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
DEFERRED COMPENSATION 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
Title of Securities Amount to be Price Per Offering Amount of
to be Registered Registered Share Price (1) Registration Fee
Deferred Compensation
Obligations (2) $2,000,000 100% $2,000,000 $590.00
1. Estimated solely for purposes of determining the registration
fee.
2. The Deferred Compensation Obligations are unsecured
obligations of The Perkin-Elmer Corporation to pay deferred
compensation in the future in accordance with the terms of The
Perkin-Elmer Corporation Deferred Compensation Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual
Information.
Not required to be filed with this Registration Statement.
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 Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 1997.
(3) The Company's Current Report on Form 8-K dated
August 23, 1997 and filed on August 26, 1997.
(4) The Company's Current Report on Form 8-K dated
January 22, 1998 and filed on January 23, 1998.
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,
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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.
Item 4. Description of Securities.
The securities being registered under this Registration
Statement consist of obligations (the "Obligations") of the
Company to pay compensation deferred by eligible employees under
the terms of The Perkin-Elmer Corporation Deferred Compensation
Plan (the "Plan"). Subject to the terms of the Plan, an eligible
employee (a "Participant") may enter into an agreement with the
Company providing for the deferral of the payment of a specified
portion or amount of compensation payable by the Company to the
Participant. A Participant's deferrals are credited to a record
keeping account maintained by the Company in the name of the
Participant. Each Participant account will be periodically
adjusted to reflect the investment experience of one or more
investment benchmarks designated under the Plan and selected by
the Participant. A Participant will be at all times fully vested
in the amounts credited to his or her account. The amounts
credited to a Participant's account will be paid upon the
earliest of (i) a pre-retirement distribution date designated by
the Participant in accordance with the Plan, (ii) termination of
the Participant's employment, or (iii) the Participant's
retirement or death. Payment of such amounts may be made in a
lump sum or in monthly installments over a period of up to 15
years, depending on the applicable terms of the Plan and the
Participant's payment election. The Company reserves the right
to accelerate the payment of any Participant's account balance in
the event of a termination of the Plan. In addition, the Company
may delay the payment of a Participant's account balance under
certain circumstances, such as when the payment of such amounts
would exceed certain limitations imposed by tax law. A
Participant's rights to and under the Obligations cannot be
assigned, alienated, sold, transferred, pledged or encumbered,
except by way of transfer to the employee's beneficiary or estate
upon the Participant's death, pursuant to the terms of the Plan.
The Obligations are general unsecured obligations of the
Company which rank pari passu with other unsecured and
unsubordinated indebtedness of the Company that may be
outstanding from time to time. No sinking fund has or will
be established with respect to the Obligations. The
Obligations are not subject to redemption, in whole or in
part, prior to the payment dates applicable under the Plan,
and the Obligations are not convertible into any other
security of the Company. The Company reserves the right to
amend or terminate the Plan at any time. In the
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event the Plan is terminated prior to a Change in Control
(as defined in the Plan), the Company has the right, in its
sole discretion, and notwithstanding any elections made by a
Participant, to pay the Obligations in a lump sum or in
monthly installments over a period of up to 15 years. After
a Change in Control, the Company is required to pay the
Obligations in a lump sum.
Except as stated above, the Obligations do not enjoy the
benefit of any affirmative or negative pledges or covenants by
the Company. The Company shall establish a grantor trust to fund
the payment of the Obligations, but the Company retains
discretion to determine the amount and timing of any
contributions to the trust. The assets of the trust will remain
subject to the claims of the Company's creditors. The trustee of
the trust will be required to administer the trust in accordance
with its terms, but the trustee's obligations and authority are
limited to the amounts which may be held in the trust from time
to time and the trustee may be subject to the direction of the
Company with respect to the payment of Obligations. Accordingly,
the trustee of the trust does not have any independent obligation
or authority to act on behalf of any Participant or beneficiary
and each Participant and beneficiary will be responsible for
acting on his or her own behalf with respect to, among other
things, the giving of notices, responding to requests for
consents, waivers or amendments, enforcing covenants and taking
action upon default.
Item 5. Interests of Named Experts and Counsel.
The legality of the Obligations offered pursuant to this Registration
Statement has been passed upon by Thomas P. Livingston, Esq., Assistant
Secretary of the Company. Mr. Livingston is eligible to participate in
the Plan and owns shares of common stock of the Company and options to
purchase shares of 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
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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 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 is entitled 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
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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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit 4 - The Perkin-Elmer Corporation
Deferred Compensation Plan.
Exhibit 5 - Opinion of Thomas P. Livingston,
Esq. (including Consent).
Exhibit 23(1) - Consent of Price Waterhouse
LLP.
Exhibit 23(2) - Consent of Thomas P. Livingston, Esq.
(included in Exhibit 5).
Exhibit 24 - Power of Attorney (contained
on the signature pages hereof).
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; and
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(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 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 January 29, 1998.
