Employment Agreement - Perkin-Elmer Corp. and Tony L. White
EMPLOYMENT AGREEMENT
AGREEMENT entered into as of September 12, 1995,
between THE PERKIN-ELMER CORPORATION (the "Company"), a New York
corporation, and TONY L. WHITE ("Executive"), presently residing
at 575 Stable Lane, Lake Forest, Illinois 60045.
WHEREAS, the Company desires to employ Executive on the
terms and conditions set forth herein; and
WHEREAS, the Executive desires to render services to
the Company on the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment. (a) The Company agrees to employ Executive,
and the Executive agrees to serve as Chairman, President and
Chief Executive Officer of the Company during the Term (as
defined in Section 2 hereof). In such capacities, Executive
shall report to the Board of Directors of the Company (the
"Board") and shall have the customary powers, responsibilities
and authority of chief executive officers of corporations of the
size, type and nature of the Company, as it exists from time to
time, as are assigned by the Board. Executive also agrees to
serve during the Term as Chairman of the Board and as a member of
any committee of the Board.
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(b) As soon as practicable after the date hereof, Executive
shall devote his full business time, attention and best efforts
to the affairs of the Company and its subsidiaries during the
Term; provided, however, that nothing in this Agreement shall
preclude Executive from engaging, so long as, in the reasonable
determination of the Board, such activities do not interfere with
his duties and responsibilities hereunder, in religious,
charitable and community affairs, from managing any passive
investment made by him in publicly traded equity securities or
other property (provided that no such investment may exceed 1% of
the equity of any entity, without the prior approval of the
Board) or from serving, subject to the prior approval of the
Board, as a member of boards of directors or as a trustee of any
other corporation, association or entity.
2. Term of Employment. Subject to the provisions of Section
1(b) hereof Executive's term of employment (the "Term") under
this Agreement shall commence (the "Commencement Date") as soon
as practicable after the date hereof, but in no event later than
September 15, 1995 and, subject to the terms hereof, shall
terminate (the "Termination Date") on the earlier of (i) the
third anniversary of the Commencement Date or (ii) termination of
Executive's employment pursuant to this Agreement; provided,
however, that the Term shall automatically renew for consecutive
one-year periods, unless either party gives at least 180 days
written notice of its intent not to renew the Agreement and any
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such extension shall constitute part of the Term. Any
termination of employment by Executive (other than for death,
Permanent Disability or Good Reason) may only be made upon 90
days prior written notice to the Company and any termination of
employment by Executive for Good Reason may only be made upon 30
days prior written notice to the Company.
3. Compensation.
(a) Base Salary. The Company will pay to the Executive a base
salary ("Base Salary") at the rate of $550,000 per annum for the
period commencing on the beginning of Executive's term of
employment hereunder and ending on the Termination Date. Base
Salary shall be payable in accordance with the ordinary payroll
practices of the Company. Any increase in Base Salary shall be
in the discretion of the Board and, as so increased, shall
constitute "Base Salary" hereunder. It is understood that the
Company shall review Executive's Base Salary annually, and in
light of such review may, in the discretion of the Board of
Directors or its Compensation Committee, increase such Base
Salary taking into account the Executive's responsibilities,
compensation of other executives of the Company and its
subsidiaries, increase in salaries of executives of other
corporations, performance by the Executive, and other pertinent
factors.
(b) Bonus Arrangements. During the Term, Executive shall be
eligible to receive an annual bonus (a "Bonus") in respect of
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each Fiscal Year of the Company ("Fiscal Year") under, and
subject to the terms of, the Company Contingent Compensation Plan
(the "Bonus Plan") to the extent not inconsistent with the terms
hereof. Executive's target bonus (the "Target Bonus") under the
Bonus Plan will be equal to 100 percent of Executive's Base
Salary and will be payable in accordance with the provisions of
the Bonus Plan; provided, however, that with respect to Fiscal
Year 1996, Executive shall receive total cash compensation of
Base Salary plus Bonus of not less than $875,000.
