<PAGE> 1
As filed with the Securities and Exchange Commission on April 10, 2000
Registration No. 333-65367
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PERKINELMER, INC.
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2052042
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
45 WILLIAM STREET, WELLESLEY, MASSACHUSETTS 02481
(Address of Principal Executive Offices) (Zip Code)
PERKINELMER, INC. 1999 RESTATEMENT OF 1998 DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
TERRANCE L. CARLSON
SENIOR VICE PRESIDENT AND
GENERAL COUNSEL
PERKINELMER, INC.
45 WILLIAM STREET
WELLESLEY, MASSACHUSETTS 02481
(Name and Address of Agent for Service)
(781) 237-5100
(Telephone Number, Including Area Code, of Agent for Service)
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE REGISTERED PRICE OFFERING REGISTRATION
REGISTERED PER SHARE ($) PRICE ($) FEE ($)
---------- ---------------- -------------- --------- ------------
<S> <C> <C> <C> <C>
PerkinElmer, Inc. 1999 Restatement of 500,000 59.2188(2) 29,609,400 7,817
1998 Deferred Compensation Plan (1)
PerkinElmer, Inc. 1999 Restatement of $8,000,000(4) -- 8,000,000 2,112
1998 Deferred Compensation Plan (3)
Total: 500,000 shares -- 37,609,400 9,929
and $8,000,000
in deferred
compensation
obligations
</TABLE>
(1) The Registrant is registering shares of its Common Stock, $1.00 par
value per share, which are issuable in accordance with the terms of
this plan.
(2) Price estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(c) and (h) under the Securities Act of 1933,
and based on the average of the high and the low prices of the
Registrant's common stock on April 5, 2000, as listed on the New York
Stock Exchange.
(3) The Registrant is registering Deferred Compensation obligations that
are unsecured obligations of the Registrant to pay deferred
compensation in the future in accordance with the terms of the
PerkinElmer, Inc. 1999 Restatement of 1998 Deferred Compensation Plan.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended.
EXPLANATORY NOTE
This registration statement has been prepared in accordance with the
requirements of Form S-8 and relates to the Registrant's Common Stock being
offered and Deferred Compensation Obligations incurred by the Registrant,
pursuant to the PerkinElmer, Inc. 1999 Restatement of the 1998 Deferred
Compensation Plan, an amendment and restatement of the EG&G, Inc. 1998 Deferred
Compensation Plan. The Registrant, previously named EG&G, Inc., registered
$2,000,000 in Deferred Compensation Obligations to be incurred under the EG&G,
Inc. 1998 Deferred Compensation Plan on a registration statement on Form S-8
filed on October 6, 1998, which registration statement is amended hereby.
<PAGE> 3
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Securities Act"), the information required by Part I is included in
documents which will be sent or given to participants in the PerkinElmer, Inc.
1999 Restatement of 1998 Deferred Compensation Plan.
<PAGE> 4
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this registration statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act, or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act that contains
audited financial statements for the Registrant's latest fiscal year
for which such statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
document referred to in (1) above.
(3) The description of the common stock of the Registrant,
$1.00 par value per share (the "Common Stock"), contained in a
registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
<PAGE> 5
ITEM 4. DESCRIPTION OF SECURITIES
Under the PerkinElmer, Inc. 1999 Restatement of 1998 Deferred
Compensation Plan (the "Plan"), the Registrant will provide a select group of
highly compensated or management employees (the "Eligible Employees") and
nonemployee directors (the "Eligible Directors") the opportunity to enter into
agreements for the deferral of a specified percentage of their cash compensation
and awards of the Registrant's Common Stock. The obligations of the Registrant
under such agreements (the "Obligations") will be unfunded and unsecured general
obligations of the Registrant to pay in the future the value of the deferred
compensation adjusted to reflect the performance, whether positive or negative,
of investment measurement options, including the Registrant's Common Stock,
chosen by each participant from those measurement options made available under
the Plan during the deferral period in accordance with the terms of the Plan.
The Plan will be administered by the members of the
Registrant's Compensation and Stock Option Committee of the Board of Directors
(the "Committee"). The Committee may from time to time adopt rules and
procedures governing the Plan and shall have the authority to give interpretive
rulings with respect to the Plan.
An Eligible Employee may elect to defer up to 50% of his or
her base pay and up to 100% of his or her incentive compensation. An Eligible
Director may elect to defer up to 100% of his or her directors fees, whether
such fees are paid in cash or Common Stock. The amount of compensation to be
deferred by each participant will be determined in accordance with the Plan
based on elections by the participant. In addition, an Eligible Employee may
defer the receipt of restricted stock which has been granted to the Eligible
Employee.
The Obligations for each participant will equal the balance in
a record-keeping account established for such participant. The investment
earnings credited to such account will be indexed to one or more mutual funds,
indices or the Registrant's Common Stock fund, the type of which will be
individually chosen by each participant from a list of types of investment
indices made available under the Plan. Each participant's record-keeping account
will be adjusted to reflect contributions by the Registrant and the investment
experience of the selected mutual fund, indices or the Registrant's Common Stock
fund, including any appreciation or depreciation. The Registrant is not required
to actually invest the deferred compensation in the types of funds specified by
participants. However, the Registrant may establish types of funds specified by
participants. The Registrant may also establish a trust, which may be a grantor
trust for federal income purposes, to make such investment to assist the
Registrant in meeting the Obligations.
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<PAGE> 6
The Obligations will be distributed by the Registrant in
accordance with the terms of the Plan and in certain instances upon a payment
plan selected by each participant. Upon a determination by the Committee that a
participant has suffered an unforeseeable financial emergency, the Committee may
direct the Registrant to pay such participant an amount necessary to meet the
emergency, but not exceeding the aggregate balance of the participant's deferral
account. Early withdrawals based on unforeseen financial emergencies will be
subject to 10% penalty. A participant may also withdraw his or her entire record
keeping account balance at any time with a 10% penalty.
At the time a participant initially establishes his or her
record-keeping account, he or she may also elect to withdraw his or her entire
account, without penalty, upon a change-in-control of the Registrant, as defined
in the Plan. If such an election is made and a change-in-control occurs,
Obligations will be distributed to/participants in a lump sum as soon as
possible after the occurrence of a change-in-control.
A participant's right or the right of any other person to the
Obligations cannot be assigned or transferred in any manner or be subject to
alienation, anticipation, sale, pledge, encumbrance or other legal process. If a
participant defers compensation into the Registrant's Common Stock fund,
distributions from that port, on of the participant's deferred compensation will
be made in Common Stock. The Obligations are not convertible into another
security of the Registrant. The Obligations will not have the benefit of a
negative pledge or any other affirmative or negative covenant on the part of the
Registrant.
