Change In Control Agreement - Perkin-Elmer Corp. and Tony L. White
CHANGE IN CONTROL AGREEMENT
AGREEMENT entered into as of September 12, 1995,
between THE PERKIN-ELMER CORPORATION, a New York corporation
having its principal place of business at Norwalk, Connecticut
(the "Company") and TONY L. WHITE (the "Employee") presently
residing at 575 Stable Lane, Lake Forest, Illinois 60045.
WHEREAS, the Employee has rendered and/or will render
valuable services to the Company and it is regarded as essential
by the Company that it have the benefit of his services in future
years; and
WHEREAS, the Board of Directors of the Company (the
"Board") believes that it is essential that, in the event of the
possibility of a Change in Control of the Company (as defined
herein), the Employee be able to continue his attention and
dedication to his duties and to assess and advise the whether
such proposals would be in the best interest of the Company and
its shareholders without distraction regarding any 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 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
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Employee served immediately prior to the commencement of the
Period of Employment. The Employee also agrees to serve during
the Period of Employment as Chairman of the Board of the Company
and as a member of any committee of the Board.
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 and the period of any extension or extensions thereof in
accordance with the terms of this Section 2. 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
the earlier 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 3
hereof), (iv) any termination of Employee's employment with the
Company for Cause or without 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
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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. Definitions. For purposes of this Agreement, the
following terms shall have the meanings set forth in this
Section 3.
(a) Cause. "Cause" means 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 Board which specifically identifies the manner in
which the Board 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 3(a), 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
be conclusively presumed to be done, or omitted to be done, by
the Employee in good faith and in the best interests of the
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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 3(a) and
specifying the particulars thereof in detail.
(b) Cash Compensation. "Cash Compensation" shall mean the sum
of (i) Employee's Base Salary (determined in accordance with the
provisions of Section 5(a) hereof) and (ii) the average Incentive
Compensation (provided for under Section 5(b) hereof) which shall
be an amount equal to the greater of (x) the average of the
amount of Employee's Incentive Compensation for the last three
completed fiscal years immediately prior to the Employee's
termination of employment or (y) the target amount of such
Employee's Incentive Compensation for the fiscal year in which
his termination of employment occurs; provided, however, that if
the Employee was not employed by the Company for the entirety of
the three completed fiscal years immediately prior to the
Employee's termination of employment, the Employee's average
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Incentive Compensation shall be deemed to be the target amount of
such Employee's Incentive Compensation for the fiscal year in
which his termination of employment occurs.
(c) Change in Control. "Change in Control" means the
occurrence of any of the following: an event 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 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
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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 stock or assets of the Company.
(d) Disability. "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.
(e) Good Reason. "Good Reason" means:
(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 judgment, 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 Salary;
(iii) a material reduction in the Employee's total annual
compensation, a reduction for any year of over 10% of total
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compensation measured by the preceding year without a
substantially similar reduction to all other executives
participating in incentive compensation plans shall be considered
"material." The failure of the Company to adopt or renew a stock
option plan or to grant amounts of restricted stock or stock
options, which are consistent with the Company's prior practices,
to the Employee shall be considered a reduction, unless the
Employee participates in substitute programs that provide
substantially equivalent economic value to the Employee;
(iv) the failure by the Company to continue in effect any
Benefit Plan 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 immediately prior to 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 immediately
prior to the Change in Control;
(v) the failure by the Company to provide and credit Employee
with the number of paid vacation days to which Employee was then
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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.
4. 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 boards 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.
5. Current Cash Compensation.
(a) Base Salary. The Company will pay to the Employee while
employed by the Company an annual base salary ("Base Salary") in
an amount determined by the Board or its Compensation Committee
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which shall in no event be less than the higher of (i) his Base
Salary immediately prior to the commencement of the Period of
Employment or (ii) his Base Salary during the last completed
fiscal year of the Company ("Fiscal Year") preceding the Period
of Employment; provided, however, that for purposes of this
Section 5(a), the Employee's Base Salary under clauses (i) and
(ii) of this Section 5(a) shall be deemed to include an amount
which is equal to the greater of (x) the fair market value of
12,000 shares of Company common stock immediately prior to a
Change in Control or (y) $400,000; provided, further, that it is
agreed between the parties that the Company shall review
annually, and in light of such review may, in the discretion of
the Board or its Compensation Committee, increase such Base
Salary taking into account the Employee's responsibilities,
inflation in the cost of living, 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 Salary shall be paid in
substantially equal biweekly installments while employed
hereunder.
(b) Incentive Compensation. While employed hereunder, the
Employee shall continue to participate in such of the Company's
incentive compensation programs for executives as he participated
in prior to the commencement of the Period of Employment. Any
amount awarded to the Employee under such programs shall be paid
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to Employee in accordance with the terms thereof.
6. Employee Benefits.
(a) Vacation and Sick Leave. The Employee shall be entitled
to a paid annual vacation of not less than twenty (20) business
days during each calendar year while employed hereunder 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 while employed hereunder.
(c) Employee Benefit Plans, Programs or Arrangements. While
employed hereunder, Employee shall be entitled to participate in
all employee benefit plans, programs or arrangements ("Benefit
Plans") of the Company, in accordance with the terms thereof, as
presently in effect or as they may be modified by the Company
from time to time, which the Company makes available to senior
executives of the Company. For purposes of this Agreement,
Benefit Plans shall include, without limitation, any compensation
plan such as an incentive, 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.
