Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE PERKIN-ELMER CORPORATION
(Exact name of registrant as specified in its charter)
New York 06-0490270
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
761 MAIN AVENUE
NORWALK, CONNECTICUT 06859-0001
(Address of Principal Executive Offices, including Zip Code)
THE PERKIN-ELMER CORPORATION
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
WILLIAM B. SAWCH
Vice President, General Counsel and Secretary
THE PERKIN-ELMER CORPORATION
761 Main Avenue
Norwalk, Connecticut 06859-0001
(203) 762-1000
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Securities to Maximum Maximum Amount of
be Registered Amount Offering Aggregate Registration
to be Price Per Offering Fee
Registered Share (1) Price (1)
Common Stock, $1.00 Par 600,000 $53.75 $32,250,000 $9,772.73
Value (2)
1. Pursuant to Rule 457(h)(1) and Rule 457(c), the proposed
maximum offering price per share and the registration fee are
based upon the reported average of the high and low prices for
the common stock of the Registrant (the "Common Stock") on the
New York Stock Exchange on October 29, 1996. The maximum
offering price per share is estimated solely for purposes of
calculating the registration fee.
2. This Registration Statement also pertains to rights to
purchase Participating Preferred Stock of the Registrant (the
"Rights"). Until the occurrence of certain prescribed events,
the Rights are not exercisable, are evidenced by the
certificates for Common Stock, and will be transferred along
with and only with such securities. Thereafter, separate
Rights certificates will be issued representing one Right for
each share of Common Stock held, subject to adjustment
pursuant to anti-dilution provisions.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Item 2. Registrant Information and Employee Plan Annual
Information.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by The Perkin-Elmer
Corporation (the "Company") with the Securities and Exchange
Commission (the "Commission") are incorporated in this
Registration Statement by reference:
(1) The Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1996.
(2) The description of the Company's Common Stock
contained in the Company's Registration Statement on Form 10-
12B/A dated October 27, 1993, including any amendment or report
filed for the purpose of updating such description.
All documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the
filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to
be a part hereof from their respective dates of filing (such
documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); provided, however, that
the documents enumerated above or subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
1934 Act in each year during which the offering made by this
Registration Statement is in effect prior to the filing with the
Commission of the Company's Annual Report on Form 10-K covering
such year shall not be Incorporated Documents or be incorporated
by reference in this Registration Statement or be a part hereof
from and after the filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document 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 Incorporated Document
modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration
Statement.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Legal matters in connection with the shares of Common Stock
subject to issuance pursuant to The Perkin-Elmer Corporation 1996
Employee Stock Purchase Plan have been passed upon by William B.
Sawch, Vice President, General Counsel and Secretary of the Company.
Mr. Sawch owns Common Stock of the Company and options to
purchase Common Stock of the Company with an aggregate value in
excess of $50,000.
Item 6. Indemnification of Directors and Officers.
Article Twelfth of the Restated Certificate of Incorporation
of the Company states:
TWELFTH: No director of the Corporation shall be
personally liable to the Corporation or its
shareholders for damages for any breach of duty as a
director unless the elimination or limitation of
liability is expressly prohibited by the New York
Business Corporation Law as currently in effect or as
it may be amended. No amendment, modification, or
repeal of this Article shall adversely affect any right
or protection of any director that exists at the time
of such change.
Article 52 of the By-laws of the Company, as amended and
restated, states:
Indemnification. Except to the extent expressly
prohibited by the New York Business Corporation Law,
the Corporation shall indemnify each person made or
threatened to be made a party to, or called as a
witness or asked to submit information in, any action
or proceeding by reason of the fact that such person or
such person's testator or intestate is or was a
director or officer of the Corporation, or serves or
served at the request of the Corporation any other
corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any
capacity, against judgments, fines, penalties, amounts
paid in settlement and reasonable expenses, including
attorneys' fees incurred in connection with such action
or proceeding, or any appeal therein, provided that no
such indemnification shall be made if a judgment or
other final adjudication adverse to such person
establishes that his or her acts were committed in bad
faith or were the result of active and deliberate
dishonesty and were material to the cause of action so
adjudicated, or that he or she personally gained in
fact a financial profit or other advantage to which he
or she was not legally entitled, and provided further
that no such indemnification shall be required with
respect to any settlement or other nonadjudicated
disposition of any threatened or pending action or proceeding
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unless the Corporation has given its prior
consent to such settlement or other disposition. In
this by-law, reference to an action or proceeding
includes, without limitation, any pending or threatened
action, proceeding, hearing or investigation, whether
civil or criminal, whether judicial, administrative or
legislative in nature and whether or not in the nature
of a direct or a shareholders' derivative action
brought by or on behalf of the Corporation or any other
corporation or enterprise which the director or officer
of the corporation serves at the Corporation's request.
