Deferred Compensation Contract - Perkin-Elmer Corp. and Andre F. Marion
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 Andre F. Marion, of 556
Kingsley Avenue, Palo Alto, CA 94301 (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
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.
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 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 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);
(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.
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 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 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. 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.
(15) 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 / Gaynor N. Kelley
Gaynor N. Kelley
Chairman and President
Chief Executive Officer
ATTEST:
By: / s / C.Wendell Bergere, Jr.
ACCEPTED AND AGREED:
By: / s / A. F. Marion