Employment Agreement - Perkin-Elmer Corp. and Michael J. McPartland
EMPLOYMENT AGREEMENT
AGREEMENT entered into as of the 18th day of February,
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 and/or will render
valuable services to the Company and it is regarded
essential by the Company that it have the benefit of his
services in future years; and
WHEREAS, the Board of Directors of the Company believes
that it is essential that, in the event of the possibility
of a change in control of the Company, the Employee be able
to continue his attention and dedication to his assigned
duties and to assess and advise the Board of Directors
whether such proposal would be in the best interests of the
Company and its shareholders without distraction regarding
an uncertainty concerning his future with the Company; and
WHEREAS, the Employee is willing to agree to continue
to serve the Company in the future;
NOW, THEREFORE, it is mutually agreed as follows:
1. Employment. The Company agrees to employ the
Employee, and the Employee agrees to serve as an employee of
the Company or one or more of its subsidiaries during the
Period of Employment (as defined in Section 2 hereof) in
such executive capacity as Employee served immediately prior
to the commencement of the Period of Employment. The
Employee also agrees to serve during the Period of
-1-
<PAGE>
Employment, if elected or appointed thereto, as a Director
of the Board of Directors of the Company and as a member of
any committee of the Board of Directors.
2. Period of Employment.
(a) The "Period of Employment" shall be the
period of thirty-six (36) months commencing on the date of a
Change in Control (as defined in Section 3 hereof) and the
period of any extension or extensions thereof in accordance
with the provisions of this Section. The Period of
Employment shall be extended automatically by one week for
each week in which the Employee's employment continues after
the date of a Change in Control, subject to the provisions
of paragraph (b) hereof.
(b) Notwithstanding the provisions of paragraph
(a) hereof, the Period of Employment shall terminate upon
the occurrence of (i) the Employee's attainment of age 65,
or the election by the Employee to retire early from the
Company under any of its retirement plans, (ii) the death of
the Employee, (iii) the Disability of the Employee (as
defined in Section 4 hereof), (iv) any other termination of
Employee's employment with the Company, regardless of
whether for Cause (as defined in Section 5 hereof), or for
Good Reason (as defined in Section 9(c) hereof) or not for
Good Reason, or (v) the sixth anniversary of the
commencement of the Period of Employment.
(c) In the case of termination of the Period of
Employment pursuant to Section 2(b)(iv), "Termination Date"
means the date of receipt by the Employee or the Company of
notice of termination given by the other party, or such
later date (but not more than 30 days thereafter) as may be
specified in such notice.
3. Change in Control. For purposes of this
Agreement, a "Change in Control" shall have occurred if an
event occurs that would be required to be reported (assuming
such event has not been "previously reported") in response
to Item 1 (a) of the Current Report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15 (d)
of the Securities Exchange Act of 1934; provided that,
without limitation, such a Change in Control shall be deemed
to have occurred at such time as (i) any "person" within the
-2-
<PAGE>
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) 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 (ii), considered as
though such person were a member of the Incumbent Board, or
(iii) the approval by the Company's stockholders of the sale
of all or substantially all of the assets of the Company.
4. Disability. For purposes of this Agreement,
"Disability" means the absence of the Employee from his
duties with the Company on a full-time basis for one hundred
eighty (180) consecutive days as a result of incapacity due
to physical or mental illness.
5. Cause. For purposes of this Agreement,
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 a 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 Section 5, 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
-3-
<PAGE>
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 be 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 Section 5 and specifying the particulars
thereof in detail.
6. Duties During the Period of Employment. The
Employee shall devote his full business time, attention and
best efforts to the affairs of the Company and its
subsidiaries during the Period of Employment; provided,
however, that the Employee may engage in other activities,
such as activities involving charitable, educational,
religious and similar types of organizations, speaking
engagements, membership on the board of directors of other
organizations, and similar type activities to the extent
that such other activities do not prohibit the performance
of his duties under this Agreement, or inhibit or conflict
in any material way with the business of the Company and its
subsidiaries.