The Corporation shall advance or promptly
reimburse upon request any person entitled to
indemnification hereunder for all expenses, including
attorneys' fees, reasonably incurred in defending any
action or proceeding in advance of the final
disposition thereof upon receipt of an undertaking by
or on behalf of such person to repay such amount if
such person is ultimately found not to be entitled to
indemnification or, where indemnification is granted,
to the extent the expenses so advanced or reimbursed
exceed the amount to which such person is entitled,
provided, however, that such person shall cooperate in
good faith with any request by the Corporation that
common counsel be utilized by the parties to an action
or proceeding who are similarly situated unless to do
so would be inappropriate due to actual or potential
differing interests between or among such parties.
The Corporation shall also promptly pay or
reimburse such person for all expenses, including fees
and expenses of counsel, reasonably incurred by such
person in successfully enforcing his or her rights
pursuant to this by-law.
Nothing herein shall limit or affect any right of
any person otherwise than hereunder to indemnification
or expenses, including attorneys' fees, under any
statute, rule, regulation certificate of incorporation,
by-law, insurance policy, contract or otherwise.
Anything in these by-laws to the contrary
notwithstanding, no elimination of this by-law, and no
amendment of this by-law adversely affecting the right
of any person to indemnification or advancement of
expenses hereunder shall be effective until the 60th
day following notice to such person of such action, and
no elimination of or amendment to this by-law shall
deprive any person of his or her rights hereunder
arising out of alleged or actual occurrences, acts or
failures to act prior to such 60th day.
The Corporation shall not, except by elimination
or amendment of this by-law in a manner consistent with
the preceding paragraph, take any corporate action or
enter into any agreement which prohibits, or otherwise
limits the rights of any person to, indemnification in
accordance with the provisions of this by-law. The
indemnification of any person provided by this by-law
shall continue after such person has ceased to be a
director or officer of the Corporation and shall inure
to the benefit of such person's heirs, executors,
administrators and legal representatives.
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The Corporation is authorized to enter into
agreements with any of its directors or officers
extending rights to indemnification and advancement of
expenses to such person to the fullest extent permitted
by applicable law, but the failure to enter into any
such agreement shall not affect or limit the rights of
such person pursuant to this by-law, it being expressly
recognized hereby that all directors and officers of
the Corporation, by serving as such after the adoption
hereof, are acting in reliance hereon and that the
Corporation is estopped to contend otherwise.
In case any provision in this by-law shall be
determined at any time to be unenforceable in any
respect, the other provisions shall not in any way be
affected or impaired thereby, and the affected
provision shall be given the fullest possible
enforcement in the circumstances, it being the
intention of the Corporation to afford indemnification
and advancement of expenses to its directors and
officers, acting in such capacities or in the other
capacities mentioned herein, to the fullest extent
permitted by law.
For purposes of this by-law, the Corporation shall
be deemed to have requested a person to serve an
employee benefit plan where the performance by such
person of his or her duties to the Corporation also
imposes duties on, or otherwise involves services by,
such person to the plan or participants or
beneficiaries of the plan, and excise taxes assessed on
a person with respect to an employee benefit plan
pursuant to applicable law shall be considered
indemnifiable expenses. For purposes of this by-law,
the term "Corporation" shall include any legal
successor to the Corporation, including any corporation
which acquires all or substantially all of the assets
of the Corporation in one or more transactions.
A person who has been successful, on the merits or
otherwise, in the defense of a civil or criminal action
or proceeding of the character described in the first
paragraph of this by-law shall be entitled to
indemnification as authorized in such paragraph.