4. Stock Arrangements.
(a) Restricted Stock. (i) Upon Executive's commencement of
employment with the Company, Executive shall be granted 30,000
shares of restricted stock of the Company ("Restricted Stock")
pursuant to the Company 1993 Stock Incentive Plan for Key
Executives (the "Stock Plan"). Except as otherwise specifically
provided for herein, the terms of the Restricted Stock Agreement
governing the Restricted Stock granted pursuant to this Agreement
shall be no less favorable to Executive than the terms of the
form of Restricted Stock Agreement currently used by the Company.
The Restricted Stock will vest on the third anniversary of the
date of grant based on the per share price of Company common
stock on such date as follows:
Per Share Price Vested Percentage
less than $40 0%
$40 or greater 50%
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$46 or greater 75%
$52 or greater 100%
(i) In addition to the foregoing grant of Restricted Stock,
the Company, subject to the approval of the shareholders of the
Company, will endeavor to implement a Restricted Stock
performance program (the "Program") based on financial measures
of corporate success ("Performance Targets") beginning in Fiscal
Year 1997. Under the Program, the Board intends that Executive
would be granted 36,000 shares of Restricted Stock on or about
July 1, 1996 (the "Performance Stock"). Performance Stock would
vest as follows: 6,000 shares upon the attainment of 90 percent
or less of the Performance Target with respect to a Fiscal Year;
600 shares per percentage point over 90 percent of Performance
Target up to 110 percent for a possible maximum per Fiscal Year
of 18,000 shares. Upon the grant of the Performance Shares,
Executive would be entitled to receive dividends and exercise
voting rights with respect thereto, whether or not the
Performance Shares have vested. In the event of Executive's
termination of employment pursuant to Sections 7(a) or 7(b)
hereof, all unvested Performance Shares would be forfeited. The
terms of any Performance Shares would be governed by the terms of
the Program. In the event that the Program is not approved by
the shareholders of the Company, the Company shall establish a
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performance unit plan under which Executive shall be entitled to
receive, in performance units, substantially equivalent economic
value to the Performance Stock set forth in this Section
4(a)(ii), subject to the same terms and conditions that the
Performance Stock would have been subject to had the Program been
approved by shareholders.
(b) Stock Options. (i) Upon Executive's commencement of
employment with the Company, the Company shall grant Executive an
option (an "Option") to purchase at fair market value on the date
of grant 120,000 shares of common stock of the Company under the
Stock Plan. The Option shall vest with respect to 50% of the
shares subject thereto on each of the first and second
anniversaries of the date of grant and shall expire ten years
following the date of grant. Except as otherwise specifically
provided for herein, the terms of the Option shall be no less
favorable to Executive than the terms of the form of Stock Option
Agreement currently used by the Company.
(i) In addition to the foregoing Option grant, the Company,
subject to the approval of the Board, anticipates making annual
Option grants to Executive with respect to about 40,000 to 50,000
shares per year.
(c) Stock Plan Governs. Unless otherwise specified in this
Section 4, the terms of all Restricted Stock and Options granted
to Executive hereunder, including, without limitation, terms
relating to vesting and forfeiture, shall be governed by the
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Stock Plan; provided, however, that in the event of Executive's
termination under Section 7(b) hereof the Company shall take all
reasonable actions to cause the Restricted Stock granted under
the terms hereof to become fully vested and the Options granted
under the terms hereof to become fully exercisable. In the event
the Company cannot effect the vesting and acceleration
contemplated in the preceding sentence, the Company shall pay to
Executive (i) with respect to each Option, an amount equal to the
product of (x) the number 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 Executive'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 Executive's
termination of employment.