The Registrant may at any time amend, suspend or reinstate any
or all of the provisions of the Plan, except that no such amendment, suspension
or reinvestment may adversely affect any participant's deferral account as it
existed as of the day before the effective date of such amendment, suspension or
reinstatement, without such participant's prior written consent. The Registrant
may terminate the Plan at any time and for any reason whatsoever; provided,
however, that a termination of the Plan may not adversely affect the value of
such participant's deferral account at it existed as of the effective date of
such termination without the participant's prior written consent.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock being offered hereby will be
passed upon for the Company by Hale and Dorr LLP, Boston, Massachusetts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67, Chapter 156B of the General Laws of the
Commonwealth of Massachusetts, as amended (the "Massachusetts Business
Corporation Law"), and
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<PAGE> 7
Article V, Section 9 of the Registrant's Bylaws, to which reference is hereby
made, contain provisions authorizing indemnification by the Registrant of
directors, officers, employees or agents against certain liabilities and
expenses, which they may incur as directors, officers, employees or agents of
the Registrant or of certain other entities. Section 67, Chapter 156B of the
Massachusetts Business Corporation Law provides that the indemnification of
directors, officers, employees and agents of a corporation and persons who serve
at the corporation's request as directors, officers, employees and other agents
of another organization may be provided to whatever extent as shall be specified
by (i) the articles of organization of the corporation or (ii) a bylaw adopted
by the stockholders or (iii) a vote adopted by the holders of a majority of the
shares of stock entitled to vote on the election of directors. Unless otherwise
provided in the articles of organization or the bylaws, the indemnification of
any persons described above who are not directors of the corporation may be
provided by the corporation to the extent authorized by the directors. Such
indemnification may include payment by the corporation of expenses incurred in
defending a civil or criminal action or proceeding prior to the final
disposition of such action or proceeding, upon receipt of an undertaking by the
indemnified person to repay such payment if he shall be adjudicated to be not
entitled to indemnification under Section 67, Chapter 156B of the Massachusetts
Business Corporation Law. Any indemnification may be provided although the
person to be indemnified is no longer an officer, director, employee or agent of
the corporation or of such other organization. Indemnification may not be
provided for any person with respect to any matter as to which that person shall
have been adjudicated in any proceeding to not have acted in good faith in the
reasonable belief that his action was in the best interest of the corporation.
Section 65, Chapter 156B of the Massachusetts Business Corporation Law
provides a limitation on the imposition of liability under other sections of the
Massachusetts Business Corporation Law. Under this Section, a director, officer
or incorporator of a corporation is to perform his duties in good faith and in a
manner he reasonably believes to be in the best interests of the corporation and
with such care as an ordinarily prudent person in a like position would use
under similar circumstances. Such director, officer or incorporator is entitled
to rely on information, opinions, reports or records, including financial
statements, books of accounts and other financial records, which are prepared by
or presented by or under the supervision of (i) one or more officers or
employees of the corporation whom the director, officer or incorporator
reasonably believes to be reliable and competent in the matters presented, or
(ii) counsel, public accountants or other persons as to matters that the
director, officer or incorporator reasonably believes to be within such a
person's professional expert competence, or (iii) in the case of a director, a
duly constituted committee of the Board of Directors upon which he does not
serve, as to matters within its delegated authority, which committee the
director reasonably believes to merit confidence. If a director, officer or
incorporator performs his duties in the manner that is set forth above, that
fact shall be an absolute defense to any claim asserted against him except as
expressly provided by statute.
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<PAGE> 8
Section 13, Chapter 156B of the Massachusetts Business Corporation Law
provides that the articles of organization of a corporation may contain a
provision eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of a fiduciary
duty as a director notwithstanding any provision of law imposing such liability;
provided, however, that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Sections 61 or 62, Chapter 156B of the Massachusetts Business
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. Article Six of the Restated Articles of Organization
of the Registrant contains a provision consistent with Section 13, Chapter 156B
of the Massachusetts Business Corporation Law and provides that to the fullest
extent permitted by the Massachusetts Business Corporation Law, a director of
the Registrant shall not be personally liable to the Registrant or its
stockholder for monetary damages for breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability.
Section 9 of Article V of the Bylaws of the Registrant contains
provisions relating to the indemnification of directors and officers of the
Registrant, which are consistent with Section 67, Chapter 156B of the
Massachusetts Business Corporation Law. This Section provides that no
indemnification will be provided to any person who was or is a director or
officer with respect to any matter as to which such person shall have been
finally adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interest of the corporation;
nor shall indemnification be provided where the corporation is required or has
undertaken to submit to a court the question of whether or not indemnification
by it is against public policy and it has been finally determined that such
indemnification is against public policy; provided, however, that, prior to such
final adjudication, the corporation may compromise and settle any such claims
and liabilities and pay such expenses, if such settlement or payment, or both,
appears, in the judgment of a majority of those members of the Board of
Directors who are not directly involved in such matters, to be for the best
interest of the corporation as evidenced by a resolution to that effect adopted
after receipt by the corporation of a written opinion of counsel for the
corporation that, based upon the facts available to such counsel such person has
not acted in a manner that would prohibit indemnification.
Section 67, Chapter 156B of the Massachusetts Business Corporation Law
also contains provisions authorizing a corporation to obtain insurance on behalf
of any director, officer, employee or agent of the corporation against
liabilities, whether or not the corporation would have the power to indemnify
against such liabilities. The Registrant maintains directors' and officers'
liability and company reimbursement liability insurance. Subject to certain
deductibles, such insurance will pay up to $50,000,000 per year on claims or
errors and omissions against the Registrant's directors and officers and will
reimburse the Registrant for amounts paid to indemnify directors and officers
against the costs of such claims pursuant to the Registrant's Bylaws.
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<PAGE> 9
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of this
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in
this registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in this registration statement or any material
change to such information in this registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the
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<PAGE> 10
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
2. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-7
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Wellesley, Massachusetts on April 10, 2000.
PerkinElmer, Inc.
By: /s/ Gregory L. Summe
--------------------------------------------
Gregory L. Summe
President, Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
We, the undersigned officers and directors of PerkinElmer, Inc. hereby
severally constitute Gregory L. Summe, Robert F. Friel, Terrance L. Carlson and
David E. Redlick, and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the registration statement on Form S-8 filed
herewith and any and all subsequent amendments to said registration statement,
and generally to do all such things in our names and behalf in our capacities as
officers and directors to enable PerkinElmer, Inc. to comply with all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by said attorneys, or any of
them, to this registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gregory L. Summe President, Chief Executive April 10, 2000
- --------------------------------- Officer and Chairman of the Board
Gregory L. Summe of Directors (Principal Executive
Officer)
/s/ Robert F. Friel Senior Vice President and Chief April 10, 2000
- --------------------------------- Financial Officer (Principal
Robert F. Friel Financial Officer)
</TABLE>
II-8
<PAGE> 12
<TABLE>
<S> <C> <C>
/s/ Gregory D. Perry Corporate Controller (Principal April 10, 2000
- --------------------------------- Accounting Officer)
Gregory D. Perry
/s/ Tamara J. Erickson Director April 10, 2000
- ---------------------------------
Tamara J. Erickson
/s/ Kent F. Hansen Director April 10, 2000
- ----------------------------------
Kent F. Hansen
/s/ John F. Keane Director April 10, 2000
- ------------------------------------
John F. Keane
/s/ Nicholas A. Lopardo Director April 10, 2000
- ---------------------------------
Nicholas A. Lopardo
/s/ Greta E. Marshall Director April 10, 2000
- -----------------------------------
Greta E. Marshall
/s/ Michael C. Ruettgers Director April 10, 2000
- ---------------------------------
Michael C. Ruettgers
/s/ Gabriel Schmergel Director April 10, 2000
- ---------------------------------
Gabriel Schmergel
/s/ John Larkin Thompson Director April 10, 2000
- ------------------------------
John Larkin Thompson
/s/ G. Robert Tod Director April 10, 2000
- -----------------------------------
G. Robert Tod
</TABLE>
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<PAGE> 13
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4.1 Restated Articles of Organization of the Registrant filed with the Securities and Exchange
Commission on March 30, 1999 as Exhibit 3.1 to the Registrant's Annual Report on Form 10-K and
incorporated herein by reference.
