Registration No. 333-
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
1997 STOCK INCENTIVE PLAN
(Full Title of the Plan)
WILLIAM B. SAWCH
Senior 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
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to be Price Per Offering Registration
to be Registered Registered Share (1) Price (1) Fee
Common Stock, $1.00
Par Value (2) 2,000,000 $ 67.1563 $134,312,600 $40,700.79
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 23, 1997.
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, 1997.
(2) The Company's Current Report on Form 8-K dated August 23,
1997 and filed on August 26, 1997.
(3) The descriptions of the Company's Common Stock and the
rights to purchase the Company's Participating Preferred Stock, par value
$1.00 per share, contained in the Company's Registration Statements filed
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended,
(the "1934 Act"), including any amendment or report filed for the purpose of
updating such descriptions.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of 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
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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.
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 1997 Stock Incentive Plan
have been passed upon by William B. Sawch, Esq., Senior 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.
The New York Business Corporation Law (the "NYBCL") authorizes a New
York corporation to indemnify any person who is, or is threatened to be made,
a party in any civil or criminal proceeding (other than an action by or in the
right of the corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another entity, against judgments, fines, amounts paid in settlement and
reasonable expenses (including attorneys' fees) actually and necessarily
incurred by such person as a result of such action or proceeding or any appeal
therein. With respect to actions by or in the right of the corporation, the
NYBCL authorizes indemnification of such person against reasonable expenses
including attorneys' fees and amounts paid in settlement. To be entitled to
indemnification, a person must have acted in good faith, for a purpose which
he or she reasonably believed to be in, or in the case of service for another
organization, not opposed to, the best interests of the corporation and, with
respect to any criminal action or proceeding, in addition, had no reasonable
cause to believe his or her conduct was unlawful. Court approval is required
as a prerequisite to indemnification of expenses in respect of any claim as to
which a person has been adjudged liable to the corporation.
The NYBCL requires indemnification against expenses actually and
reasonably incurred by any director, officer, employee or agent
in connection with a proceeding against such person
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for action in such capacity to the extent that the person has been
successful on the merits or otherwise. Advancement of expenses (i.e.,
payment prior to a determination on the merits) is permitted, but not
required, by the NYBCL, which further requires that any director or
officer must undertake to repay such expenses if it is ultimately
determined that he or she is not entitled to indemnification.
The disinterested members of the board of directors (or independent
legal counsel or the shareholders) must determine, in each instance
where indemnification is not required by the NYBCL, that such director,
officer, employee or agent isentitled to indemnification. The NYBCL provides
that the indemnification provided by statute is not exclusive.
The Company's By-Laws provide that, except to the extent expressly
prohibited by the NYBCL, the Company 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 Company, or serves or served at the request of the Company 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 the 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
unless the Company has given its prior consent to such settlement or other
disposition. Reference to an action or proceeding in these By-Laws 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 Company or any
other corporation or enterprise which the director or officer of the
corporation serves at the Company's request.
The Company's By-Laws further provide that the Company 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 Company 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 Company 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 the By-
Law provisions described above.
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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
Company, 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) - Amendment dated as of March 31, 1996 to
the Three Year Credit Agreement dated as of June
1, 1994 among Morgan Guaranty Trust Company,
certain banks named in such Agreement, and the
Company, as amended July 20, 1995
(Incorporated by reference to
Exhibit 4(2) to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30,
1997 (Commission file number 1-4389)).
Exhibit 4(3) - 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)).
Exhibit 5 - Opinion of William B. Sawch, Esq.
(including Consent).
Exhibit 23(1) - Consent of Price Waterhouse LLP.
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 1997 Stock
Incentive Plan.
Item 9. Undertakings.
(a) The Company hereby undertakes:
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(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; and
(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 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;
(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
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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 24, 1997.
THE PERKIN-ELMER CORPORATION
By:/s/ William B. Sawch
William B. Sawch
Senior 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 Dennis L. Winger 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 24, 1997
Tony L. White President and Chief
Executive Officer
(Principal Executive Officer)
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Dennis L. Winger Senior Vice President, October 24, 1997
Dennis L. Winger Chief Financial Officer
and Treasurer (Principal
Financial Officer)
/s/ Ugo D. DeBlasi Corporate Controller October 24, 1997
Ugo D. DeBlasi (Principal Accounting
Officer)
/s/ Joseph F. Abely, Jr. Director October 24, 1997
Joseph F. Abely, Jr.
/s/ Richard H. Ayers Director October 24, 1997
Richard H. Ayers
/s/ Jean-Luc Belingard Director October 24, 1997
Jean-Luc Belingard
/s/ Robert H. Hayes Director October 24, 1997
Robert H. Hayes
/s/ Georges C. St. Laurent, Jr. Director October 24, 1997
Georges C. St. Laurent, Jr.
/s/ Carolyn W. Slayman Director October 24, 1997
Carolyn W. Slayman
/s/ Orin R. Smith Director October 24, 1997
Orin R. Smith
</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 1997
Stock Incentive Plan
October 24, 1997
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 2,000,000 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 1997 Stock Incentive
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,
William B. Sawch
Senior 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 23, 1997,
which appears on page 62 of the 1997 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, 1997. We also consent to the incorporation by reference of our
report on the Financial Statement Schedule, which appears on page 20 of
such Annual Report on Form 10-K.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Stamford, CT
October 20, 1997
EXHIBIT A
THE PERKIN-ELMER CORPORATION
1997 STOCK INCENTIVE PLAN
1. Purpose of the Plan.
The purpose of The Perkin-Elmer Corporation 1997 Stock Incentive Plan
(the "Plan") is to increase shareholder value and to advance the interests
of The Perkin-Elmer Corporation and its subsidiaries (collectively, the
"Corporation") by providing financial incentives designed to attract,
retain, and motivate employees, officers, and directors of the Corporation.