Except as provided in the preceding sentence and unless
ordered by a court, any indemnification under this by-
law shall be made by the Corporation if, and only if,
authorized in the specific case:
(1) By the Board of Directors acting by a quorum
consisting of directors who are not parties to
such action or proceeding upon a finding that the
director, officer or employee has met the standard
of conduct set forth in the first paragraph of
this by-law, or
(2) If such a quorum is not obtainable or, even if
obtainable, a quorum of disinterested directors so
directs:
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(a) By the Board of Directors upon the opinion in
writing of independent legal counsel that
indemnification is proper in the
circumstances because the standard of conduct
set forth in the first paragraph of this by-
law, has been met by such director, officer
or employee, or
(b) By the shareholders upon a finding that the
director, officer or employee has met the
applicable standard of conduct set forth in
such paragraph.
If any action with respect to indemnification of
directors and officers is taken by way of amendment of
these by-laws, resolution of directors, or by
agreement, the Corporation shall, not later than the
next annual meeting of shareholders, unless such
meeting is held within three months from the date of
such action and, in any event, within fifteen months
from the date of such action, mail to its shareholders
of record at the time entitled to vote for the election
of directors a statement specifying the action taken.
Sections 721 through 726 of the Business Corporation Law of
the State of New York permit indemnification of directors and
officers pursuant to such By-law provision. The statute further
permits the Company to insure itself for such indemnification.
The Company maintains liability and indemnification
insurance policies covering all officers and directors of the
Company.
Item 7. Exemption from Registration Claimed.
Not applicable
.
Item 8. Exhibits.
Exhibit 4(1) - Three Year Credit Agreement
dated June 1, 1994 among Morgan Guaranty
Trust Company, certain banks named in
such Agreement, and the Corporation, as
amended July 20, 1995 (Incorporated by
reference to Exhibit 4(1) to the
Company's Annual Report on Form 10-K for
the fiscal year ended June 30, 1995
(Commission file number 1-4389)).
Exhibit 4(2) - Shareholder Protection Rights
Agreement dated April 30, 1989 between
the Company and The First National Bank
of Boston (Incorporated by reference to
Exhibit 4 to the Company's Current
Report on Form 8-K dated April 20, 1989
(Commission file number 1-4389)).
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Exhibit 5 - Opinion of William B. Sawch,
Esq. (including Consent).
Exhibit 23(1) - Consent of Price Waterhouse.
Exhibit 23(2) - Consent of William B. Sawch, Esq.
(included in Exhibit 5).
Exhibit 24 - Power of Attorney (contained
on the signature pages hereof).
Exhibit 99 - The Perkin-Elmer Corporation
1996 Employee Stock Purchase Plan.
Item 9. Undertakings.
(a) The Company 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 of 1933 (the "1933 Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the
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 a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8
or Form F-3 and 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 Company
pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference in the registration statement;
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(2) That, for the purpose of determining any liability
under the 1933 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; and
(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.
(b) The Company hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section
15(d) of the 1934 Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d)
of the 1934 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.
(c) Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 1933 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company 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 City
of Norwalk, State of Connecticut, on October 30 , 1996.
THE PERKIN-ELMER CORPORATION
By:/s/ William B. Sawch
William B. Sawch
Vice President, General
Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Stephen
O. Jaeger and William B. Sawch, and each of them, his true and
lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all
amendments (including, without limitation, post-effective
amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents of any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Tony L.White Chairman of the Board, October 30, 1996
Tony L. White President and Chief
Executive Officer
(Principal Executive Officer)
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Stephen O. Jaeger Vice President, October 30, 1996
Stephen O. Jaeger Chief Financial Officer
and Treasurer (Principal
Financial Officer)
/s/ John B. McBennett Corporate Controller October 30, 1996
John B. McBennett (Principal Accounting
Officer)
/s/ Joseph F. Abely,Jr. Director October 30, 1996
Joseph F. Abely, Jr.
/s/ Richard H. Ayers Director October 30, 1996
Richard H. Ayers
/s/ Jean-Luc Belingard Director October 30, 1996
Jean-Luc Belingard
/s/ Robert H. Hayes Director October 30, 1996
Robert H. Hayes
/s/ Donald R. Melville Director October 30, 1996
Donald R. Melville
/s/ Burnell R. Roberts Director October 30, 1996
Burnell R. Roberts
/s/ Georges C. St. Laurent, Jr. Director October 30, 1996
Georges C. St. Laurent, Jr.