4.2 Articles of Amendment to Restated Articles of Organization of the Registrant filed with the
Securities and Exchange Commission on November 5, 1999 as Exhibit 3 to the Registrant's Current
Report on Form 8-K and incorporated herein by reference.
4.3 Bylaws of the Registrant filed with the Securities and Exchange Commission on March 24,
1998 as Exhibit 3.2 to the Registrant's Annual Report on Form 10-K and incorporated herein
by reference.
4.4 The Rights Agreement dated as of January 25, 1995 between the Registrant and the First
National Bank of Boston filed with the Securities and Exchange Commission on January 27,
1995 as Exhibit 4.1 to the Registrant's Current Report on Form 8-K and incorporated herein
by reference.
4.5 Specimen Certificate of Common Stock, $1.00 par value per share, of the Registrant filed with
the Securities and Exchange Commission on November 5, 1999 as Exhibit 4 to the Registrant's
Current Report on Form 8-K and incorporated herein by reference.
#5.1 Opinion of Hale and Dorr LLP.
#10.1 PerkinElmer, Inc. 1999 Restatement of 1998 Deferred Compensation Plan.
#23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
#23.2 Consent of Arthur Andersen LLP, Boston, MA.
</TABLE>
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<PAGE> 14
<TABLE>
<S> <C>
#23.3 Consent of PricewaterhouseCoopers LLP, Stamford, CT.
#24.1 Power of Attorney (included on pages II-8 and II-9 of this Registration statement).
</TABLE>
- ---------------
# Filed herewith
II-11
<PAGE> 1
EXHIBIT 5.1
HALE AND DORR LLP
Counsellors At Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
April 10, 2000
PerkinElmer, Inc.
45 William Street
Wellesley, Massachusetts 02481
Re: PerkinElmer, Inc.
Deferred Compensation Plan
Ladies and Gentlemen:
We have assisted in the preparation of Post-Effective Amendment No. 1
to a Registration Statement on Form S-8 (the "Registration Statement") (File No.
333-65367) to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to (i) an
aggregate of 500,000 shares of Common Stock, $1.00 par value per share (the
"Shares"), of PerkinElmer, Inc., a Massachusetts corporation (the "Company"),
and $8,000,000 in deferred compensation obligations (the "Obligations"), which
represent unsecured obligations of the Company, issuable under the PerkinElmer,
Inc. 1999 Restatement of 1998 Deferred Compensation Plan (the "Plan").
We have examined the Restated Articles of Organization of the Company,
as amended to date, and the Bylaws of the Company, as amended to date, and
originals, or copies certified to our satisfaction, of all pertinent records of
the meetings of the directors and stockholders of the Company, the Registration
Statement and such other documents relating to the Company as we have deemed
material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
completeness and accuracy of all corporate records provided to us, the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the
<PAGE> 2
PerkinElmer, Inc.
April 10, 2000
Page 2
authenticity of the originals of such latter documents and the legal competence
of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer
and sale of the Shares in accordance with the Plan, to register and qualify the
Shares for sale under all applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or
jurisdiction other than the state laws of The Commonwealth of Massachusetts and
the federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and, when the Shares are issued
and paid for in accordance with the terms and conditions of the Plan, the
Shares will be validly issued, fully paid and nonassessable.
Based on and subject to the foregoing, we are also of the opinion that
the Obligations, when issued by the Company in the manner provided in the Plan,
will be valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, arrangement, moratorium and other laws
of general applicability.
It is understood that this opinion is to be used only by the Company in
connection with the offer and sale of the Shares under the Securities Act while
the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein under the caption "Interests of Named Experts and Counsel." In
giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
--------------------------------------
HALE AND DORR LLP
<PAGE> 1
EXHIBIT 10.1
PerkinElmer, Inc.
1998
DEFERRED COMPENSATION PLAN
1999 Restatement
PURPOSE
The purpose of the PerkinElmer, Inc. 1998 Deferred Compensation Plan
(the "Plan") is to provide non-employee directors and a select group of
management and highly compensated Employees who have contributed to, and are
expected to continue to contribute to, the growth, development and business
success of PerkinElmer, Inc. with an opportunity to defer receipt of their
compensation in order to build savings. This Plan is sponsored by PerkinElmer,
Inc. (the "Company") and the Company, and any subsidiary designated by the
Company, or the Compensation and Stock Option Committee of the PerkinElmer, Inc.
Board of Directors, (the "Committee" and the "Board", respectively), shall be
Participating Employers under this Plan; provided that the Participating
Employers shall automatically include all subsidiaries which employ Officers as
defined in Section 1.1 of the Plan, without any further designation. This Plan
shall be unfunded for tax purposes and for purposes of Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
ARTICLE 1
DESIGNATION, ENROLLMENT, TERMINATION
1.1 DESIGNATION BY COMMITTEE. Participation in the Plan is limited
to non-employee directors of the Company and a select group of
management and highly compensated Employees of the Company.
Executive Officers of the Company as defined under Rule 3b-7
of the Securities Exchange Act of 1934 (the "Officers") and
such other employees of a Participating Employer who (i)
receive Base Salary (prior to any deferral under this Plan) in
excess of $100,000, and (ii) are designated by the Committee,
shall be eligible to participate in the Plan (an "Eligible
Executive"). Each non-employee director of the Company shall
also be eligible to participate in the Plan (an "Eligible
Director").
1.2 ENROLLMENT. In order to participate, each Eligible Executive
and Eligible Director shall complete, execute and return to
the Committee all elections on a form substantially as
attached hereto (the "Election Form") or any
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other form used by the Committee with respect to the deferrals
under Section 2.9. The Committee may, from time to time, (i)
establish such other enrollment requirements as it determines
in its sole discretion are necessary, (ii) modify the Election
Form, and (iii) provide for an alternative enrollment method.