(d) Stock Ownership. It is understood that Company
policy anticipates that Executive will maintain a
level of stock ownership in the Company equal to three times
Executive's Base Salary. Grants of Restricted Stock (including
Performance Stock) under the terms of this Agreement and shares
of Company stock acquired upon exercise of an Option shall be
credited towards Executive's stock ownership. Executive is
expected to achieve the foregoing level of Company stock
ownership no later than five years after the date hereof.
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5. Make Whole Payment. In the event Executive forfeits or
otherwise loses (i) any restricted stock with respect to the
22,000 shares of restricted stock which would have been granted
on or about the end of calendar year 1995 or (ii) bonus payments
with respect to calendar year 1995 from his prior employer as a
result of his resignation from such employer in order to commence
employment with the Company, the Company shall pay to Executive
an amount, up to a maximum of $1.2 million, equal to the losses
Executive incurs with respect to such restricted stock or bonus.
The obligation of the Company to make such payment is contingent
upon Executive's use of his best efforts to obtain payment of
such amounts and after substantiation of Executive's losses to
the reasonable satisfaction of the Board.
6. Employee Benefits.
(a) Employee Benefit Plans, Programs or Arrangements. During
the Term, Executive 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.
(b) Vacation; Sick Leave. During the Term, the Executive
shall be entitled to a paid annual vacation of not less than
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twenty (20) business days during each calendar year and to
reasonable sick leave.
(c) Auto Allowance and Other Perquisites. During the Term,
Executive shall receive an automobile allowance of $20,000 per
year and the Company shall also reimburse Executive for the
reasonable costs of financial planning and tax preparation in
accordance with Company policy as in effect from time to time.
In addition, Executive shall be entitled, during the Term, 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.
(d) Supplemental Pension Benefit. It is understood that
Executive 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, the "Non-Qualified Plans") for
Executive's service with the Company under the terms of this
Agreement, the Company shall pay Executive a special supplemental
pension benefit equal to the amount which he would receive under
the Pension Plan and the Non-Qualified Plans if Executive were
credited with his Prior Service Period under the Pension Plan and
the Non-Qualified Plans; provided, however, that Executive shall
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vest in 50 percent of his benefits hereunder on Executive's
Commencement Date and in the remaining benefits hereunder at the
rate of 10 percent per year commencing on the first anniversary
of the Executive's Commencement Date. Executive's benefit
hereunder shall be calculated in the manner set forth in Exhibit
A hereto. Any benefits payable to Executive hereunder shall be
reduced by $111,528 per year, and shall also be reduced by any
amounts paid to Executive under the Pension Plan or the Non-
Qualified Plans.
(e) Relocation and Payment of Relocation Expenses.
Executive agrees that he and his family shall relocate to the
Wilton, Connecticut area. In order to assist Executive with such
relocation, the Company shall reimburse Executive for all
reasonable expenses incurred by Executive in connection with such
relocation, including, without limitation, the cost of relocation
consulting.
7. Termination of Employment.
(a) Termination by the Company for Cause or Termination by the
Executive Other Than for Good Reason. If the Company terminates
the employment of the Executive for Cause, if the Executive
terminates his employment other than for Good Reason or if
Executive's employment is terminated due to Executive's death,
Permanent Disability or retirement, the Company shall only be
obligated to pay Executive (i) any accrued but unpaid portion of
his Base Salary, (ii) any accrued vacation pay, and (iii) any
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benefits to which he is entitled to be paid in connection with
such a termination under, and subject to, the terms of the
Company's Benefit Plans. The amounts and benefits set forth in
clauses (i), (ii), and (iii) of the preceding sentence shall
hereinafter be referred to as "Accrued Benefits."