The Plan continues the established policy of the Corporation of encouraging
ownership of its Common Stock by key personnel and of providing incentives
for such individuals to put forth maximum efforts for the success of the
Corporation.
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 "Agreement" means the written agreement between the Corporation and
an Optionee or Award Recipient, as the case may be, evidencing the grant of
an Option or Award and setting forth the terms and conditions thereof.
2.3 "Award" means a Stock Award or Performance Share Award.
2.4 "Award Recipient" means an individual to whom an Award has been
granted under the Plan.
2.5 "Board of Directors" means the Board of Directors of the
Corporation.
2.6 "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
2.7 "Committee" means the Management Resources Committee of the Board
of Directors, or any successor thereto or committee designated thereby whose
members qualify as outside directors as defined in Section 162(m) of the
Code and the Treasury Regulations issued pursuant thereto.
2.8 "Common Stock" means the common stock, par value $1.00 per share,
of the Corporation.
2.9 "Common Stock Unit" means the bookkeeping entry representing the
equivalent of one share of Common Stock.
2.10 "Continuous Employment" means an uninterrupted chain of continuous
regular employment by the Corporation. A leave of absence granted in
accordance with the Corporation's usual procedures which does not operate to
interrupt continuous employment for other benefits granted by the
Corporation shall not be considered a termination of employment nor an
interruption of Continuous Employment hereunder, and an employee who is
granted such a leave of absence shall be considered to be continuously
employed during the period of such leave; provided, however, that if
regulations under the Code or an amendment to the Code shall establish a
more restrictive definition of a leave of absence, such definition shall be
substituted herein.
2.11 "Deferral Account" means the bookkeeping account established for
the deferral of a Director Stock Award by a Non-Employee Director pursuant
to Section 11.7 hereof.
2.12 "Director Award" means a Director Stock Award or Director Option.
2.13 "Director Option" means an Option granted pursuant to Section 7
hereof.
2.14 "Director Stock Award" means an award of shares of Common Stock
granted pursuant to Section 11 hereof.
2.15 "Employee Award" means an Employee Stock Award or Performance
Share Award.
2.16 "Employee Option" means an Option granted pursuant to Section 6
hereof.
2.17 "Employee Stock Award" means an award of shares of Common Stock
granted pursuant to Section 9 hereof.
2.18 "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).
2.19 "Incentive Stock Options" means those Options granted hereunder as
Incentive Stock Options as defined in, and which by their terms comply with
the requirements for such Options set out in, Section 422 of the Code and
the Treasury Regulations issued pursuant thereto.
2.20 "Non-Employee Director" means a member of the Board of Directors
who is not an employee or officer of the Corporation.
2.21 "Non-Qualified Stock Options" means those Options granted
hereunder which are not intended to qualify as Incentive Stock Options.
2.22 "Option" means an Employee Option or Director Option.
2.23 "Optionee" means an individual to whom an Option has been granted
under the Plan.
2.24 "Performance Share Award" means an award of Performance Shares
granted pursuant to Section 10 hereof.
2.25 "Performance Shares" means shares of Common Stock covered by a
Performance Share Award.
2.26 "Stock Award" means an Employee Stock Award or Director Stock
Award.
2.27 "Stock Restrictions" mean the restrictions, including performance
goals, placed on a Stock Award or Performance Share Award under the Plan.
2.28 "Ten Percent Shareholder" means an individual who owns, within the
meaning of Section 422(b)(6) of the Code and the Treasury Regulations issued
pursuant thereto, stock possessing more than ten (10%) percent of the total
combined voting power of all classes of stock of the Corporation.
3. Shares Reserved for the Plan.
The aggregate number of shares of Common Stock available for Options
and Awards under the Plan is Two Million (2,000,000), subject to adjustment
in accordance with Section 16. 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, transfer on the exercise of Options
or the delivery of shares of Common Stock issued pursuant to Awards treasury
shares, reacquired shares, or shares acquired in the market for purposes of
the Plan.
If any Options or Awards granted under the Plan shall for any reason
terminate, be canceled, or expire without having been exercised or vested in
full, shares of Common Stock not issued or vested in full under such Options
or Awards shall be available again for issuance under the Plan.
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,
including, without limitation, the authority to determine the individuals to
whom, and the time or times at which, Employee Options and Employee Awards
shall be granted, the number of shares of Common Stock to be covered by each
Employee Option and Employee Award, and the terms and conditions of each
Employee Option and Employee Award. 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; to determine the terms (which
need not be identical) of Agreements executed and delivered under the Plan,
including, without limitation, such terms and provisions as shall be
requisite in the judgment of the Committee to conform to any change in any
law or regulation applicable thereto; 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. Eligible Employees; Factors to be Considered in Granting Employee
Options and Employee Awards.
Subject to the terms of the Plan, an Employee Option or Employee Award
may be granted to any person who, at the time the Employee Option or
Employee Award is granted, is a regular full-time employee (which term shall
include officers and directors) of the Corporation. Non-Employee Directors
shall not be eligible to receive Employee Options or Employee Awards. In
determining the employees to whom Employee Options or Employee Awards shall
be granted, the number of shares of Common Stock to be covered by each
Employee Option or Employee Award, and the terms and conditions of each
Employee Option and Employee Award, the Committee shall take into account
the duties and responsibilities of the respective employees, their present
and potential contributions to the success of the Corporation, and such
other factors as they shall deem relevant in connection with accomplishing
the purposes of the Plan. An employee who has been granted an Employee
Option or Employee Award may be granted and hold additional Employee Options
or Employee Awards if the Committee shall so determine.