1.3 COMMENCEMENT OF PARTICIPATION. An Eligible Director or
Eligible Executive shall commence participation (become a
"Participant") in the Plan with the first payroll in the month
following the month in which the Eligible Director or Eligible
Executive completes the enrollment requirements to the
satisfaction of the Committee ("Completes Enrollment"). If an
Eligible Executive fails to Complete Enrollment within 30 days
following the date he or she becomes an Officer of the
Company, or is designated as an Eligible Executive by the
Committee, then such Eligible Executive shall not be eligible
to participate in the Plan until the first day of the Plan
Year following the date he or she Completes Enrollment. If an
Eligible Director fails to Complete Enrollment within 30 days
following the date he or she becomes an Eligible Director or
the Effective Date of the 1999 Restatement, whichever is
later, the Eligible Director shall not be eligible to
participate in the Plan until the first day of the Plan Year
following the date he or she Completes Enrollment.
1.4 COMMITTEE TERMINATION OF PARTICIPATION. If the Committee
determines in good faith that a Participant is no longer (a)
an Officer of the Company, (b) an Eligible Director, or (c) a
member of the class of employees from among whom Eligible
Executives may be designated by the Committee, the Committee
shall have the right, in its sole discretion, to (i) terminate
any deferral election the Participant has made for the
remainder of the Plan Year in which the Participant's
membership status changes, (ii) prevent the Participant from
making future deferral elections and/or (iii) immediately
distribute any amounts previously deferred by the Participant,
adjusted for gains and losses, as if the Participant had
terminated employment under Section 4.5, and terminate the
Participant's participation in the Plan.
1.5 AUTOMATIC TERMINATION OF PARTICIPATION. Participation in this
Plan will automatically terminate on (i) the Participant's
termination of employment or ceasing to be an Eligible
Director; (ii) transfer to a subsidiary of the Company which
is not a Participating Employer; or (iii) the Participant's
death. In the event of such termination, the Participant's
deferral election shall continue in effect with respect to
amounts paid following termination with respect to which an
election was made prior to such termination.
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1.6 Effective Date. April 1, 1998; provided that no deferrals may
be made under Section 2.1 prior to July 1, 1998. The Effective
Date of the 1999 Restatement is October 20, 1999.
ARTICLE 2
DEFERRALS; CREDITS
2.1 DEFERRAL ELECTION.
(a) BASE SALARY AND ANNUAL BONUS. For each calendar year
(the "Plan Year"), a Participant may elect to defer
up to one-half (1/2) of the Participant's Base
Salary and/or part or all of the bonus under any
annual bonus plan or arrangement maintained by the
Company or such other bonus arrangement as may be
designated by the Committee in its sole discretion.
An Eligible Director may defer any part or all of
those directors fees to be paid to the Eligible
Director in the form of Company stock. The Committee
may in its sole discretion establish a minimum
deferral amount at any time or from time to time, may
increase the maximum amount which may be deferred and
may establish different minimum and maximum deferral
amounts for different Participants. Base Salary shall
mean regular cash compensation for services performed
by the Participant and paid during the calendar year,
excluding, without limitation, bonuses of every type,
commissions, overtime, fringe benefits, stock options
and the compensation received or deemed to have been
received by a Participant upon the exercise of stock
options or the sale of stock received on such
exercise, relocation expenses, incentive payments,
non-monetary awards, directors' fees and other fees
and allowances. Base Salary shall be calculated
before reduction for any voluntary deferral under
this or any other plan made available to the
Participant by the Company, such as deferrals under
Sections 125 and 402 of the Internal Revenue Code of
1986, as amended, (the "Code").
If no election is made, the amount deferred shall be
zero.
(b) TERMS OF ELECTION.
If a Participant first becomes a Participant after
the first day of a Plan Year, or in the case of the
first Plan Year of the Plan itself, the election to
defer shall only apply to that portion of the Base
Salary which has not yet been earned by the
Participant as of the date the Participant Completes
Enrollment. An election to defer may be expressed in
any manner acceptable to the Committee from time to
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time. No election shall be effective which would
reduce the Participant's Base Salary below an amount
which the Committee determines would be the minimum
required in order to meet all applicable legal
requirements.
2.2 TIMING OF DEFERRAL ELECTION. A new Election Form will be
required for each Plan Year. An Election Form must be
delivered, in accordance with procedures established by the
Committee, before the end of the Plan Year preceding the Plan
Year for which the election is made ("Salary Deferral");
provided, however, that an election to defer any bonus to be
paid for a Plan Year or to defer the payment of directors fees
to be paid in the form of Company stock may be made up to
September 30 of such Plan Year.
Salary Deferral elections for the 1998 Plan Year must be made
no later than the later of (i) July 1, 1998, or (ii) 30 days
after a Participant becomes an Eligible Executive or Eligible
Director.
Salary Deferral elections for the Plan Year in which an
individual first becomes an Eligible Executive shall be made
within 30 days after such individual becomes an Eligible
Executive.
2.3 IMPLEMENTATION OF DEFERRAL. For each Plan Year, the portion of
Base Salary which the Participant elected to defer shall be
withheld from each regularly scheduled payroll in equal
amounts, as adjusted from time to time for increases and
decreases in Base Salary. The deferral of a portion of any
bonus shall be withheld at the time the bonus is or otherwise
would have been paid to the Participant, whether or not this
occurs during the Plan Year itself. No deferral shall be
permitted for the Plan Year following the Plan Year in which
the Participant has received a distribution under Article 3.
2.4 VESTING. A Participant shall at all times be 100% vested in
the amounts deferred.
2.5 DEFERRAL DISTRIBUTION. Any Election Form containing an
election of a deferral of Base Salary, directors fees or a
bonus, must include elections, in accordance with the terms of
the Plan as to (i) the date as of which distribution of such
deferrals will commence, and (ii) whether distribution of such
deferrals will be in a lump sum or installments as described
in Article 4. The Participant may also elect whether or not to
receive a distribution upon the occurrence of a change of
control of the Company pursuant to Section 4.9, below. The
distribution of all of a Participant's Deferral Accounts must
commence, as provided in Article 4, no later than six months
after the date of the Participant's termination of employment
or ceasing to be an Eligible Director. The Participant may at
any time
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which is at least six months before a distribution date make
an irrevocable election to set a later distribution date. The
election of distribution in a lump sum or installments may be
modified after the initial election by filing another Election
Form with the Committee, as provided herein. See Section
2.6(b) covering special rules applicable to Deferral Accounts
which are treated as invested in the Company Stock Fund.
2.6 ACCOUNTS.
(a) ACCOUNTING. The Company or its designee shall
establish an account for recordkeeping purposes with
respect to each Participant and each date of
distribution elected by such Participant and each
form in which distributions will be made or commence
on such date of distribution (the "Deferral
Account"). The Deferral Account shall be established
only to determine the amount to which the Participant
is entitled under the terms of this Plan. The Company
shall increase or decrease the balance in each
Deferral Account as follows: (i) by adding (or
establishing new Deferral Accounts with respect to)
all amounts withheld in accordance with the
Participant's deferrals under Article 2, (ii)
crediting or debiting each Deferral Account with
earnings and losses of the investment accounts used
for measuring such performance as described in
paragraph (b), (iii) crediting each Deferral Account
with the credit, if any, described in Section 2.11,
and (iv) subtracting distributions made to or on
behalf of the Participant under this Plan.