/s/ Carolyn W. Slayman Director October 30, 1996
Carolyn W. Slayman
/s/ Orin R. Smith Director October 30, 1996
Orin R. Smith
/s/ Richard F. Tucker Director October 30, 1996
Richard F. Tucker
</TABLE>
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EXHIBIT INDEX
Exhibit No. Exhibit
5 Opinion of William B. Sawch, Esq.
23(1) Consent of Price Waterhouse
99 The Perkin-Elmer Corporation 1996
Employee Stock Purchase Plan
October 30, 1996
The Perkin-Elmer Corporation
761 Main Avenue
Norwalk, CT 06859-0001
Ladies and Gentlemen:
This opinion is being rendered in connection with the
preparation and filing by The Perkin-Elmer Corporation (the
"Company") of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933,
as amended (the "Securities Act"), with respect to the
proposed sale of up to 600,000 shares (the "Shares") of the
common stock, par value $1.00 per share (the "Common
Stock"), of the Company pursuant to The Perkin-Elmer
Corporation 1996 Employee Stock Purchase Plan (the "Plan").
For purposes of the opinion expressed herein, I, or
attorneys under my supervision, have conducted such
investigations of law and fact as I have deemed necessary or
appropriate.
Based upon the foregoing, I am of the opinion that,
assuming that there shall have been compliance with the
applicable provisions of the Securities Act and of state
securities or "blue sky" laws and that the consideration
received for the Shares is not less than the par value
thereof, upon the issuance and delivery of the Shares in
accordance with the terms of the Plan, the Shares will be
validly issued, fully paid and non-assessable.
Please note that if at any time in the future the
Common Stock is not listed on a national securities exchange
or regularly quoted in an over-the-counter market by one or
more members of a national or an affiliated securities
association, then, pursuant to Section 630 of the New York
Business Corporation Law, the ten largest shareholders of
the Company will be jointly and severally liable for all
debts, wages or salaries due and owing to any of the
Company's laborers, servants or employees, other than
contractors, for services performed by such persons for the
Company.
No opinion is expressed with respect to the laws of any
jurisdiction other that the United States of America and the
State of New York.
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I hereby consent to the use of this opinion as an
Exhibit to the Registration Statement and to the reference
to me in Item 5 of the Registration Statement, and any
amendments thereto filed in connection with the Plan.
Very truly yours,
/s/ William B. Sawch
William B. Sawch
Vice President, General
Counsel and Secretary
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in
this Registration Statement on Form S-8 of our report dated
July 24, 1996, which appears on page 48 of the 1996 Annual
Report to Shareholders of The Perkin-Elmer Corporation, which
is incorporated by reference in The Perkin-Elmer
Corporation's Annual Report on Form 10-K for the year ended
June 30, 1996. We also consent to the incorporation by
reference of our report on the Financial Statement Schedule,
which appears on page 18 of such Annual Report on Form 10-K.
Price Waterhouse LLP
Stamford, CT
October 30, 1996
THE PERKIN-ELMER CORPORATION
1996 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose of the Plan.
The purpose of The Perkin-Elmer Corporation 1996
Employee Stock Purchase Plan (the "Plan") is to provide an
incentive for Eligible Employees to continue to devote their
best efforts to the success of the Corporation, and to
afford such employees an opportunity to obtain a proprietary
interest in the continued growth and prosperity of the
Corporation through ownership of its Common Stock acquired
in a convenient fashion.
2. Definitions.
As used herein, the following terms have the meanings
hereinafter set forth unless the context clearly indicates
to the contrary:
2.1 "Act" means the Securities Exchange Act of 1934,
as amended from time to time.
2.2 "Board of Directors" means the Board of Directors
of the Corporation.
2.3 "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
2.4 "Committee" means the Management Resources
Committee of the Board of Directors, or any successor
thereto or committee designated thereby.
2.5 "Common Stock" means the common stock, par value
$1.00 per share, of the Corporation.