6. Employee Options.
6.1 Grant of Employee Options. Subject to the terms of the Plan, the
Committee may grant Employee Options to such employees at such time or times
and in such amounts as it shall determine. Each Employee Option granted
hereunder shall be designated as an Incentive Stock Option or Non- Qualified
Stock Option and shall be evidenced by an Agreement containing such terms
and conditions consistent with the Plan as the Committee shall determine.
6.2 Purchase Price. The purchase price of each share of Common Stock
covered by an Employee Option shall be 100% (or 110% in the case of an
Incentive Stock Option granted to a Ten Percent Shareholder) of the Fair
Market Value of a share of Common Stock on the date the Employee Option is
granted.
6.3 Term. The term of each Employee Option shall be for such period
as the Committee shall determine, but not more than ten (10) years (or five
(5) years in the case of an Incentive Stock Option granted to a Ten Percent
Shareholder) from the date of grant thereof, and shall be subject to earlier
termination as hereinafter provided. If the original term of any Employee
Option is less than ten (10) years (or five (5) years in the case of an
Incentive Stock Option granted to a Ten Percent Shareholder) from the date
of grant, the Employee Option prior to its expiration may be amended, with
the approval of the Committee and the employee, to extend the term so that
the term as amended is not more than ten (10) years (or five (5) years in
the case of an Incentive Stock Option granted to a Ten Percent Shareholder)
from the original date of grant of such Employee Option.
6.4 Vesting. An Employee Option shall be exercisable at such time or
times and in such manner and number of shares as the Committee shall
determine. If no exercise schedule is specified, an Employee Option shall be
exercisable as to one-half of the total number of shares covered by the
Employee Option on or after the date on which the Optionee shall have
completed one (1) year of Continuous Employment following the date of grant
of the Employee Option and as to the remaining one- half of the total number
of shares covered by the Employee Option on or after the date on which the
Optionee shall have completed two (2) years of Continuous Employment
following the date of grant of the Employee Option. Except as provided in
the Plan, no Employee Option may be exercised at any time unless the holder
thereof is then a regular employee of the Corporation. Employee Options
granted under the Plan shall not be affected by any change of duties or
position so long as the holder continues to be an employee of the
Corporation.
6.5 Termination of Employment. In the event that the employment of an
employee to whom an Employee Option has been granted under the Plan shall be
terminated (other than by reason of retirement, disability, or death) such
Employee Option may, subject to the provisions of the Plan, be exercised, to
the extent that the employee was entitled to do so at the date of
termination of his or her employment, at any time within thirty (30) days
after such termination, but in no event after the expiration of the term of
the Employee Option.
6.6 Retirement or Disability. If an employee to whom an Employee
Option has been granted under the Plan shall retire from the Corporation
pursuant to any qualified pension plan provided by the Corporation, or if
the employee is totally and permanently disabled, such Employee Option may
be exercised, notwithstanding the provisions of Section 6.4, in full without
regard to the period of Continuous Employment after the Employee Option was
granted at any time (a) in the case of an Incentive Stock Option within
three (3) months after such retirement or disability retirement, but in no
event after the expiration of the term of the Employee Option, or (b) in the
case of a Non-Qualified Stock Option within one (1) year after such
retirement or disability retirement, but in no event after the expiration of
the term of the Employee Option.
6.7 Death. If an employee to whom an Employee Option has been granted
under the Plan shall die while employed by the Corporation, such Employee
Option may be exercised to the extent that the employee was entitled to do
so at the date of his or her death, by his or her executor or administrator
or other person at the time entitled by law to the employee's rights under
the Employee Option, at any time within such period, not exceeding one
(1) year after his or her death, as shall be prescribed in the Agreement,
but in no event after the expiration of the term of the Employee Option.
7. Director Options.
7.1 Grant of Director Options. As of the date of each election or
reelection to the Board of Directors, commencing on the date of approval of
the Plan by the shareholders of the Corporation, each Non-Employee Director
shall automatically be granted a Director Option to purchase 1,500 shares of
Common Stock, subject to adjustment in accordance with Section 16; provided,
however, that in any calendar year prior to 1999, Director Options granted
to a Non-Employee Director hereunder and under The Perkin-Elmer Corporation
1996 Stock Incentive Plan shall not exceed in the aggregate options to
purchase 1,500 shares of Common Stock, subject to adjustment as provided
above. All Director Options shall be designated as Non-Qualified Stock
Options and shall be evidenced by an Agreement containing such terms and
conditions consistent with the Plan as the Committee shall determine.
7.2 Purchase Price. The purchase price of each share of Common Stock
covered by a Director Option shall be 100% of the Fair Market Value of a
share of Common Stock on the date the Director Option is granted.
7.3 Term. The term of each Director Option shall be for a period of
ten (10) years from the date of grant thereof and shall be subject to
earlier termination as hereinafter provided.
7.4 Vesting. Each Director Option shall be exercisable as to one-half
of the total number of shares covered by the Director Option as of the date
immediately preceding the date of the first annual meeting of shareholders
next following the date of grant and as to the remaining one-half of the
total number of shares covered by the Director Option as of the date
immediately preceding the date of the second annual meeting of shareholders
next following the date of grant; provided, however, that, except as
provided in the Plan, the holder thereof continues to serve as a member of
the Board of Directors as of each such date.