(b) EARNINGS. The Participant, in any manner permitted by
the Committee, may elect, from time to time, those
investment funds made available by the Committee from
time to time, in which his or her Deferral Accounts
shall be treated as having been invested for purposes
of this Plan (the "Measuring Accounts").
Notwithstanding the foregoing, any election of a
Measuring Account which is intended to invest
primarily in the voting common stock of the Company
(the "Company Stock Fund") cannot be changed, except
with respect to amounts which will be withheld from
the Participant and deferred under this Plan after
the change in the election of the Company Stock Fund.
In the case of deferrals of receipt of Company stock,
such deferrals shall be invested solely in the
Company Stock Fund. A Participant's Deferral Accounts
shall be treated as if invested in accordance with
the Participant's election, as determined by the
Committee, for purposes of debiting or crediting the
balance in such Deferral Accounts to reflect the
performance of the Measuring Accounts. If the
Committee or the Trustee of any trust established
with respect to this Plan invests any assets in the
investments selected as the Measuring Accounts,
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no Participant shall have any right in or to such
investments themselves, and the Participant's rights
shall at all times be only to receive the amount
calculated under the terms of this Plan from the
Company.
(c) EXPENSES. No Plan expenses shall be allocable to the
Deferral Accounts.
2.7 EMPLOYMENT TAXES. For each Plan Year in which any deferral is
elected under Section 2.1, there shall be withheld from other
compensation payable to the Participant, in such manner as the
Committee shall determine, the Participant's share of any
employment or other taxes payable with respect to such
deferral amounts. If necessary, the Committee may reduce the
deferral in order to comply with this Section 2.7.
2.8 WITHHOLDING. Any withholding required under any applicable law
with respect to any payment under this Plan shall be made as
determined by the Committee.
2.9 EVA BANK DEFERRAL. Any individual who is a participant in the
Economic Value Added Incentive Plan ("EVA Plan"), who is (i)
an Officer of the Company, or (ii) eligible to be designated
as an Eligible Executive under Section 1.1 of this Plan, and
who had accrued a balance in the EVA Plan, may elect to defer
receipt of such balance under the terms of this Plan on a form
approved by the Committee no later than April 7, 1998. Such
deferral of the accrued benefit under the EVA Plan shall be
accounted for in a separate Deferral Account under this Plan
and shall be subject to all the applicable terms of this Plan,
as in effect from time to time; provided that such Deferral
Account shall always be treated as if the Participant elected
a Measuring Account which was the Company Stock Fund and
subject to the provisions of 2.6(b) concerning distribution of
such Deferral Account.
2.10 DEFERRALS FROM OTHER PLANS. The Plan may accept the transfer
of amounts deferred by a Participant under any other deferral
plan or arrangement provided by the Company, including without
limitation any shares of common stock of the Company which but
for such deferral would be vested and nonforfeitable. Any
amounts deferred representing shares of Company common stock
shall be accounted for on a share by share basis, with
appropriate adjustments to reflect changes in the capital
structure of the Company, and shall, when distributed, be
distributed in the form of common stock of the Company.
Notwithstanding any of the provisions of the Plan to the
contrary, the Participant shall not have any right to elect to
have any amounts deferred in the form of Company
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common stock measured by reference to any Measurement Fund
other than the Company Stock Fund. The Committee may direct
the Plan to accept the transfer of amounts deferred by a
Participant under a deferral plan or arrangement sponsored by
a former employer of the Participant.
2.11 COMPANY CREDITS. As soon as practicable after the end of a
Plan Year, the Company shall credit the Deferral Account of
each Participant who was eligible to make contributions to the
PerkinElmer, Inc. Savings Plan (the "Savings Plan") with an
amount equal to the excess, if any, of (a) the matching
contribution that would have been made to such Participant's
account under the Savings Plan if no deferral had been made
under this Plan and the Participant had elected to make the
maximum permitted contribution under the Savings Plan over (b)
the matching contribution which actually was made to such
Participant's account under the Savings Plan. In order to
receive a credit under this Section 2.11, the Participant must
make the maximum permissible contribution under the Savings
Plan. In addition, the Company may, in its sole discretion,
credit the Deferral Account of any Participant with such
amounts as it deems appropriate and shall have no obligation
to provide the same credit to any other Participant.
2.12 INVESTMENT OF TRUST ASSETS. The Trustee of any trust
established with respect to this Plan shall be authorized,
upon written instructions received from the Committee, to
invest and reinvest the assets of the trust in accordance with
the instructions and the terms of the applicable trust
agreement.
ARTICLE 3
UNFORESEEN FINANCIAL EMERGENCIES
If the Participant experiences an Unforeseen Financial Emergency, the
Participant may request, in writing, a partial or full distribution
from the Plan. The distribution shall not exceed the lesser of the sum
of the Participant's Account Balances, calculated as if such
Participant were receiving a distribution, in a lump sum, on
termination of employment, or the amount reasonably needed to satisfy
the Unforeseen Financial Emergency as determined by the Committee.
Distributions shall be made from all the Deferral Accounts
proportionately. If the Committee grants the request for a
distribution, it shall be made within 60 days of the date of approval.
For purposes of this Plan, an Unforeseen Financial Emergency is an
event that would result in severe financial hardship for the
Participant for which the Participant has no other resources which can
reasonably be used (and has received all loans and distributions,
including hardship distributions, for which the Participant is eligible
under the Savings
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Plan), as a result of (a) illness or accident affecting the Participant
or a member of the Participant's family; (b) uninsured loss, or (c) any
other extraordinary and unforeseen circumstance approved by the
Committee in their sole control.
ARTICLE 4
DISTRIBUTIONS
4.1 DISTRIBUTION ELECTIONS. A Participant shall receive a
distribution of his or her Deferral Accounts on the date, and
in the form, elected by the Participant subject to the
provisions of this Article 4 and Section 2.6(b).
4.2 METHOD OF DISTRIBUTION. A Participant shall elect on each
Election Form completed with respect to an election to defer
receipt of Base Salary or bonuses or directors fees, the
method of distribution with respect to that deferral and the
earnings thereon as provided in Section 2.5 and subject to the
provisions of Section 2.6(b). Distributions may be made in a
lump sum or installments of from 2 to 10 years in the case of
a Participant whose employment terminates after attaining
Normal Retirement Age. In the case of a Participant whose
employment terminates before attaining age, Normal Retirement
Age, distributions may only be made in the form of a lump sum,
provided that a Participant may request an alternative form of
distribution in writing. Normal Retirement Age shall be age 65
for all Participants who are Employees and for Eligible
Directors shall be the retirement age for Directors set for in
the By-Laws of the Company. The Committee shall have sole
discretion as to whether such a request is approved. The
Participant may change his or her election of the method of
distribution of any Deferral Account or his or her election to
receive the distribution set forth in Section 4.9, below, by
submitting a new Election Form to the Committee, provided that
any such Election Form is submitted at least six months prior
to the date on which distribution of the Deferral Account will
commence and is accepted by the Committee in its sole
discretion. The Election Form most recently accepted by the
Committee shall govern the distribution of the Deferral
Account to which it applies. If a Participant does not make
any election accepted by the Committee with respect to the
distribution of a Deferral Account, then such Deferral Account
shall be payable in a lump sum.