(b) Termination by the Company Without Cause or by the
Executive for Good Reason. If the Company terminates the
Executive's employment with the Company without Cause, or if the
Executive terminates his employment with the Company for Good
Reason, the Company shall pay to Executive, in satisfaction of
all the obligations of the Company with respect to Executive, all
Accrued Benefits and, in addition, pay or provide to the
Executive the following:
(i) an amount equal to the sum of (x) three times the sum
of (A) Executive's Base Salary at the rate in effect on
Executive's Termination Date and (B) the amount of Executive's
Target Bonus for the year in which the Termination Date occurs,
(y) the fair market value of 36,000 shares of Company common
stock on the Termination Date and (z) an amount equal to the
product of (i) the Target Bonus in respect of the year in which
such termination occurs, multiplied by (ii) a fraction the
numerator of which is the number of days in the calendar year
through Executive's Termination Date and the denominator of which
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is 365, payable in equal installments over a period of thirty-six
months commencing on the Termination Date;
(ii) for a period ending on the earlier of (x) three years
following Executive's Termination Date or (y) the date on which
Executive is covered under similar plans of a subsequent
employer, Executive and his eligible dependents shall continue to
participate in the welfare benefits plans of the Company
(including, without limitation, medical, dental and life
insurance coverage) in which he or his eligible dependents
participated at any time during the one-year period ending on the
date immediately preceding his Termination Date; provided,
however, that (A) such continued participation is possible under
the terms of such benefit plans, and (B) Executive 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 Executive immediately prior to the
Termination Date. If such continued participation is not
possible, the Company shall provide, at its sole cost and
expense, substantially identical benefits to the Employee and
shall pay an additional amount (reduced by the amount of any
contributions required under subparagraph (B) above) to the
Employee equal to the Employee's liability for federal, state and
local income taxes on such amounts;
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(iii) the vesting or alternative cash payment provided
for under Section 4(c) hereof with respect to Restricted Stock
and Options granted to Executive under the terms hereof; and
(iv) three years of additional vesting credit for purposes
of Section 6(d) and three years of additional service credit
under the Company's Non-Qualified Plans and for purposes of such
plans, Executive'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.
(c) Waiver and Release. The obligation of the Company to make
any payments or provide any benefits provided for under Section
5(b) hereof is contingent upon the execution, by Executive, of a
waiver and release in substantially the form attached hereto as
Exhibit B.
(d) Termination of Employment Due To Death or Permanent
Disability, or Retirement. In the event of Executive's
termination of employment hereunder due to Executive's death,
Permanent Disability or retirement, the Company will pay to
Executive (or his designated beneficiaries) all Accrued Benefits
and an amount equal to the product of (i) the Target Bonus in
respect of the year in which such termination occurs, multiplied
by (ii) a fraction the numerator of which is the number of days
in the calendar year through Executive's Termination Date and the
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denominator of which is 365; provided, however, that no
retirement shall be deemed to have taken place prior to
Executive's attainment of age 65, unless the Board approves such
retirement.
(e) Good Reason. For purposes of this Agreement, "Good
Reason" shall mean the occurrence of any of the following, other
than with the Consent of Executive:
(i) any failure to continue Executive as Chairman,
President or Chief Executive Officer of the Company or any
material reduction by the Company of Executive's duties or
responsibilities (except in connection with the termination of
Executive's employment for Cause, as a result of Permanent
Disability, as a result of Executive's death or by Executive
other than for Good Reason);
(ii) a reduction by the Company in Executive's Base Salary,
other than a reduction which is part of a general salary
reduction program affecting senior executives of the Company.
(iii) any material breach by the Company of the
provisions of this Agreement; 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 of Executive
hereunder.