7.5 Termination of Service. In the event that a Non-Employee
Director's service as a member of the Board of Directors shall be terminated
(other than pursuant to Section 7.6 or 7.7) any Director Option granted to
such Non-Employee Director may, subject to the provisions of the Plan, be
exercised, to the extent that the Non-Employee Director was entitled to do
so at the date of termination of his or her service as a member of the Board
of Directors, at any time within thirty (30) days after such termination,
but in no event after the expiration of the term of the Director Option.
7.6 Retirement or Disability. If a Non-Employee Director to whom a
Director Option has been granted under the Plan shall cease to serve as a
director as a result of (a) retiring from the Board of Directors upon
reaching normal retirement age, (b) becoming totally and permanently
disabled, or (c) resigning or declining to stand for reelection with the
approval of the Board of Directors, such Director Option may be exercised,
notwithstanding the provisions of Section 7.4, in full within one (1) year
after such retirement or disability retirement, but in no event after the
expiration of the term of the Director Option.
7.7 Death. If a Non-Employee Director to whom a Director Option has
been granted under the Plan shall die while serving as a member of the Board
of Directors, such Director Option may be exercised to the extent that the
Non-Employee Director was entitled to do so at the date of his or her death,
by his or her executor or administrator or other person at the time entitled
by law to the Non-Employee Director's rights under the Director Option, at
any time within one (1) year after his or her death, but in no event after
the expiration of the term of the Director Option.
8. Terms and Conditions Applicable to All Options.
8.1 Transferability. During the lifetime of an Optionee, an Option
shall not be transferable, except pursuant to a domestic relations order;
provided, however, that the Committee may, in its sole discretion, permit an
Optionee to transfer a Non-Qualified Stock Option to (i) a member of the
Optionee's immediate family, (ii) a trust, the beneficiaries of which
consist exclusively of members of the Optionee's immediate family, or
(iii) a partnership, the partners of which consist exclusively of members of
the Optionee's immediate family. After the death of an Optionee, an Option
may be transferred pursuant to the laws of descent and distribution.
8.2 Method of Exercise. An Option may be exercised by giving written
notice to the Corporation specifying the number of shares of Common Stock to
be purchased; provided that, except as otherwise provided by the Committee,
an Option may not be exercised as to fewer than 50 shares, or the remaining
shares covered by the Option if fewer than 50, at any one time. No Option
may be exercised with respect to a fractional share. The purchase price of
the shares as to which an Option shall be exercised shall be paid in full at
the time of exercise at the election of the holder of an Option (a) in cash
or currency of the United States of America, (b) by tendering to the
Corporation shares of Common Stock, then owned by such holder, having a Fair
Market Value equal to the cash exercise price applicable to the purchase
price of the shares as to which the Option is being exercised, (c) by making
an election to have shares of Common Stock underlying the Option withheld by
the Corporation (provided that the Option has been held for at least six
(6) months), with such shares having a Fair Market Value equal to the cash
exercise price applicable to the purchase price of the shares as to which
the Option is being exercised, (d) a combination of cash, previously owned
shares of Common Stock, and/or share withholding, with any shares of Common
Stock valued at Fair Market Value, or (e) by payment of such other
consideration as the Committee shall from time to time determine. For
purposes of the immediately preceding sentence, Fair Market Value shall be
determined as of the business day immediately preceding the day on which the
Option is exercised. Notwithstanding the foregoing, the Committee shall have
the right to modify, amend, or cancel the provisions of clauses (b), (c),
and (d) above at any time upon prior notice to the holders of Options.
8.3 Shareholder Rights. An Optionee shall have none of the rights of
a shareholder with respect to the shares subject to an Option until such
shares have been registered upon the exercise of the Option on the transfer
books of the Corporation in the name of such Optionee and then only to the
extent that any restrictions imposed thereon by the Committee shall have
lapsed.
8.4 No Loans. Neither the Corporation, any company with which it is
affiliated, nor any of their respective subsidiaries may directly or
indirectly lend money to any person for the purpose of assisting such person
in acquiring or carrying shares of Common Stock issued upon the exercise of
an Option.
8.5 Conditions Precedent to Exercise. Notwithstanding any other
provision of the Plan, but subject to the provisions of Section 12, the
exercise of an Option within one (1) year following termination of
employment or service shall be subject to the satisfaction of the conditions
precedent that the Optionee has not (a) rendered services or engaged
directly or indirectly in any business which in the opinion of the Committee
competes with or is in conflict with the interests of the Corporation;
provided, however, that the ownership by an Optionee of 5% or less of any
class of securities of a publicly traded company shall not be deemed to
violate this clause, or (b) violated any written agreement with the
Corporation, including, without limitation, any confidentiality agreement.
An Optionee's violation of clause (a) or (b) of the preceding sentence shall
result in the immediate forfeiture of any Options held by such Optionee.
8.6 Limitations on the Grant of Options. No one individual may be
granted an Option or Options under the Plan during any fiscal year of the
Corporation for an aggregate number of shares of Common Stock which exceeds
10% of the total number of shares reserved for issuance under the Plan. The
aggregate Fair Market Value of the Common Stock (determined as of the date
the Option is granted) with respect to which Incentive Stock Options granted
under the Plan and all other stock option plans of the Corporation (or any
parent or subsidiary of the Corporation) are exercisable for the first time
by any specific individual during any calendar year shall not exceed
$100,000. No Incentive Stock Option may be granted hereunder to an
individual who immediately after such Option is granted is a Ten Percent
Shareholder unless (a) the Option price is at least 110% of the fair market
value of such stock on the date of grant and (b) the Option may not be
exercised more than five (5) years after the date of grant.