2.6 "Compensation" means the rate of salary in effect
for an Eligible Employee on a Date of Offering. For
employees paid a salary plus sales commission,
"Compensation" means the rate of salary in effect on a Date
of Offering plus an estimate, determined by the Corporation,
of the sales commission for the ensuing year.
2.7 "Corporation" means The Perkin-Elmer Corporation
and such of its Subsidiaries existing as of the effective
date of the Plan or thereafter acquired as may be designated
from time to time by the Board of Directors.
2.8 "Date of Offering" means the date within the first
fifteen (15) days of January of each year of the Plan as
specified by the Committee for any offering made under the
Plan.
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2.9 "Eligible Employee" means any person who is an
employee of the Corporation on a Date of Offering during the
term of the Plan. Directors of the Corporation who are not
officers and any employee who, immediately after the grant
of an option hereunder, would own (within the meaning of
Section 424(d) of the Code) Common Stock (including stock
which such employee may purchase under outstanding options)
possessing 5% or more of the total combined voting power or
value of all classes of the capital stock of the Corporation
or of a Subsidiary, shall be ineligible to participate in
the Plan.
2.10 "Fair Market Value" means the simple average of
the high and low sales prices of a share of Common Stock as
reported in the report of composite transactions (or other
source designated by the Committee) on the date on which
fair market value is to be determined (or if there shall be
no trading on such date, then on the first previous date on
which sales were made on a national securities exchange).
2.11 "Offering Price" means the lower of (a) 85% of
the Fair Market Value of a share of Common Stock on the
applicable Date of Offering, and (b) 85% of the Fair Market
Value of a share of Common Stock on the last day of the
applicable Purchase Period.
2.12 "Participating Employee" means an Eligible
Employee who has accepted all or any part of an option to
purchase shares of Common Stock under an offering pursuant
to Section 7 hereof.
2.13 "Purchase Period" means, as to any offering under
the Plan, a period of one (1) year commencing on the Date of
Offering.
2.14 "Subsidiary" means any corporation in respect of
which the Corporation owns, directly or indirectly, more
than 50% of the total combined voting power of all classes
of stock issued by such corporation.
3. Shares Reserved for the Plan.
The aggregate number of shares of Common Stock
available for issuance under the Plan is Six Hundred
Thousand (600,000), subject to adjustment in accordance with
Section 16 hereof. Shares of Common Stock issued under the
Plan shall be authorized but unissued shares. In lieu of
such unissued shares, the Corporation may, in its
discretion, deliver treasury shares, reacquired shares, or
shares acquired in the market for purposes of the Plan.
If any option granted under the Plan shall for any
reason terminate, be canceled, or expire without having been
exercised, shares of Common Stock not issued under such
option shall be available again for issuance under the Plan.
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4. Administration of the Plan.
The Committee shall have plenary authority in its
discretion, but subject to the express provisions of the
Plan, to administer the Plan. The Committee shall also have
plenary authority in its discretion to interpret the Plan,
to prescribe, amend, and rescind rules and regulations
relating to it, and to make any and all other determinations
and take any and all actions deemed necessary or advisable
for the administration of the Plan. The Committee's
determination on the foregoing matters shall be conclusive
and binding on all persons having an interest in the Plan.
5. Offerings.
Subject to the terms and conditions of the Plan, the
Corporation may make an annual offering to Eligible
Employees to purchase shares of Common Stock under the Plan
during each of the three calendar years commencing January
1, 1997. The terms and conditions of each such offering
shall be determined by the Committee and shall include the
Date of Offering and the aggregate number of shares of
Common Stock that may be purchased in such offering.
6. Amount of Common Stock Each Eligible Employee May
Purchase.
6.1 Amount of Purchase. Subject to the terms of the
Plan, and as to each offering made hereunder, each Eligible
Employee shall be offered an option to purchase that number
of whole shares of Common Stock equal to (a) the total
amount accumulated in such Eligible Employee's account
established pursuant to Section 8 hereof with respect to
such offering as of the last day of the applicable Purchase
Period divided by (b) the Offering Price.