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(f) Cause. For purposes of this Agreement, "Cause" shall mean
(i) willful malfeasance or willful misconduct by Executive in
connection with his employment, (ii) continuing refusal by
Executive to perform his duties hereunder or any lawful direction
of the Board of Directors of the Company (other than due to
Executive's physical or mental incapacity), after a demand for a
substantial performance is delivered to the Executive by the
Board which identifies the manner in which the Executive has not
performed his duties, (iii) any breach of the provisions of
Section 9 of this Agreement by Executive or any other material
breach of this Agreement by Executive, (iv) the willful engaging
by the Executive in conduct which is materially injurious to the
Company or (v) the indictment of Executive for (A) any felony or
(B) a misdemeanor involving moral turpitude. Termination of
Executive for Cause shall be made by delivery to Executive of a
copy of a resolution duly adopted by the affirmative vote of not
less than a majority of the Directors at a meeting of the Board
of Directors of the Company called and held for the purpose
(after 30 days prior written notice to Executive and reasonable
opportunity for Executive to be heard before the Board prior to
such vote), finding that in the reasonable judgment of such
Board, Executive was guilty of the conduct set forth in any of
clauses (i) through (iv) above and specifying the particulars
thereof; provided, however, that with respect to clause (v)
herein the Board shall determine in good faith that Executive's
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indictment is reasonably likely to have a material adverse effect
on Executive's ability to perform his duties hereunder as the
Chief Executive Officer of the Company.
(g) Permanent Disability. For purposes of this Agreement,
"Permanent Disability" means the absence of the Executive from
his duties with the Company on a full-time basis for one hundred
and eighty (180) consecutive days as a result of incapacity due
to physical or mental illness, such that executive would be
entitled to long term disability benefits under the long term
disability plan of the Company in effect at such time.
8. Notices. All notices or communications hereunder shall be
in writing, addressed as follows:
To the Company:
The Perkin-Elmer Corporation
761 Main Avenue
Norwalk, Connecticut 06859
Attn: Corporate Secretary
To Executive:
Tony L. White
with a copy to:
Schmiege, Daley & Mohan, P.C.
at the addresses they provide to the Company for these
purposes.
9. Nondisclosure of Confidential Information; Non-
Competition. (i) Executive shall not, without the prior written
consent of the Company, use, divulge, disclose or make accessible
to any other person, firm, partnership, corporation or other
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entity any Confidential Information pertaining to the business of
the Company or any of its affiliates, except (i) while employed
by the Company, in the business of and for the benefit of the
Company, or (ii) when required to do so by a court of competent
jurisdiction, by any governmental agency having supervisory
authority over the business of the Company, or by any
administrative body or legislative body (including a committee
thereof) with jurisdiction to order Executive to divulge,
disclose or make accessible such information. For purposes of
this Section 9, "Confidential Information" shall mean non-public
information concerning the financial data, strategic business
plans, product development (or other proprietary product data),
customer lists, marketing plans and other non-public, proprietary
and confidential information of the Company, its affiliates or
customers, that, in any case, is not otherwise available to the
public (other than by Executive's breach of the terms hereof).
(i) During the period of his employment hereunder and for
two years thereafter, Executive agrees that, without the prior
written consent of the Company, (A) he will not, directly or
indirectly, either as principal, manager, agent, consultant,
officer, stockholder, partner, investor, lender or employee or in
any other capacity, carry on, be engaged in or have any financial
interest in, any business which is in competition with the
business of the Company and (B) he shall not, on his own behalf
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or on behalf of any person, firm or company, directly or
indirectly, solicit or offer employment to any person who has
been employed by the Company at any time during the 12 months
immediately preceding such solicitation.
(ii) For purposes of this Section 9, a business shall be
deemed to be in competition with the Company if it is principally
involved in the purchase, sale or other dealing in any property
or the rendering of any service purchased, sold, dealt in or
rendered by the Company as a material part of the business of the
Company within the same geographic area in which the Company or
its affiliates effects such purchases, sales or dealings or
renders such services. Nothing in this Section 9 shall be
construed so as to preclude Executive from investing in any
publicly or privately held company, provided Executive's
beneficial ownership of any class of such company's securities
does not exceed 1% of the outstanding securities of such class.