9. Employee Stock Awards.
9.1 Grant of Employee Stock Awards. Subject to the terms of the Plan,
the Committee may grant Employee Stock Awards to such employees at such time
or times and in such amounts as it shall determine. Shares of Common Stock
issued pursuant to Employee Stock Awards may, but need not, be subject to
such restrictions as may be established by the Committee at the time of the
grant and reflected in an Agreement.
9.2 Restrictions on Employee Stock Awards. Except as provided in the
Plan, any shares of Common Stock subject to an Employee Stock Award with
respect to which Stock Restrictions have not been satisfied shall be
forfeited and all rights of the employee to such Employee Stock Award shall
terminate without any payment of consideration by the Corporation. Except as
set forth in Section 9.5, a recipient of an Employee Stock Award subject to
Stock Restrictions shall forfeit such award in the event of the termination
of his or her employment during the period the shares are subject to Stock
Restrictions.
9.3 Shareholder Rights. The recipient of an Employee Stock Award
shall be entitled to such rights of a shareholder with respect to the shares
of Common Stock issued pursuant to such Employee Stock Award as the
Committee shall determine, including the right to vote such shares of Common
Stock, except that cash and stock dividends with respect to such shares may,
at the discretion of the Committee, be either paid currently or withheld by
the Corporation for the Award Recipient's account, and interest may be
accrued on the amount of cash dividends withheld at a rate and subject to
such terms as determined by the Committee.
The Committee, in its discretion, may cause a legend or legends to be
placed on any certificate representing shares issued pursuant to Employee
Stock Awards, which legend or legends shall make appropriate reference to
the Stock Restrictions imposed thereon. The Committee may also in its
discretion require that certificates representing shares issued pursuant to
Employee Stock Awards remain in the physical custody of the Corporation or
an escrow holder until any or all of the Stock Restrictions imposed under
the Plan have lapsed.
9.4 Non-Transferability. Prior to the time Stock Restrictions lapse,
none of the shares of Common Stock issued pursuant to an Employee Stock
Award may be sold, assigned, bequeathed, transferred, pledged, hypothecated,
or otherwise disposed of in any way by the Award Recipient.
9.5 Lapse of Restrictions. In the event of the termination of
employment of an Award Recipient, prior to the lapse of Stock Restrictions,
by reason of death, total and permanent disability, retirement, or
resignation or discharge from employment other than discharge for cause, the
Committee may, in its discretion, remove any Stock Restrictions on all or a
portion of the Common Stock subject to an Employee Stock Award.
9.6 Limitations on Employee Stock Awards. No employee may receive an
Employee Stock Award representing more than Forty Thousand (40,000) shares
of Common Stock during any fiscal year of the Corporation, and the maximum
number of shares of Common Stock which may be issued to all employees
pursuant to Employee Stock Awards under the Plan shall be Eighty Thousand
(80,000), subject in each case to adjustment in accordance with Section 16.
10. Performance Share Awards.
10.1 Grant of Performance Share Awards. Subject to the terms of the
Plan, the Committee may grant Performance Share Awards to such employees at
such time or times and in such amounts as it shall determine. Common Stock
issued pursuant to a Performance Share Award shall be subject to the
attainment of performance goals relating to one or more criteria within the
meaning of Section 162(m) of the Code and the Treasury Regulations issued
pursuant thereto, including, without limitation, stock price, market share,
sales, earnings per share, return on equity, costs, and cash flow, as
determined by the Committee from time to time. Any such objectives and the
period in which such objectives are to be met shall be determined by the
Committee at the time of the grant and reflected in an Agreement. Each
Performance Share Award shall also be subject to such other restrictions as
the Committee may determine.
10.2 Delivery of Performance Shares. Certificates representing
Performance Shares shall be registered in the Award Recipient's name but
shall remain in the physical custody of the Corporation until the Committee
has determined that the performance goals and other Stock Restrictions with
respect to such Performance Shares have been met.
10.3 Shareholder Rights. The recipient of a Performance Share Award
shall be entitled to such rights of a shareholder with respect to the
Performance Shares as the Committee shall determine, including the right to
vote such shares of Common Stock, except that cash and stock dividends with
respect to the Performance Shares may, at the discretion of the Committee,
be either paid currently or withheld by the Corporation for the Award
Recipient's account, and interest may be accrued on the amount of cash
dividends withheld at a rate and subject to such terms as determined by the
Committee.
10.4 Non-Transferability. Prior to the time shares of Common Stock
issued pursuant to a Performance Share Award are delivered to an Award
Recipient, none of such shares may be sold, assigned, bequeathed,
transferred, pledged, hypothecated, or otherwise disposed of in any way by
the Award Recipient.
10.5 Lapse of Restrictions. In the event of the termination of
employment of an Award Recipient, prior to the lapse of Stock Restrictions,
by reason of death, total and permanent disability, retirement, or
resignation or discharge from employment other than discharge for cause, the
Committee may, in its discretion, remove any Stock Restrictions on all or a
portion of a Performance Share Award, or determine the performance
objectives with respect to all or a portion of a Performance Share Award to
have been attained; provided, however, that the Committee shall not be
entitled to exercise such discretion to the extent that the ability to
exercise such discretion would cause the Performance Share Award not to
qualify as performance based compensation under Section 162(m) of the Code.
10.6 Limitations on Performance Share Awards. No employee may receive
Performance Share Awards representing more than One Hundred Thousand
(100,000) shares of Common Stock during any fiscal year of the Corporation,
and the maximum number of shares of Common Stock which may be issued to all
employees pursuant to Performance Share Awards under the Plan shall be Four
Hundred Thousand (400,000), subject in each case to adjustment in accordance
with Section 16.