6.2 Limitations on Purchases. No Eligible Employee
shall be granted an option to purchase shares of Common
Stock under all employee stock purchase plans (to which
Section 423 of the Code is applicable) of the Corporation
and its subsidiaries at a rate which exceeds $25,000 of the
Fair Market Value of the Common Stock (determined as of the
date of grant of such option) for each calendar year during
which any option granted to such individual under any such
plan is outstanding at any time.
7. Method of Participation.
7.1 Notice of Offering. The Committee shall give
notice to each Eligible Employee of each offering under the
Plan and the terms and conditions of such offering.
7.2 Election by Eligible Employees. Each Eligible
Employee who desires to accept all or any part of the option
to purchase shares of Common Stock under an offering
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shall signify his or her election to do so in the form and manner
prescribed by the Committee. Each such Eligible Employee
shall also authorize the Corporation to make payroll
deductions in accordance with Section 8 hereof to cover the
aggregate purchase price of those shares in respect of which
he or she has elected to accept an option. Such election
and authorization shall continue in effect unless and until
such Eligible Employee withdraws from the Plan or terminates
employment with the Corporation, as hereinafter provided.
8. Payroll Deductions.
8.1 Payroll Deductions. Subject to the provisions of
Section 8.2, each Participating Employee shall authorize the
Corporation, in the form and manner prescribed by the
Committee, to make payroll deductions equal to any whole
percentage of such Eligible Employee's Compensation up to a
maximum of 10% to cover the aggregate purchase price of
those shares in respect of which he or she has elected to
accept an option. Payroll deductions shall be deducted from
such Participating Employee's compensation through weekly or
bi-weekly payroll deductions, as applicable, in
substantially equal installments and shall commence as soon
as practicable following the applicable Date of Offering and
shall continue for a period of one (1) year thereafter. A
separate bookkeeping account shall be maintained by the
Corporation for each Participating Employee, and the amount
of each Participating Employee's payroll deductions shall be
credited to such account.
8.2 Adjustments to Payroll Deductions. In the event
that the payroll deductions authorized by a Participating
Employee pursuant to Section 8.1 would, as of the Date of
Offering, result in the purchase of a fractional share
(assuming an Offering Price equal to 85% of the Fair Market
Value of a share of Common Stock on such Date of Offering),
such payroll deductions shall be increased such that the
number of shares which would be purchased by such payroll
deductions as of the Date of Offering would be increased to
the next whole number. In the event that such payroll
deductions when combined with the payroll deductions of all
other Participating Employees would, as of the Date of
Offering, result in the purchase of an aggregate number of
shares in excess of the number of shares of Common Stock
specified by the Committee for such offering (assuming an
Offering Price equal to 85% of the Fair Market Value of a
share of Common Stock on such Date of Offering), such
payroll deductions shall be decreased such that the number
of shares which would be purchased by such payroll
deductions as of the Date of Offering would not exceed such
Participating Employee's pro rata share of the total numberof
shares specified for such offering (determined in a
manner consistent with Section 9.2).
8.3 Conflicts with Law. If any law, rule, or
regulation applicable to any Eligible Employee prohibits the
use of payroll deductions for purposes of the Plan, or if
such deductions impair or hinder the operation of the Plan,
an alternative method of payment approved by the Committee
may be substituted for such Eligible Employee.
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9. Exercise of Option and Purchase of Shares.
9.1 Exercise of Option. Unless a Participating
Employee has subsequently withdrawn from the offering
pursuant to Section 12 hereof, such Participating Employee's
option shall be deemed to have been automatically exercised
as of the last day of the applicable Purchase Period and
become on such date an irrevocable obligation to purchase
shares of Common Stock in accordance with the provisions of
the Plan. The number of whole shares of Common Stock so
purchased by each such Participating Employee shall be
determined by dividing (a) the amount accumulated in such
Participating Employee's account by payroll deductions with
respect to the offering by (b) the Offering Price, rounded
down to a whole number of shares. Any amount remaining in
the account of a Participating Employee shall be refunded in
cash to such Participating Employee, without interest.
9.2 Oversubscription. In the event that, with respect
to any offering hereunder, Participating Employees become
entitled to purchase more shares of Common Stock than the
number of shares of Common Stock specified by the Committee
for such offering, the Committee shall apportion the
aggregate shares of Common Stock available for purchase
under the offering among Participating Employees on a pro
rata basis in accordance with the number of shares of Common
Stock actually subscribed for by each such Participating
Employee, and any amount remaining in the accounts of
Participating Employees shall be refunded in cash, without
interest.