4.3 DETERMINATION OF INSTALLMENTS. If installments are elected,
then each installment shall be paid on the anniversary of the
first installment or at any time which is no more than 90 days
before or after the anniversary. The installment shall be
calculated by multiplying the balance in the Deferral Account
being distributed by a fraction, the numerator of which is
one, and the denominator of which is the remaining number of
annual
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payments due the Participant. Installment payments of amounts
deferred in the form of Company Stock shall be determined
using the procedures set forth in the preceding sentence,
except that no fractional shares shall be distributed. By way
of example, if the Participant elects 10 year installments,
the first payment shall be 1/10 of the Deferral Account with
respect to which this election is made. The following year,
the payment shall be 1/9 of the then value of the Deferral
Account, etc.
4.4 DATE OF DISTRIBUTION ELECTION. As set forth in Section 2.5,
each Election Form containing an election of a deferral under
this Plan, shall include the election of a date of
distribution by the Participant. Such date of distribution may
be any future date, or the Participant's date of termination
of employment. The Participant's election of a date of
distribution may be changed in a manner consistent with
Section 2.5. Lump sum distribution shall be made, or
installment distributions shall commence, no later than 90
days after the last day of the Plan Year in which distribution
must be made or commence under the terms of the Plan.
4.5 AUTOMATIC DISTRIBUTION. Notwithstanding the foregoing, all
distributions, regardless of the date for distribution elected
by the Participant, must commence on termination of
employment. For purposes of this Plan, termination of
employment includes death, ceasing to be an Eligible Director,
voluntary termination of employment by the Participant or
termination of employment by the Company or any subsidiary. It
does not include the transfer to a subsidiary of the Company
that has not adopted the Plan.
4.6 DEATH PRIOR TO COMPLETE DISTRIBUTION If a Participant dies
before all his or her Deferral Accounts are distributed, the
Participant's remaining Deferral Accounts shall continue in
effect under the terms of this Plan and shall be paid to the
Participant's Beneficiary in the form elected by the
Participant, but commencing within one year following the
death of the Participant.
4.7 FORM OF DISTRIBUTION. All distributions under this Plan shall
be in cash, except that any amount treated as invested in the
Company Stock Fund under Section 2.6(b) shall be distributed
in shares of voting common stock of the Company, valued at the
time of distribution.
4.8 WITHDRAWAL ELECTION. A Participant (or, after the
Participant's death, his or her Beneficiary) may elect, at any
time, to withdraw all of his or her Account Deferral,
calculated as of the day of the election, less a withdrawal
penalty equal to 10% of such amount (the net amount shall be
referred to as the "Withdrawal Amount"). This election may be
made at
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any time by a Participant, and after the Participant's death
by his or her Beneficiary, irrespective of whether the
Participant or Beneficiary has begun to receive installment
payments. No partial withdrawals of the Withdrawal Amount
shall be allowed. The Participant (or his or her Beneficiary)
shall make this election by giving the Committee advance
written notice of the election in a form determined from time
to time by the Committee. The Participant (or his or her
Beneficiary shall be paid the Withdrawal Amount, the
Participant's participation in the Plan shall terminate, and
the Participant shall not be eligible to participate in the
Plan for the remainder of the Plan Year and the next Plan
Year.
4.9 DISTRIBUTION ON CHANGE IN CONTROL. A Participant may elect to
receive a distribution of his Deferral Accounts upon a "change
in control" of the Company (as such terms are defined in the
trust referred to in Article XI below) (a "Change in
Control"). If such an election is in force with respect to a
Participant upon the occurrence of a Change in Control, the
entire balance of the Participant's Deferral Accounts shall be
paid to him or her as soon as possible following the
occurrence of the Change in Control.
ARTICLE 5
BENEFICIARY DESIGNATION
5.1 BENEFICIARY. Each Participant shall have the right, at any
time, to designate his or her Beneficiary(ies) (both primary
as well as contingent) to receive any benefits payable under
the Plan to a beneficiary upon the death of a Participant. The
Beneficiary designated under this Plan may be the same as or
different from the Beneficiary designation under any other
plan of a Participating Employer in which the Participant
participates.
5.2 BENEFICIARY DESIGNATION; CHANGE. A Participant shall designate
his or her Beneficiary by completing and signing the
Beneficiary Designation Form, and returning it to the
Committee or its designated agent. A Participant shall have
the right to change a Beneficiary by completing, signing and
otherwise complying with the terms of the Beneficiary
Designation Form and the Committee's rules and procedures, as
in effect from time to time. Upon the acceptance by the
Committee of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be canceled.
The Committee shall be entitled to rely on the last
Beneficiary Designation Form filed by the Participant and
accepted by the Committee prior to his or her death.
5.3 ACKNOWLEDGMENT. No designation or change in designation of a
Beneficiary shall be effective until received in writing and
acknowledged in writing by the Committee or its designated
agent.
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5.4 NO BENEFICIARY DESIGNATION. If a Participant fails to
designate a Beneficiary as provided in this Article 5, or if
all designated Beneficiaries predecease the Participant or die
prior to complete distribution of the Participant's benefits,
then the Participant's designated Beneficiary shall be deemed
to be his or her surviving spouse. If the Participant has no
surviving spouse, the benefits remaining under the Plan to be
paid to a Beneficiary shall be payable to the then living
issue of the Participant per stripes and, if there is no such
issue, to the executor or personal representative of the
Participant's estate.
5.5 DOUBT AS TO BENEFICIARY. If the Committee has any doubt as to
the proper Beneficiary to receive payments pursuant to this
Plan, the Committee shall have the right, exercisable in its
discretion, to direct the Company to withhold such payments
until this matter is resolved to the Committee's satisfaction.
5.6 DISCHARGE OF OBLIGATIONS. The payment of benefits under the
Plan to a Beneficiary shall fully and completely discharge the
Company and the Committee from all further obligations under
this Plan with respect to the Participant.
ARTICLE 6
LEAVE OF ABSENCE/DISABILITY
6.1 PAID LEAVE OF ABSENCE. If a Participant is authorized by the
Company for any reason to take a paid leave of absence the
Participant shall continue to be considered employed and the
deferral elections shall continue during such paid leave of
absence.
6.2 UNPAID LEAVE OF ABSENCE. If a Participant is authorized by the
Company for any reason to take an unpaid leave of absence from
the employment of the Employer, the Participant shall continue
to be considered employed and the Participant shall be excused
from making deferrals until the earlier of the date the leave
of absence expires or the Participant returns to a paid
employment status. Upon such expiration or return, deferrals
shall resume for the remaining portion of the Plan Year in
which the expiration or return occurs, based on the deferral
election, if any, made for that Plan Year. If no election was
made for that Plan Year, no deferral shall be withheld.
6.3 DISABILITY. A Participant who is disabled shall be treated in
the same manner as a Participant on an authorized, unpaid
leave of absence until the Participant's employment is
terminated or the Participant returns to active employment.