11. Director Stock Awards.
11.1 Grant of Director Stock Awards. Thirty (30) days after the date
of his or her election or reelection to the Board of Directors, commencing
with the election on October 16, 1997, each Non-Employee Director shall
automatically be granted a Director Stock Award with respect to 300 shares
of Common Stock, subject to adjustment in accordance with Section 16.
Notwithstanding the foregoing, each Non-Employee Director first elected to
the Board of Directors on a date other than the date of an annual meeting of
shareholders shall be granted that number of whole shares of Common Stock
equal to the number of shares then subject to a Director Stock Award
multiplied by a fraction, the numerator of which shall be the number of
months remaining until the anticipated date of the next annual meeting of
shareholders, and the denominator of which shall be 12. All Director Stock
Awards shall be evidenced by an agreement containing such terms and
conditions consistent with the Plan as the Committee shall determine.
11.2 Vesting. Each Director Stock Award shall vest in full as of the
date immediately preceding the date of the first annual meeting of
shareholders next following the date of grant; provided, however, that,
except as provided in the Plan, the recipient thereof continues to serve as
a member of the Board of Directors as of such date.
11.3 Forfeiture of Director Stock Awards. Except as provided in the
Plan, a recipient of a Director Stock Award shall forfeit any unvested
shares of Common Stock subject to the Director Stock Award, and all rights
of the Non-Employee Director to such unvested shares shall terminate without
payment of consideration by the Corporation, upon the termination of his or
her service as a member of the Board of Directors.
11.4 Shareholder Rights. Except as provided in Sections 11.5 and
11.7, a recipient of a Director Stock Award shall be entitled to all rights
of a shareholder with respect to the shares of Common Stock issued pursuant
to the Director Stock Award, including the right to receive dividends and to
vote such shares of Common Stock; provided, however, that stock dividends
paid with respect to such shares shall be restricted to the same extent as
the underlying shares of Common Stock issued pursuant to the Director Stock
Award.
The Committee shall cause a legend or legends to be placed on any
certificate representing shares issued pursuant to a Director Stock Award,
which legend or legends shall make appropriate reference to the terms of the
Director Stock Award and the Plan. The Committee shall also require that
certificates representing shares issued pursuant to Director Stock Awards
remain in the physical custody of the Corporation or an escrow holder until
such shares have vested in accordance with the terms of the Plan.
11.5 Non-Transferability. Prior to vesting, none of the shares of
Common Stock issued pursuant to a Director Stock Award may be sold,
assigned, bequeathed, transferred, pledged, hypothecated, or otherwise
disposed of in any way by the recipient thereof.
11.6 Termination of Service. If a Non-Employee Director to whom a
Director Stock Award has been granted shall cease to serve as a director as
a result of (a) his or her death, (b) retiring from the Board of Directors
upon reaching normal retirement age, (c) becoming totally and permanently
disabled, or (d) resigning with the approval of the Board of Directors, all
shares subject to such Director Stock Award shall be vested in full,
notwithstanding the provisions of Section 11.2, as of the date of
termination of service.
11.7 Deferral Election. A Non-Employee Director may elect to defer
receipt of any Director Stock Award by filing the appropriate deferral form
with the Corporate Secretary on or before December 15th of the calendar
year prior to the calendar year in which such deferral is to be effective.
Notwithstanding the foregoing, persons elected or reelected as Non-Employee
Directors on October 16, 1997 shall be permitted to make the deferral
election no later than twenty (20) days after such date, and any person
subsequently elected as a Non-Employee Director for the first time shall be
permitted to make his or her first deferral election no later than twenty
(20) days after such election. In no event, however, shall any deferral be
permitted to the extent prohibited by applicable law. Deferrals shall be
subject to the following terms and conditions:
(a) A Non-Employee Director may elect to defer receipt of a
Director Stock Award until (i) a specified date in the future, (ii)
cessation of his or her service as a member of the Board of Directors,
or (iii) the end of the calendar year in which cessation of his or her
service as a member of the Board of Directors occurs.
(b) There shall be established a Deferral Account on the books of
the Corporation for each Non-Employee Director electing to defer a
Director Stock Award pursuant to this Section 11.7. Deferrals shall be
credited to the Non-Employee Director's Deferral Account in Common
Stock Units in the following manner: on the award date to which the
deferral election applies, the amount deferred shall be converted into
a number of Common Stock Units equal to the number of shares of Common
Stock awarded that are subject to the deferral election. A Non-Employee
Director shall not have any voting rights with respect to any Common
Stock Units held in his or her Deferral Account.
(c) Whenever cash dividends are paid with respect to shares of
Common Stock, each Non-Employee Director's Deferral Account shall be
credited on the payment date of such dividend with additional Common
Stock Units (including fractional units to the nearest one/one
hundredth (1/100th)) equal in value to the amount of the cash dividend
paid on a single share of Common Stock multiplied by the number of
Common Stock Units (including fractional units) credited to his or her
Deferral Account as of the date of record for dividend purposes. For
purposes of crediting dividends, the value of a Common Stock Unit shall
be the Fair Market Value of a Share of Common Stock as of the payment
date of the dividend.