10. Issuance of Certificates.
As soon as practicable following the exercise of
options by Participating Employees pursuant to Section 9
hereof, the Corporation shall issue certificates to each
such Participating Employee for the number of whole shares
of Common Stock purchased by such Participating Employee.
11. Rights as a Shareholder.
No Participating Employee shall be entitled to any
rights or privileges of a shareholder of the Corporation,
including the right to receive any dividends which may be
declared on shares of Common Stock, until such time as the
full purchase price of such Participating Employee's shares
has been paid and shares have been issued to such
Participating Employee.
12. Withdrawals.
12.1 Right to Withdrawal. At any time prior to the
end of the Purchase Period with respect to any offering, a
Participating Employee may, by filing an appropriate notice
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with the Committee, direct the Corporation to (a) make no
further deductions from his or her Compensation with respect
to such offering, or (b) cancel his or her entire option
under such offering. Such notice shall be irrevocable. As
soon as practicable following receipt of such notice, the
Corporation shall cease all payroll deductions with respect
to such offering by such Participating Employee. If the
employee has directed that payroll deductions be
discontinued, any sums theretofore deducted in respect of
the offering shall, subject to the provisions of Section 13
hereof, be retained by the Corporation until the end of the
applicable Purchase Period, at which time there shall be
issued to the employee that number of whole shares which can
be purchased with the sum deducted, and any remaining
balance of the sum shall be paid to such employee in cash,
without interest. If the employee has directed that his or
her option be canceled, the Corporation shall, as soon as
practicable following receipt of such notice, refund in
cash, without interest, all amounts credited to the account
of such employee with respect to the applicable offering.
12.2 Waiver of Withdrawal Right. Notwithstanding the
provisions of Section 12.1 above, a Participating Employee
may, at any time prior to the expiration of any Purchase
Period, irrevocably elect to waive both the right to direct
the Corporation to make no further deductions from such
Participating Employee's Compensation with respect to any
option granted hereunder and the right to cancel the entire
option, which election shall be made by the filing of an
appropriate notice to such effect with the Committee. Upon
the filing of such a notice, such Participating Employee
shall be irrevocably obligated to purchase all of the shares
of Common Stock covered by the option to which such notice
relates.
13. Termination of Employment.
13.1 Death, Disability, or Retirement. In the event
that the employment of a Participating Employee is
terminated within three (3) months prior to the end of a
Purchase Period because of total and permanent disability or
retirement, or at any time within a Purchase Period because
of death, such Participating Employee or his or her legal
representative, as applicable, may either:
(a) cancel his or her entire option with
respect to such offering, in which event the
Corporation shall, as soon as practicable thereafter,
refund in cash, without interest, all amounts
credited to such Participating Employee's account
with respect to such offering; or
(b) elect to receive at the conclusion of the
applicable Purchase Period that number of whole
shares of Common Stock which such Participating
Employee's payroll deductions actually made are
sufficient to purchase, plus the balance of such
payroll deductions, if any, in cash, without
interest.
13.2 Election. The election of a Participating
Employee or his or her legal representative, as applicable,
pursuant to Section 13.1 above, shall be made within three
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(3) months of the event causing the termination of
employment. Notification of the election shall be filed in
the form and manner prescribed by the Committee and, in the
event that no notification has been filed within the
prescribed period, the Corporation shall act in accordance
with Section 13.1(a) above.
13.3 Other Termination of Employment. In the event
that the employment of a Participating Employee is
terminated for any reason other than those specified in
Section 13.1 above, or if such employment is terminated more
than three (3) months prior to the end of a Purchase Period
because of total and permanent disability or retirement, the
Corporation shall, as soon as practicable thereafter, refund
in cash, without interest, all amounts credited to such
Participating Employee's accounts under all applicable
offerings under the Plan.
13.4 Temporary Absence. In the event that the
payroll deductions of a Participating Employee are
temporarily discontinued because of leave of absence,
temporary disability, or other similar reasons, then the
number of shares of Common Stock subject to purchase by such
Participating Employee in any offering shall be
automatically reduced to that number of whole shares which
his or her aggregate payroll deductions actually made within
the Purchase Period are sufficient to purchase. The balance
of such payroll deductions, if any, shall be refunded to the
Participating Employee in cash, without interest.