For purposes of this provision disability is
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determined by the Committee.
ARTICLE 7
TERMINATION, AMENDMENT OR MODIFICATION
7.1 TERMINATION. Although the Company anticipates that it will
continue the Plan for an indefinite period of time, it
reserves the right to terminate the Plan at any time, by
action of its Board or any duly authorized committee thereof.
7.2 AMENDMENT. The Board or the Committee may, at any time, amend
or modify the Plan in whole or in part; provided, however,
that no amendment or modification shall be effective to
decrease or restrict the value of a Participant's Deferral
Accounts in existence at the time the amendment or
modification is made. The amendment or modification of the
Plan shall not affect any Participant or Beneficiary who has
become entitled to the payment of benefits under the Plan as
of the date of the amendment or modification; provided,
however, that the Company shall have the right to accelerate
installment payments by paying the Deferral Accounts in a lump
sum or in fewer installments.
7.3 EFFECT OF PAYMENT. The full payment of the applicable benefit
under the Plan shall completely discharge all obligations to a
Participant and his or her designated Beneficiaries under this
Plan and the Participant shall cease to be a Participant under
this Plan.
ARTICLE 8
ADMINISTRATION
8.1 COMMITTEE DUTIES. This Plan shall be administered by the
Committee. The Committee shall also have the complete
discretion and authority to (i) make, amend, interpret, and
enforce all appropriate rules and regulations for the
administration of this Plan and (ii) decide or resolve any and
all questions including interpretations of this Plan, as may
arise in connection with the Plan. Any individual serving on
the Committee who is a Participant shall not vote or act on
any matter relating solely to himself or herself. When making
a determination or calculation, the Committee shall be
entitled to rely on information furnished by a Participant or
the Company.
8.2 AGENTS. In the administration of this Plan, the Committee may,
from time to time, employ agents and delegate to them such
administrative duties as it sees fit (including acting through
a duly appointed representative) and
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may from time to time consult with counsel who may be counsel
to the Company.
8.3 BINDING EFFECT OF DECISIONS. The decision or action of the
Committee with respect to any question arising out of or in
connection with the administration, interpretation and
application of the Plan and the rules and regulations
promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.
8.4 INDEMNITY OF COMMITTEE. The Company shall indemnify and hold
harmless the members of the Committee, and any employee of the
Company to whom the duties of the Committee may be delegated,
against any and all claims, losses, damages, expenses or
liabilities arising from any action or failure to act with
respect to this Plan, to the full extent permitted by law, if
the individual was acting in the good faith belief that such
action or failure to act was in the best interest of the
Company and consistent with the terms of the Plan.
8.5 EMPLOYER INFORMATION. To enable the Committee to perform its
functions, the Company and every Participating Employer shall
supply full and timely information to the Committee on all
matters relating to the compensation of its Participants and
such other pertinent information as the Committee may
reasonably require.
ARTICLE 9
OTHER BENEFITS AND AGREEMENTS
The benefits provided for a Participant and such Participant's
Beneficiary under the Plan are in addition to any other benefits
available to such Participant under any other plan or program for
employees of the Company. The Plan shall supplement and shall not
supersede, modify or amend any other such plan or program except as may
otherwise be expressly provided.
ARTICLE 10
CLAIMS PROCEDURES
10.1 PRESENTATION OF CLAIM. Any Participant or Beneficiary of a
deceased Participant (such Participant or Beneficiary being
referred to below as a "Claimant") may deliver to the
Committee a written claim for a determination with respect to
the amounts distributable to such Claimant from the Plan. If
such a claim relates to the contents of a notice received by
the Claimant, the claim must be made within 60 days after such
notice was received by the Claimant. All other claims must be
made within
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180 days of the date on which the event that caused the claim
to arise occurred. The claim must state with particularity the
determination desired by the Claimant.
10.2 NOTIFICATION OF DECISION. The Committee shall consider a
Claimant's claim within a reasonable time, and shall notify
the Claimant in writing:
(a) that the Claimant's requested determination has been
made, and that the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary,
in whole or in part, to the Claimant's requested
determination, in which case such notice must also be
set forth in a manner calculated to be understood by
the Claimant:
1. the specific reason(s) for the denial of the
claim, or any part thereof;
2. specific reference(s) to pertinent
provisions of the Plan upon which such
denial was based;
3. a description of any additional material or
information necessary for the Claimant to
perfect the claim, and an explanation of why
such material or information is necessary;
and
4. an explanation of the claim review procedure
set forth in Section 10.3 below.
10.3 REVIEW OF A DENIED CLAIM. Within 60 days after receiving a
notice from the Committee that a claim has been denied, in
whole or in part, a Claimant (or the Claimant's duly
authorized representative) may file with the Committee a
written request for a review of the denial of the claim.
Thereafter, but not later than 30 days after the review
procedure began, the Claimant (or the Claimant's duly
authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents;
and/or
(c) may request a hearing, which the Committee, in its
sole discretion, may grant.
10.4 DECISION ON REVIEW. The Committee shall render its decision on
review promptly, and not later than 60 days after the filing
of a written request for review of the denial, unless a
hearing is held or other special
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<PAGE> 15
circumstances require additional time, in which case the
Committee's decision must be rendered within 120 days after
such date. Such decision must be written in a manner
calculated to be understood by the Claimant, and it must
contain:
A. specific reasons for the decision;
B. specific reference(s) to the pertinent Plan
provisions upon which the decision was based; and
C. such other matters as the Committee deems relevant.
10.5 LEGAL ACTION. A Claimant's compliance with the foregoing
provisions of this Article 10 is a mandatory prerequisite to a
Claimant's right to commence any legal action with respect to
any claim for benefits under this Plan.
ARTICLE 11
TRUST
11.1 ESTABLISHMENT OF THE TRUST. The Company and each Participating
Employer shall establish one or more trusts pursuant to one or
more trust agreements between the Company and each
Participating Employer and the trustee named therein, as
amended from time to time (the "Trust"), and the Company shall
at least annually transfer over to the Trust such assets as
the Company and each Participating Employer determines, in its
sole discretion, are necessary to provide for its liabilities
under the Plan.
11.2 INTERRELATIONSHIP OF THE PLAN AND THE TRUST. The provisions of
the Plan shall govern the rights of a Participant to receive
distributions pursuant to the Plan. The provisions of the
Trust shall govern the rights of the Company, each
Participating Employer, Participants and the creditors of the
Company to the assets transferred to the Trust. The Company
and each Participating Employer shall at all times remain
liable to carry out its obligations under the Plan.
11.3 DISTRIBUTIONS FROM THE TRUST. The obligations of the Company
and each Participating Employer under the Plan may be
satisfied with Trust assets distributed pursuant to the terms
of the Trust, and any such distribution shall reduce their
obligations under this Plan.