(d) The number of Common Stock Units credited to each
Non-Employee Director's Deferral Account shall be appropriately
adjusted in the same manner and to the same extent Director Stock
Awards are adjusted and modified pursuant to Section 16. In the event
of a transaction subject to Section 12, the Board of Directors shall
have the authority to amend the Plan to provide for the conversion of
Common Stock Units credited to Deferral Accounts into units equal to
shares of stock of the resulting or acquiring company (or a related
company), as appropriate, if such stock is publicly traded or, if not,
into cash of equal value on the effective date of such transaction. If
pursuant to the preceding sentence cash is credited to a Non-Employee
Director's Deferral Account, interest shall be credited thereon from
the date such cash is received to the date of distribution quarterly,
at the end of each calendar quarter, at a rate per annum (computed on
the basis of a 360-day year and a 91-day quarter) equal to the prime
rate announced publicly by Citibank, N.A. at the end of such calendar
quarter. If units representing publicly traded stock of the resulting
or acquired company (or a related company) are credited to a
Non-Employee Director's Deferral Account, dividends shall be credited
thereto in the same manner as dividends are credited on Common Stock
Units credited to such Deferral Accounts.
(e) Subject to Section 11.7(g), distributions of a Non-Employee
Director's Deferral Account under the Plan shall be made as follows:
(i) If a Non-Employee Director has elected to defer a
Director Stock Award to a specified date in the future, payment
shall be as of such date and shall be made or shall commence, as
the case may be, within thirty (30) days after the date specified;
(ii) If a Non-Employee Director has elected to defer a
Director Stock Award until cessation of his or her service as a
member of the Board of Directors, payment shall be as of the date
of such cessation of service and shall be made or shall commence,
as the case may be, within thirty (30) days after the cessation of
the Non-Employee Director's service as a director; and
(iii) If a Non-Employee Director has elected to defer a
Director Stock Award until the end of the calendar year in which
the cessation of his or her service as a member of the Board of
Directors occurs, payment shall be made as of December 31st of
such year and shall be made or commence, as the case may be, on
December 31st of such year.
(f) Notwithstanding any elections pursuant to Sections 11.7(a)
and/or (g) hereof, in the event of the death of the Non-Employee
Director prior to the distribution of his or her Deferral Account, the
balance credited to such Deferral Account as of the date of his or her
death shall be paid, as soon as reasonably possible thereafter, in a
single distribution to the Non-Employee Director's beneficiary or
beneficiaries designated on such Non-Employee Director's deferral
election form. If no such election or designation has been made, such
amounts shall be payable to the Non-Employee Director's estate.
(g) A Non-Employee Director may elect to have his or her Deferral
Account under the Plan paid in a single distribution or equal annual
installments, not to exceed ten (10) annual installments. To the extent
a Deferral Account is deemed invested in Common Stock Units, such
Common Stock Units shall be converted to Common Stock on the
distribution date as provided in Section 11.7(h). To the extent deemed
invested in units of any other stock, such units shall similarly be
converted and distributed in the form of stock. To the extent invested
in a medium other than Common Stock Units or other units, each such
distribution hereunder shall be in the medium credited to the Deferral
Account.
(h) To the extent a Deferral Account is deemed invested in Common
Stock Units, a single distribution shall consist of the number of whole
shares of Common Stock equal to the number of Common Stock Units
credited to the Non-Employee Director's Deferral Account on the date as
of which the distribution occurs. Cash shall be paid to a Non-Employee
Director in lieu of a fractional share, determined by reference to the
Fair Market Value of a share of Common Stock on the date as of which
the distribution occurs. In the event a Non-Employee Director has
elected to receive annual installment payments, each such payment shall
be determined as follows:
(i) To the extent his or her Deferral Account is deemed to
be invested in Common Stock Units, each such payment shall consist
of the number of whole shares of Common Stock equal to the number
of Common Stock Units (including fractional units) credited to the
Deferral Account on the date as of which the distribution occurs,
divided by the number of annual installments remaining as of such
distribution date. Cash shall be paid to Non-Employee Directors in
lieu of fractional shares, determined by reference to the Fair
Market Value of a share of Common Stock on the date as of which
the distribution occurs.
(ii) To the extent his or her Deferral Account has been
credited in cash, each such payment shall be calculated by
dividing the value on the date the distribution occurs of that
portion of the Non-Employee Director's Deferral Account which is
in cash by the number of annual installments remaining as of such
distribution date.
12. Acceleration Upon a Change of Control.
Notwithstanding any other provision of the Plan or any Option or Award
granted hereunder, (a) any Option granted hereunder and then outstanding
shall become immediately exercisable in full, (b) all Stock Restrictions
shall immediately terminate, and (c) all performance objectives applicable
to any Performance Share Award shall be deemed attained (i) in the event
that a tender offer or exchange offer (other than an offer by the
Corporation) for the Common Stock is made by any "person" within the meaning
of Section 14(d) of the Act and not withdrawn within ten (10) days after the
commencement thereof; provided, however, that the Committee may by action
taken prior to the end of such ten (10) day period extend such ten (10) day
period for up to a period of ninety (90) days after the commencement of such
tender offer or exchange offer; and, provided further, that the Committee
may by further action taken prior to the end of such extended period declare
(a) all Options granted hereunder and then outstanding to be immediately
exercisable in full, (b) all Stock Restrictions to be immediately
terminated, and (c) all performance objectives applicable to any Performance
Share Award to be deemed attained, or (ii) in the event of a Change in
Control (as hereinafter defined).