Notwithstanding the foregoing, such Participating Employee
may make arrangements to pay to the Corporation an amount
equal to the amount which was not subject to payroll
deductions by reason of the temporary discontinuance
thereof, and, in that event, such Participating Employee
shall then be entitled to purchase the total number of
shares of Common Stock for which he or she has accepted an
option.
14. Rights Not Transferable.
A Participating Employee's rights under the Plan are
exercisable, during his or her lifetime, only by such
Participating Employee and may not be sold, pledged,
assigned, or transferred in any manner. Any attempt to
sell, pledge, assign, or transfer such rights shall be void
and unenforceable against the Corporation or any affiliate.
After the death of a Participating Employee, such
Participating Employee's rights may be transferred pursuant
to the laws of descent and distribution.
15. No Right to Continued Employment.
Nothing contained in the Plan shall confer upon any
employee the right to continue in the employ of the
Corporation or any subsidiary or interfere with the right of
the Corporation or such subsidiary to terminate such
employee's employment at any time.
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16. Adjustment Upon Changes in Capitalization.
Notwithstanding any other provision of the Plan, in the
event of changes in the outstanding Common Stock by reason
of stock dividends, stock splits, recapitalizations,
combinations or exchanges of shares, corporate separations
or divisions (including, but not limited to, split-ups,
split-offs, or spin-offs), reorganizations (including, but
not limited to, mergers or consolidations), liquidations, or
other similar events, the aggregate number and class of
shares available under the Plan and the number and class of
shares under option but not yet issued under the Plan shall
be adjusted in such manner as the Committee in its
discretion deems appropriate.
17. Termination and Amendment of the Plan.
The Board of Directors may terminate the Plan at any
time or make such modification or amendment to the Plan as
it shall deem advisable. Upon termination of the Plan,
shares of Common Stock shall be issued to Participating
Employees, and cash, if any, remaining in the accounts of
the Participating Employees shall be refunded to them, as if
the end of the applicable Purchase Period were the date of
termination of the Plan.
18. Governmental Regulations and Listing.
All rights granted or to be granted to Eligible
Employees under the Plan are expressly subject to all
applicable laws and regulations and to the approval of all
governmental authorities required in connection with the
authorization, issuance, sale or transfer of the shares of
Common Stock reserved for the Plan, including, without
limitation, there being a current registration statement of
the Corporation covering the offer of shares of Common Stock
purchasable under the options on the last day of the
Purchase Period applicable to such options, and if a
registration statement shall not then be effective, the term
of such options and the Purchase Period shall be extended
until the first business day after the effective date of
such registration statement, or post-effective amendment
thereto. In addition, all rights are subject to the due
listing of such shares of Common Stock on any securities
exchange on which the Common Stock is then listed.
Notwithstanding any other provision of the Plan, the
Plan is intended to comply with all applicable provisions of
Section 423 of the Code. To the extent that any provision
of the Plan or any action by the Committee under the Plan
fails to so comply, such provision or action shall, without
further action by any person, be deemed automatically
amended to the extent necessary to effect compliance with
Section 423, provided that if such provision or action
cannot be amended to effect such compliance, such provision
or action shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Committee.
Each option granted to an Eligible Employee under the Plan
shall be deemed issued subject to the foregoing
qualification.
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19. Awards in Foreign Countries.
The Committee shall have the authority and discretion
to adopt such modifications, procedures, and subplans as it
shall deem necessary or desirable to comply with the
provisions of the laws of foreign countries in which the
Corporation may operate in order to assure the viability of
the benefits of the options made to individuals employed in
such countries and to meet the objectives of the Plan.
20. Governing Law.
Except where, and to the extent, offers of options
under the Plan to foreign employees are subject to foreign
laws, the Plan shall be construed, regulated, and
administered under the internal laws of the State of
Connecticut.
21. Shareholder Approval.
The Plan shall not become effective unless and until it
has been approved, in the manner prescribed by law, by the
shareholders of the Corporation.
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