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<PAGE> 16
ARTICLE 12
MISCELLANEOUS
12.1 STATUS OF PLAN. The Plan is intended to be a plan that is not
qualified within the meaning of Code Section 401(a) and that
"is unfunded and is maintained by an employer primarily for
the purpose of providing deferred compensation for a select
group of management or highly compensated employees" within
the meaning of ERISA Sections 201(2), 301(a)(3) and 401(a)(1).
The Plan shall be administered and interpreted to the extent
possible in a manner consistent with that intent.
12.2 UNSECURED GENERAL CREDITOR. Participants and their
Beneficiaries, heirs, successors and assigns shall have no
legal or equitable rights, interests or claims in any property
or assets of the Company or any Participating Employer. For
purposes of the payment of benefits under this Plan, any and
all of the assets of the Company and any Participating
Employer shall be, and remain, the general, unpledged
unrestricted assets of the Company and any Bankruptcy
Employer. Their obligation under the Plan shall be merely that
of an unfunded and unsecured promise to pay money in the
future.
12.3 NONASSIGNABILITY. Neither a Participant nor any other person
shall have any right to commute, sell, assign, transfer,
pledge, anticipate, mortgage or otherwise encumber, transfer,
hypothecate, alienate or convey in advance of actual receipt,
the amounts, if any, payable hereunder, or any part thereof,
which are, and all rights to which are expressly declared to
be, unassignable and non-transferable. No part of the amounts
payable shall, prior to actual payment, be subject to seizure,
attachment, garnishment or sequestration for the payment of
any debts, judgments, alimony or separate maintenance owed by
a Participant or any other person, be transferable by
operation of law in the event of a Participant's or any other
person's bankruptcy or insolvency or be transferable to a
spouse as a result of a property settlement or otherwise.
12.4 NOT A CONTRACT OF EMPLOYMENT. The terms and conditions of this
Plan shall not be deemed to constitute a contract of
employment between the Company or any Participating Employer
and the Participant. Such employment is hereby acknowledged to
be an "at will" employment relationship that can be terminated
at any time for any reason, or no reason, with or without
cause, and with or without notice, unless otherwise expressly
provided in a written employment agreement. Nothing in this
Plan shall be deemed to give a Participant the right to be
retained in the service of the Company or any Participating
Employer or to interfere with the right of the Company or any
Participating Employer
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<PAGE> 17
to discipline or discharge the Participant at any time.
12.5 FURNISHING INFORMATION. A Participant or his or her
Beneficiary will cooperate with the Committee by furnishing
any and all information requested by the Committee and take
such other actions as may be requested in order to facilitate
the administration of the Plan and the payments of benefits
hereunder, including but not limited to taking such physical
examinations as the Committee may deem necessary.
12.6 TERMS. Whenever any words are used herein in the masculine,
they shall be construed as though they were in the feminine in
all cases where they would so apply; and whenever any words
are used herein in the singular or in the plural, they shall
be construed as though they were used in the plural or the
singular, as the case may be, in all cases where they would so
apply.
12.7 CAPTIONS. The captions of the articles, sections and
paragraphs of this Plan are for convenience only and shall not
control or affect the meaning or construction of any of its
provisions.
12.8 GOVERNING LAW. Subject to ERISA, the provisions of this Plan
shall be construed and interpreted according to the internal
laws of the Commonwealth of Massachusetts without regard to
its conflicts of laws principles.
12.9 NOTICE. Any notice or filing required or permitted to be given
to the Committee under this Plan shall be sufficient if in
writing and hand-delivered, or sent by registered or certified
mail, to the address below:
Compensation and Stock Option Committee
c/o General Counsel
PerkinElmer, Inc.
45 William Street
Wellesley, MA 02181-4078
Such notice shall be deemed given as of the date of delivery
or, if delivery is made by mail, as of the date shown on the
postmark on the receipt for registration or certification.
Any notice or filing required or permitted to be given to a
Participant under this Plan shall be sufficient if in writing
and hand-delivered, or sent by mail, to the last known address
of the Participant.
12.10 SUCCESSORS. The provisions of this Plan shall bind and inure
to the benefit of the Company or any Participating Employer
and their successors and assigns and the Participant and the
Participant's designated Beneficiaries.
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<PAGE> 18
12.11 VALIDITY. In case any provision of this Plan shall be illegal
or invalid for any reason, said illegality or invalidity shall
not affect the remaining parts hereof, but this Plan shall be
construed and enforced as if such illegal or invalid provision
had never been inserted herein.
12.12 INCOMPETENT. If the Committee determines in its discretion
that a benefit under this Plan is to be paid to a minor, a
person declared incompetent or to a person the Committee
determines in good faith to be incapable of handling the
disposition of that person's property, the Committee may
direct payment of such benefit to the guardian, legal
representative or person having the care and custody of such
minor, incompetent or incapable person. The Committee may
require proof of minority, incompetence, incapacity or
guardianship, as it may deem appropriate prior to distribution
of the benefit. Any payment of a benefit shall be a payment
for the account of the Participant and the Participant's
Beneficiary, as the case may be, and shall be a complete
discharge of any liability under the Plan for such payment
amount.
12.13 DISTRIBUTION IN THE EVENT OF TAXATION.
(a) IN GENERAL. If, for any reason, all or any portion of
a Participant's benefits under this Plan becomes
taxable to the Participant prior to Change in Control
of the Company or any Participating Employer as
defined in the Trust (a "Change in Control"), or the
trustee of the Trust after a Change in Control, for a
distribution of that portion of his or her benefit
that has become taxable. Upon the grant of such a
petition, which grant shall not be unreasonably
withheld (and, after receipt, a Participant may
petition the Committee before a Change in Control,
shall be granted), the Company or Trustee shall
distribute to the Participant immediately available
funds in an amount equal to the taxable portion of
his or her benefit (which amount shall not exceed a
Participant's unpaid Deferral Accounts under the
Plan)(the "Tax Liability Distribution"). If the
petition is granted, the Tax Liability Distribution
shall be made within 90 days of the date when the
Participant's petition is granted. Such Tax Liability
Distribution shall affect and reduce the benefits to
be paid under this Plan.
(b) TRUST. If the Trust terminates and benefits are
distributed from the Trust to a Participant, the
Participant's benefits under this Plan shall be
reduced to the extent of such distributions.
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<PAGE> 19
IN WITNESS WHEREOF, the Company has signed this Plan document as of
this 20th day of October, 1999.
PerkinElmer, Inc.
By: /s/ Terry L. Carlson
---------------------------------
Title: Senior Vice President and General
Counsel
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<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
January 25,2000 included in PerkinElmer, Inc.'s Annual Report on Form 10K for
the year ended January 2, 2000, and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
---------------------------
Arthur Andersen LLP
Boston, Massachusetts
April 5, 2000
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
registration statement on Form S-8 of PerkinElmer, Inc., of our report dated
September 30, 1998, relating to the combined financial statements of the
Analytical Instruments Division of the Perkin-Elmer Corporation, which appears
in the Current Report on Form 8-K/A of PerkinElmer, Inc., dated August 11, 1999.
/s/ PricewaterhouseCoopers LLP
-------------------------------
PricewaterhouseCoopers LLP
Stamford, Connecticut
April 7, 2000
