."
(2) All of the other terms and conditions of the
Original Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have set their
hands and affixed the seal of the Company as of the date
first appearing on this Amendment.
ATTEST: THE PERKIN-ELMER CORPORATION
/s/ C. Wendell Bergere, Jr. By /s/ R. H. Sorensen
Assistant Secretary Robert H. Sorensen
Chairman of the Board
ACCEPTED AND AGREED:
/s/ Gaynor N. Kelley
Gaynor N. Kelley
AMENDMENT
TO
DEFERRED COMPENSATION CONTRACT
Amended Agreement entered into as of the 21st day of
May, 1987, 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 Gaynor N. Kelley of 1801 Ponus Ridge Road,
New Canaan, Connecticut 06840 (hereinafter referred to as
the "Employee").
WHEREAS, pursuant to an Agreement entered into as of
July 29, 1974 between the Company and the Employee
(hereinafter referred to as the "Agreement), the Company
agreed to make certain payments to the Employee (or his
beneficiary) in the event of the Employee's retirement or
death;
NOW, THEREFORE, it is hereby mutually agreed that
Paragraph (5) of the Agreement is amended, effective as of
the date hereof, by amending the second paragraph thereof in
its entirety to read as follows:
Notwithstanding any other provision of this
Agreement, if within three years of a Change in Control
the employment of Employee is terminated by the Employee
for Good 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 questions, (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 approval by the Company's
stockholders of 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 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
the 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 above in (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 primarily
attributable to the fact that the Company may no longer
be publicly owned) or 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);
(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
based 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 of Control.
All other provisions of the Agreement not amended
herein shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed
this instrument as of the year and day first above written.
THE PERKIN-ELMER CORPORATION
By /s/ Horace G. McDonell
Horace G. McDonell
Chairman and
Chief Executive Officer
ATTEST:
By /s/ C. Wendell Bergere, Jr.
C. Wendell Bergere, Jr.
Vice President, General Counsel
and Secretary
ACCEPTED AND AGREED:
/s/ Gaynor N. Kelley
Gaynor N. Kelley
AMENDMENT TO CONTRACT
AMENDMENT entered into as of the 20th day of January,
1994, 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 GAYNOR N. KELLEY, of 1801 Ponus Ridge Road,
New Canaan, Connecticut 06840 (hereinafter referred to as
the "Employee").
WHEREAS, the Company and the Employee have entered into
an Agreement, dated as of July 29, 1974 (hereinafter
referred to as the "Original Agreement"), as amended,
providing, among other things, for the payment of certain
compensation to the Employee upon his retirement from the
Company.
NOW, THEREFORE, it is hereby mutually agreed as
follows:
(1) The Original Agreement, as heretofore amended,
shall be further amended to change the amount of "$75,000"
set forth in Paragraphs (1) and (2) of the Original
Agreement, as so amended, to read "$190,000."
(2) All of the other terms and conditions of the
Original Agreement, as heretofore amended, shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have set their
hands and affixed the
seal of the Company as of the 20th day of January, 1994.
ATTEST THE PERKIN-ELMER CORPORATION
/s/ William B. Sawch /s/ Riccardo Pigliucci
William B. Sawch Riccardo Pigliucci
Secretary President
ACCEPTED AND AGREED:
/s/ Gaynor N. Kelley
Gaynor N. Kelley