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(d) Auto Allowance and Other Perquisites. While employed
hereunder, Employee shall receive an automobile allowance of
$20,000 per year, and the Company shall also reimburse Employee
for the reasonable costs of financial planning and tax
preparation in accordance with Company policy as in effect from
time to time. In addition, Employee shall be entitled, while
employed hereunder, to any other perquisites and fringe benefits
not specifically mentioned herein that are made available to
senior executives of the Company, subject to the terms of this
Agreement and commensurate with his position with the Company.
(e) Supplemental Pension Benefit. It is understood that
Employee has been employed by his prior employer for a period of
twenty-five years ("Prior Service Period"). In addition to
receiving credit under the Company's qualified defined benefit
plan ("Pension Plan") and the Company's non-qualified
Supplemental Retirement Plan and Contingent Compensation Plan for
Key Executives (collectively, "Non-Qualified Plans") for
Employee's service with the Company under the terms of this
Agreement, the Company shall pay Employee a special supplemental
pension benefit equal to the amount which he would receive under
the Pension Plan and the Non-Qualified Plans if Employee were
credited with his Prior Service Period under the Pension Plan and
the Non-Qualified Plans; provided, however, that Employee shall
vest in 50 percent of his benefits hereunder at the commencement
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of the Employee's employment and in the remaining benefits
hereunder at the rate of 10 percent per year commencing on the
first anniversary of the date the Employee's employment
commenced. Employee's benefit hereunder shall be calculated in
the manner set forth in Exhibit A hereto. Any benefits payable
to Employee hereunder shall be reduced by $111,528 per year, and
shall also be reduced by any amounts paid to Employee under the
Pension Plan or the Non-Qualified Plans.
7. 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 or if the Employee
terminates his employment other than for Good Reason the Company
shall pay the Employee (i) his Base Annual Salary, as provided in
paragraph (a) of Section 5 hereof, through the end of the month
in which the date of termination occurs, (ii) any Incentive
Compensation payable to him pursuant to paragraph (b) of Section
5 hereof, including a pro rata share for any partial year, (iii)
any accrued vacation pay, and (iv) benefits payable to him
pursuant to the Company's Benefit Plans through the end of the
month in which the termination of employment occurs. The amounts
and benefits set forth in clauses (i), (ii), (iii), and (iv) of
the preceding sentence shall hereinafter be referred to as
"Accrued Benefits."
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(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 to Employee all Accrued Benefits
and, in addition, pay or provide to the Employee the following:
(i) within thirty (30) days after the Termination
Date a lump sum equal to 300 percent of Employee's Cash
Compensation; and
(ii) for a period of three years immediately following his
Termination Date, the Employee and his family shall continue to
participate in any Benefit Plans of the Company (as defined in
Section 6(c) hereof) in which he or his family participated at
any time during the one-year period ending on the day
immediately preceding his termination of employment, 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
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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 pay an
additional amount to the Employee equal to the Employee's
liability for federal, state and local income taxes on such
amounts;
(iii) three years of additional vesting credit for
purposes of Section 6(e) hereof and three additional years of
service credit under the Company's Non-Qualified Plans and, for
purposes of such plans, Employee's final average pay shall be
deemed to be the sum of his then current Base Salary and his
Target Bonus for the year in which the Termination Date occurs;
(iv) the Company shall take all reasonable actions to cause
any Restricted Stock granted to Employee to become fully vested
and any Options granted to Employee to become fully exercisable
and in the event the Company cannot effect such vesting or
acceleration, the Company shall pay to Employee (i) with respect
to each Option, an amount equal to the product of (x) the number
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of unvested shares subject to such Option, multiplied by (y) the
excess of the fair market value of a share of Company common
stock on the date of Employee's termination of employment, over
the per share exercise price of such Option and (ii) with
respect to each unvested share of Restricted Stock an amount
equal to the fair market value of a share of Company common
stock on the date of Employee's termination of employment.
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.
8. Gross-Up. In the event any amounts due to the Employee
under this Agreement, under the terms of any Benefit Plan or
otherwise payable by the Company or an affiliate of the Company
are subject to excise taxes under Section 4999 of the Internal
Revenue Code of 1986, as amended ("Excise Taxes"), the Company
shall pay to the Employee, in addition to any other payments due
under other provisions of this Agreement, an amount equal to the
amount of such Excise Taxes plus the amount of any federal, state
and local income or other taxes and Excise Taxes attributable to
all amounts, including income taxes, payable under this Section
8.
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9. 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.
10. 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. mail, postage prepaid,
for delivery as registered or certified mail --addressed, in the
case of the Employee, to him at his 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.
11. Miscellaneous. Upon a Change in Control, this Agreement
shall constitute the entire understanding between the Company and
the Employee relating to the employment of the Employee by the
Company and shall supersede all prior written and oral agreements
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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.
12. Fees and Expenses. 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.
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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/ Gaynor N. Kelley
Gaynor N. Kelley
Chairman, President and
Chief Executive Officer
ACCEPTED AND AGREED:
/s/ Tony L. White
TONY L. WHITE