(iii) Executive and the Company agree that this covenant
not to compete is a reasonable covenant under the circumstances,
and further agree that if in the opinion of any court of
competent jurisdiction such restraint is not reasonable in any
respect, such court shall have the right, power and authority to
excise or modify such provision or provisions of this covenant as
to the court shall appear not reasonable and to enforce the
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remainder of the covenant as so amended. Executive agrees that
any breach of the covenants contained in this Section 9 would
irreparably injure the Company. Accordingly, Executive agrees
that the Company may, in addition to pursuing any other remedies
it may have in law or in equity, cease making any payments
otherwise required by this Agreement and obtain an injunction
against Executive from any court having jurisdiction over the
matter restraining any further violation of this Agreement by
Executive.
10. Beneficiaries; References. Executive shall be entitled to
select (and change, to the extent permitted under any applicable
law) a beneficiary or beneficiaries to receive any compensation
or benefit payable hereunder following Executive's death, and may
change such election, in either case by giving the Company
written notice thereof. In the event of Executive's death or a
judicial determination of his incompetence, reference in this
Agreement to Executive shall be deemed, where appropriate, to
refer to his beneficiary, estate or other legal representative.
Any reference to the masculine gender in this Agreement shall
include, where appropriate, the feminine.
11. Arbitration. Other than the Company's rights under
Section 9 hereof, 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. Judgement
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may be entered on the arbitrator's award in any court having
jurisdiction.
12. Separability; Legal Fees. If any provision of this
Agreement shall be declared to be invalid or unenforceable, in
whole or in part, such invalidity or unenforceability shall not
affect the remaining provisions hereof which shall remain in full
force and effect. Each party shall bear the costs of any legal
fees and other fees and expenses which may be incurred in respect
of enforcing its respective rights under this Agreement;
provided, however, that the Company shall pay the costs of any
reasonable legal fees incurred by Executive in good faith in
enforcing his rights or entitlements under this Agreement if
Executive prevails in such enforcement action.
13. Assignment. This Agreement shall be binding upon and
inure to the benefit of the heirs and representatives of
Executive and the assigns and successors of the Company, but
neither this Agreement nor any rights or obligations hereunder
shall be assignable or otherwise subject to hypothecation by
Executive (except by will or by operation of the laws of
intestate succession) or by the Company, except that the Company
may assign this Agreement to any successor (whether by merger,
purchase or otherwise) to all or substantially all of the stock,
assets or businesses of the Company, if such successor expressly
agrees to assume the obligations of the Company hereunder.
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14. No Obligation to Mitigate Damages. Except as specifically
provided in this Agreement, Executive shall not be required to
mitigate damages or the amount of any payment provided for under
this Agreement by seeking other employment or otherwise, nor will
any payments under this Agreement be subject to offset in respect
of any amounts which Executive earns or becomes entitled to from
any other employer or other person after termination of his
employment with the Company.
15. Amendment. This Agreement may only be amended by written
agreement of the parties hereto.
16. Survivorship. The respective rights and obligations of
the parties hereunder shall survive any termination of this
Agreement to the extent necessary to the intended preservation of
such rights and obligations. The provisions of this Section 15
are in addition to the survivorship provisions of any other
section of this Agreement.
17. Governing Law. This Agreement shall be construed,
interpreted and governed in accordance with the laws of the State
of New York, without reference to rules relating to conflicts of
law.
18. Effect on Prior Agreements. This Agreement and the
Change-in-Control Agreement (executed concurrently herewith
entitling Executive to benefits thereunder) (the "Change in
Control Agreement") contain the entire understanding between the
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parties hereto and supersede in all respects any prior or other
agreement or understanding between the Company and Executive.
19. Withholding. The Company shall be entitled to withhold
from payment any amount of withholding required by law.
20. Survival. Notwithstanding the expiration of the Term,
the provisions of Section 9 hereof shall remain in effect as long
as is necessary to give effect thereto.
21. Supersession. Notwithstanding any other provision of
this Agreement, in the event of a Change in Control of the
Company, as defined under the Change in Control Agreement, the
provisions of this Agreement shall be superseded by the
provisions of the Change in Control Agreement.
22. Counterparts. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original.
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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
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