7. Current Cash Compensation.
(a) Base Annual Salary. The Company will pay to the
Employee during the Period of Employment a base annual
salary in an amount determined by the Board of Directors or
its Compensation Committee which shall in no event be less
than the higher of (i) his base annual salary prior to the
commencement of the Period of Employment or (ii) his base
annual salary during the preceding year of the Period of
Employment; provided, however, it is agreed between the
parties that the Company shall review annually, and in light
-4-
<PAGE>
of such review may, in the discretion of the Board of
Directors or its Compensation Committee, increase such Base
Annual Salary taking into account the Employee's
responsibilities, inflation in the cost of living, increases
in compensation of other executives of the Company and its
subsidiaries, increase in salaries of executives of other
corporations, performance by the Employee, and other
pertinent factors. The Base Annual Salary shall be paid in
substantially equal biweekly installments during the Period
of Employment.
(b) Incentive Compensation. During the Period of
Employment the Employee shall continue to participate in
such of the Company's incentive compensation programs for
executives that he participated in prior to the commencement
of the Period of Employment. Any amount awarded to the
Employee under such programs shall be paid to Employee in
accordance with the terms thereof.
8. Employee Benefits.
(a) Vacation and Sick Leave. The Employee shall be
entitled to a paid annual vacation of not less than four (4)
weeks during each calendar year in the Period of Employment
and to reasonable sick leave.
(b) Regular Reimbursed Business Expenses. The Company
shall reimburse the Employee for all expenses and
disbursements reasonably incurred by the Employee in the
performance of his duties during the Period of Employment.
(c) Employee Benefit Plans or Arrangements. In
addition to the cash compensation provided for in Section 7
hereof and the benefits provided in this Section, the
Employee, during the Period of Employment, subject to
meeting eligibility provisions and to the provisions of this
Agreement, shall be entitled to participate in all employee
benefit plans or arrangements of the Company as presently in
effect or as they may be modified or added to by the Company
from time to time, which provide benefits to officers or
employees of the Company. For purposes of this Agreement,
such benefit plans or arrangements, herein "Benefit Plans",
shall mean any compensation plan such as an incentive,
-5-
<PAGE>
deferred, stock option or restricted stock plan or any
employee benefit plan such as a thrift, pension, profit
sharing, medical, dental, disability, salary continuation,
accident, life insurance plan or a relocation plan or policy
or any other plan, program or policy of the Company intended
to benefit employees.
9. Termination of Employment.
(a) Termination by the Company for Cause or
Termination by the Employee Other Than for Good Reason. If
the Company terminates the employment of the Employee for
Cause (as defined in Section 5 hereof), or if the Employee
terminates his employment other than for Good Reason (as
defined in paragraph (c) of this Section) the Company will
pay the Employee (i) his Base Annual Salary, as provided in
paragraph (a) of Section 7 hereof, through the end of the
month in which the Termination Date occurs, (ii) any
Incentive Compensation payable to him pursuant to paragraph
(b) of Section 7 hereof, including a pro rata share for any
partial year, (iii) any accrued vacation pay, and (iv) any
benefits payable to him pursuant to the Company's employee
benefit plans and arrangements as provided in paragraph (c)
of Section 8 hereof through the end of the month in which
the Termination Date occurs.
(b) Termination by the Company Without Cause or
by the Employee for Good Reason. If the Company terminates
the Employee's employment with the Company without Cause, or
if the Employee terminates his employment with the Company
for Good Reason, the Company will pay or provide to the
Employee the following:
(i) The Company will pay to the Employee
within thirty (30) days after the
Termination Date a lump sum equal to (x)
times (y), where
(x) equals the Employee's Base Annual
Salary; and
(y) equals the greater of either (A)
one year, or (B) the number of years,
including partial years, remaining in
-6-
<PAGE>
the Period of Employment as of the
Employee's Termination Date.
(ii) The Company will pay to the
Employee within thirty (30) days after the
Termination Date a lump sum equal to (x)
times (y), where
(x) equals the Employee's average
annual Incentive Compensation paid for
the two calendar years immediately
preceding the calendar year in which
occurs (A) the Termination Date, or (B)
the first day of the Period of
Employment, whichever is higher; and
(y) equals the greater of either
(A) one year, or (B) the number of
years, including partial years,
remaining in the Period of Employment
as of the Employee's Termination Date.