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, January 29, 1998
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, January 29, 1998
Dennis L. Winger Chief Financial Officer
and Treasurer (Principal
Financial Officer)
/s/ Ugo D. DeBlasi Corporate Controller January 29, 1998
Ugo D. DeBlasi (Principal Accounting
Officer)
/s/ Joseph F. Abely, Jr. Director January 29, 1998
Joseph F. Abely, Jr.
/s/ Richard H. Ayers Director January 29, 1998
Richard H. Ayers
/s/ Jean-Luc Belingard Director January 29, 1998
Jean-Luc Belingard
/s/ Robert H. Hayes Director January 29, 1998
Robert H. Hayes
Director January , 1998
Georges C. St. Laurent, Jr.
/s/ Carolyn W. Slayman Director January 29, 1998
Carolyn W. Slayman
/s/ Orin R. Smith Director January 29 , 1998
Orin R. Smith
</TABLE>
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EXHIBIT INDEX
Exhibit No. Exhibit
4 The Perkin-Elmer Corporation Deferred
Compensation Plan.
5 Opinion of Thomas P. Livingston, Esq.
(including Consent).
23(1) Consent of Price Waterhouse LLP.
The Perkin-Elmer Corporation
Deferred Compensation Plan
Master Plan Document
Amended and Restated
Effective as of January 1, 1998
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TABLE OF CONTENTS
Page
Purpose 1
ARTICLE 1 Definitions 1
ARTICLE 2 Selection; Enrollment; Eligibility 6
2.1 Selection by Committee 6
2.2 Enrollment Requirements 6
2.3 Eligibility; Commencement of Participation 6
2.4 Termination of Participation and/or Deferrals 7
ARTICLE 3 Deferral Commitments; Crediting; Taxes 7
3.1 Minimum Deferral 7
3.2 Maximum Deferral 8
3.3 Election to Defer; Effect of Election Form 8
3.4 Withholding of Annual Deferral Amounts 9
3.5 Investment of Trust Assets 9
3.6 Vesting 9
3.7 Crediting/Debiting of Account Balances 9
3.8 FICA, Other Taxes and Deductions 11
3.9 Distributions 11
ARTICLE 4 Short Term Payout; Unforeseeable Financial
Emergencies; Withdrawal Election 11
4.1 Short-Term Payout 11
4.2 Other Benefits Take Precedence Over Short-Term Payout 12
4.3 Withdrawal Payout; Suspensions for Unforeseeable
Financial Emergencies 12
4.4 Withdrawal Election 12
ARTICLE 5 Retirement Benefit 13
5.1 Retirement Benefit 13
5.2 Payment of Retirement Benefit 13
5.3 Death Prior to Completion of Retirement Benefit 13
ARTICLE 6 Pre-Retirement Survivor Benefit 14
6.1 Pre-Retirement Survivor Benefit 14
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6.2 Payment of Pre-Retirement Survivor Benefit 14
ARTICLE 7 Termination Benefit 14
7.1 Termination Benefit 14
7.2 Payment of Termination Benefit 14
ARTICLE 8 Beneficiary Designation 15
8.1 Beneficiary 15
8.2 Beneficiary Designation; Change; Spousal Consent 15
8.3 Acknowledgement 15
8.4 No Beneficiary Designation 15
8.5 Doubt as to Beneficiary 15
8.6 Discharge of Obligations 16
ARTICLE 9 Leave of Absence 16
9.1 Paid Leave of Absence 16
9.2 Unpaid Leave of Absence 16
ARTICLE 10 Termination, Amendment or Modification 16
10.1 Termination 16
10.2 Amendment 17
10.3 Plan Agreement 17
10.4 Effect of Payment 18
ARTICLE 11 Administration 18
11.1 Committee Duties 18
11.2 Agents 18
11.3 Binding Effect of Decisions 18
11.4 Indemnity of Committee 18
11.5 Employer Information 18
ARTICLE 12 Other Benefits and Agreements 19
12.1 Coordination with Other Benefits 19
ARTICLE 13 Claims Procedures 19
13.1 Presentation of Claim 19
13.2 Notification of Decision 19
13.3 Review of a Denied Claim 20
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13.4 Decision on Review 20
13.5 Legal Action 20
ARTICLE 14 Trust 20
14.1 Establishment of the Trust 20
14.2 Interrelationship of the Plan and the Trust 21
14.3 Distributions From the Trust 21
ARTICLE 15 Miscellaneous 21
15.1 Status of Plan 21
15.2 Unsecured General Creditor 21
15.3 Employer's Liability 21
15.4 Nonassignability 21
15.5 Not a Contract of Employment 22
15.6 Furnishing Information 22
15.7 Terms 22
15.8 Captions 22
15.9 Governing Law 22
15.10 Notice 22
15.11 Successors 23
15.12 Spouse's Interest 23
15.13 Validity 23
15.14 Incompetent 23
15.15 Court Order 23
15.16 Distribution in the Event of Taxation 24
15.17 Insurance 24
15.18 Legal Fees To Enforce Rights After Change in Control 24
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THE PERKIN-ELMER CORPORATION
DEFERRED COMPENSATION PLAN
Amended and Restated
Effective as of January 1, 1998
Purpose
The purpose of the Plan is to provide specified benefits to a
select group of management or highly compensated Employees who
contribute materially to the continued growth, development and
future business success of The Perkin-Elmer Corporation a New York
corporation, and its subsidiaries, if any, that sponsor the Plan.