For purposes of this Section 12, a "Change in Control" means an event
that would be required to be reported (assuming such event has not been
"previously reported") in response to Item 1(a) of the Current Report on
Form 8-K, as in effect on the effective date of the Plan, pursuant to
Section 13 or 15(d) of the Act; provided, however, that, without limitation,
such a Change in Control shall be deemed to have occurred at such time as
(a) any "person" within the meaning of Section 14(d) of the Act becomes the
"beneficial owner" as defined in Rule 13d-3 thereunder, directly or
indirectly, of more than 25% of the Common Stock, (b) during any two-year
period, individuals who constitute the Board of Directors (the "Incumbent
Board") as of the beginning of the period cease for any reason to constitute
at least a majority thereof, provided that any person becoming a director
during such period whose election or nomination for election by the
Corporation's shareholders was approved by a vote of at least three-quarters
of the Incumbent Board (either by a specific vote or by approval of the
proxy statement of the Corporation in which such person is named as a
nominee for director without objection to such nomination) shall be, for
purposes of this clause (b), considered as though such person were a member
of the Incumbent Board, or (c) the approval by the Corporation's
shareholders of the sale of all or substantially all of the stock or assets
of the Corporation. The Committee may adopt such procedures as to notice and
exercise as may be necessary to effectuate the acceleration of the
exercisability of Options, termination of Stock Restrictions, and attainment
of performance objectives as described above.
13. Share Withholding.
With respect to any Option or Award, the Committee may, in its
discretion and subject to such rules as the Committee may adopt, permit or
require any Optionee or Award Recipient to satisfy, in whole or in part, any
withholding tax obligation which may arise in connection with an Option or
Award by electing to have the Corporation withhold Common Stock having a
Fair Market Value (as of the date the amount of withholding tax is
determined) equal to the amount of withholding tax.
14. No Right to Continued Employment or Service.
Nothing contained in the Plan or in any Option or Award granted or
Agreement entered into pursuant to the Plan shall confer upon any employee
the right to continue in the employ of the Corporation or any Non-Employee
Director to continue as a member of the Board of Directors or interfere with
the right of the Corporation to terminate such employee's employment or
Non-Employee Director's service at any time.
15. Time of Granting Employee Options and Employee Awards.
Nothing contained in the Plan or in any resolution adopted by the Board
of Directors or the holders of Common Stock shall constitute the grant of
any Employee Option or Employee Award hereunder. An Employee Option or
Employee Award under the Plan shall be deemed to have been granted on the
date on which the name of the recipient and the terms of the Employee Option
or Employee Award are set forth in an Agreement and delivered to the
recipient, unless otherwise provided in the Agreement.
16. Adjustments 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, the number of
shares subject to Director Options and Director Stock Awards, the maximum
number of shares that may be subject to Options and Awards, and the terms of
any outstanding Options or Awards (including, without limitation, the number
of shares subject to an outstanding Option or Award and the price at which
shares of Common Stock may be issued pursuant to an outstanding Option)
shall be adjusted in such manner as the Committee in its discretion deems
appropriate.
17. Termination and Amendment of the Plan.
Unless the Plan shall have been terminated as hereinafter provided, no
Option or Award shall be granted hereunder after October 31, 2002. The Board
of Directors may at any time prior to that date terminate the Plan or make
such modification or amendment to the Plan as it shall deem advisable;
provided, however, that no amendment may be made without the approval by the
holders of Common Stock (except as provided by Section 16 hereof) which
would (a) increase the aggregate number of shares of Common Stock which may
be issued under the Plan, or (b) materially modify the requirements as to
eligibility for participation in the Plan. No termination, modification, or
amendment of the Plan may, without the consent of an Optionee or Award
Recipient, adversely affect in any material manner the rights of such
Optionee or Award Recipient under any Option or Award.
18. Amendment of Employee Options and Employee Awards at the Discretion of
the Committee.
The terms of any outstanding Employee Option or Employee Award may be
amended from time to time by the Committee in its discretion in any manner
that it deems appropriate, including, without limitation, acceleration of
the date of exercise of any Employee Option or Employee Award, termination
of Stock Restrictions as to any Employee Award, or the conversion of an
Incentive Stock Option into a Non-Qualified Stock Option; provided, however,
that no such amendment shall adversely affect in any material manner any
right of any Optionee or Award Recipient under the Plan without his or her
consent; and, provided further, that the Committee shall not (a) amend any
previously-issued Performance Share Award to the extent that such amendment
would cause such Performance Share Award not to qualify as performance based
compensation under Section 162(m) of the Code or (b) amend any
previously-issued Employee Option to reduce the purchase price thereof
whether by modification of the Employee Option or by cancellation of the
Employee Option in consideration of the immediate issuance of a replacement
Employee Option bearing a reduced purchase price.
19. Government Regulations.
The Plan and the grant and exercise of Options and Awards hereunder,
and the obligation of the Corporation to issue, sell and deliver shares, as
applicable, under such Options and Awards, shall be subject to all
applicable laws, rules, and regulations.
Notwithstanding any other provision of the Plan, transactions under the
Plan are intended to comply with the applicable exemptions under Rule 16b-3
under the Act as to persons subject to the reporting requirements of Section
16(a) of the Act with respect to shares of Common Stock, and Options and
Awards under the Plan shall be fashioned and administered in a manner
consistent with the conditions applicable under Rule 16b-3.
20. Options and 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 and Awards made to individuals employed in such
countries and to meet the objectives of the Plan.
21. Governing Law.
The Plan shall be construed, regulated, and administered under the
internal laws of the State of Connecticut.
22. Shareholder Approval.
The Plan shall become effective upon the date of adoption by the Board
of Directors, subject to approval by the affirmative vote of the holders of
a majority of all outstanding shares of Common Stock entitled to vote
thereon. Unless so approved within one (1) year after the date of the
adoption of the Plan by the Board of Directors, the Plan shall not be
effective for any purpose. Prior to approval by the Corporation's
shareholders, the Committee may grant Options and Awards under the terms of
the Plan, but if shareholder approval is not obtained in the specified
period, such Options and Awards shall be of no effect.