(iii) For a period of three years immediately
following his Termination Date, the Employee and
his family shall continue to participate in all
employee Benefit Plans of the Company (as
defined in Section 8(c) hereof) in which he or
his family participated at any time during the
one-year period ending on the date immediately
preceding his Termination Date, provided that
(a) such continued participation is possible
under the terms of such Benefit Plans, and (b)
the Employee continues to pay contributions for
such participation at the rates paid for similar
participation by active Company employees in
similar positions to that held by the Employee
immediately prior to the Termination Date. If
such continued participation is not possible,
the Company shall provide, at its sole cost and
expense, identical benefits to the Employee plus
-7-
<PAGE>
pay an additional amount to the Employee equal
to the Employee's liability for federal, state
and local income taxes on such amounts.
The amounts payable to the Employee under this paragraph (b)
shall be absolutely owing and shall not be subject to
reduction or mitigation as a result of employment of the
Employee elsewhere after the Termination Date.
(c) Good Reason. 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
commencement of the Period of Employment 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, Disability
or upon attaining age 65 or upon taking
early retirement under any of the Company's
retirement plans, 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 Annual Salary;
(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
all other executives participating in
incentive compensation plans shall be
considered "material", provided, however,
-8-
<PAGE>
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 failure by the Company to continue
in effect any Benefit Plan (as defined in
Section 8(c) hereof) in which Employee was
participating at the time of the Change in
Control (or Benefit Plans providing Employee
with at least substantially similar
benefits) other than as a result of the
normal expiration of any such Benefit Plan
in accordance with its terms as in
effect at the time of the Change in Control,
or the taking of any action, or the failure
to act, by the Company which would adversely
affect Employee's continued participation in
any such Benefit Plans on at least as
favorable a basis to Employee as is the case
on the date of the Change in Control or
which would materially reduce Employee's
benefits in the future under any of such
Benefit Plans or deprive Employee of any
material benefit enjoyed by Employee
(v) the failure by the Company to provide and
credit Employee at the time of the Change in
Control; with the number of paid vacation
days to which Employee was then entitled in
accordance with the Company's normal
vacation policy as in effect immediately
prior to the Change in Control; and
(vi) 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
commencement of the Period of Employment.
-9-
<PAGE>
10. Governing Law. 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.
11. Notices. 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 this residential address, and in the case of the
Company, to its corporate headquarters, attention of the
Secretary, or to such other address as the 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, fax or telex.
12. Miscellaneous. This Agreement constitutes the
entire understanding between the Company and the Employee
relating to the employment of the Employee by the Company
and cancels all prior written and oral agreements and
understandings with respect to the subject matter of this
Agreement. This Agreement may be amended only by a
subsequent written agreement of the Employee and the
Company. This Agreement shall be binding upon and shall
inure to the benefit of the Employee, his heirs, executors,
administrators, beneficiaries and assigns and to the benefit
of the Company and its successors. Notwithstanding anything
in this Agreement to the contrary, this Agreement shall
terminate if Employee or the Company terminate Employee's
employment prior to a Change in Control of the Company.
-10-
<PAGE>
13. Fees and Expenses/Arbitration.
(a) The Company shall pay all reasonable legal
fees and related expenses incurred by the Employee in
connection with the Agreement following a Change in Control
of the Company, including, without limitation, all such fees
and expenses, if any, incurred in connection with: (i)
contesting or disputing any termination of the Employee's
employment hereunder; or (ii) the Employee seeking to obtain
or enforce any right or benefit provided by the Agreement.
(b) Any dispute or controversy arising under or
in connection with this Agreement shall be settled
exclusively by arbitration in Connecticut by three
arbitrators in accordance with the rules of the American
Arbitration Association then in effect. Judgement may be
entered on the arbitrator's award in any court having
jurisdiction; provided, however, that Employee shall be
entitled to seek specific performance of Employee's right to
be paid until the Termination Date during the pendency of
any dispute or controversy arising under or in connection
with this Agreement. The Company shall bear all costs and
expenses arising in connection with any arbitration
proceeding pursuant to this Section 13(b).
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/ G. N. Kelley
Gaynor N. Kelley
Chairman and
Chief Executive Officer
-11-
<PAGE>
ATTEST:
By: /s/ C. W. Bergere, Jr.
C. Wendell Bergere, Jr.
Vice President
General Counsel & Secretary
ACCEPTED AND AGREED:
/s/ Michael J. McPartland
-12-