The Plan shall be unfunded for tax purposes and for purposes of
Title I of ERISA.
ARTICLE 1
Definitions
For purposes of the Plan, unless otherwise clearly apparent
from the context, the following phrases or terms shall have the
following indicated meanings:
1.1 "Account Balance" shall mean, with respect to a Participant,
a credit on the records of the Employer equal to the Deferral
Account balance. The Account Balance shall be a bookkeeping
entry only and shall be utilized solely as a device for the
measurement and determination of the amounts to be paid to a
Participant, or his or her designated Beneficiary, pursuant
to the Plan.
1.2 "Annual Bonus" shall mean any compensation, in addition to
Base Annual Salary, paid annually to a Participant as an
Employee under any Employer's annual bonus and incentive
plans.
1.3 "Annual Deferral Amount" shall mean that portion of a
Participant's Base Annual Salary, Annual Bonus and Long-Term
Incentive Award that a Participant elects to have and is
deferred in accordance with Article 3 for any one Plan Year.
In the event of a Participant's Retirement, death or a
Termination of Employment prior to the end of a Plan Year,
such year's Annual Deferral Amount shall be the actual amount
withheld prior to such event.
1.4 "Annual Installment Method" shall be an annual installment over the
number of years selected by the Participant in accordance with the Plan,
calculated as follows: The Account Balance of the Participant shall be
calculated as of the close of business on the last
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business day of the Plan Year. The annual installment shall be
calculated by multiplying this balance by a fraction, the numerator of
which is one, and the denominator of which is the remaining number of
annual payments due the Participant. By way of example, if the
Participant elects a 10 year Annual Installment Method, the first
installment shall be 1/10 of the Account Balance, calculated as
described in this definition. The following year, the installment shall
be 1/9 of the Account Balance, calculated as described in this
definition. Each annual installment shall be divided by 12, and the
resulting number shall be paid each month of the Plan Year to which such
annual installment relates. The monthly payment shall be paid as soon
as practicable after the first business day of the month to which it
relates. If the payment due at any time exceeds the Account Balance,
only the Account Balance shall be distributed to the Participant (or his
or her Beneficiary) and the Employer shall have no further liability
under the Plan. If the final monthly payment due for the entire
installment period selected by the Participant is less than the Account
Balance, the entire Account Balance shall be distributed to the
Participant (or his or her Beneficiary) and the Employer shall have no
further liability under the Plan.
1.5 "Base Annual Salary" shall mean (i) for the First Plan Year,
the annual rate of salary paid to a Participant for
employment services rendered, after reduction for
compensation voluntarily deferred or contributed by the
Participant pursuant to all other qualified or non-qualified
plans under Code Sections 125, 401(k), 402(e)(3), 402(h) or
403(b) pursuant to plans established by any Employer; and
(ii) for each succeeding Plan Year, the annual rate of salary
paid to a Participant for employment services rendered,
without reduction for compensation voluntarily deferred or
contributed by the Participant pursuant to all other
qualified or non-qualified plans under Code Section 125,
401(k), 402(e)(3), 402(h) or 403(b) pursuant to plans
established by any Employer.
1.6 "Beneficiary" shall mean one or more persons, trusts, estates
or other entities, designated in accordance with Article 8,
that are entitled to receive benefits under the Plan upon the
death of a Participant.
1.7 "Beneficiary Designation Form" shall mean the form
established from time to time by the Committee that a
Participant completes, signs and returns to the Committee to
designate one or more Beneficiaries.
1.8 "Board" shall mean the Board of Directors of the Company.
1.9 "Change in Control" shall mean the occurrence of any of the
following: an event that would be required to be reported (assuming
such event has not been "previously reported") in response to Item 1(a)
of the Current Report on Form 8-K, as in effect on the effective date
hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934; provided, however, that, without limitation, such a Change in
Control shall be deemed to
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have occurred at such time as (i) any "person" within the meaning of
Section 14(d) of the Securities Exchange Act of 1934 becomes the
"beneficial owner" as defined in Rule 13d-3 thereunder, directly or
indirectly, of more than 25% of the Company's Common Stock; (ii) during
any two-year period, individuals who constitute the Board (the
"Incumbent Board") as of the beginning of the period cease for any
reason to constitute at least a majority thereof, provided that any
person becoming a director during such period whose election or
nomination for election by the Company's stockholders was approved by a
vote of at least three-quarters of the Incumbent Board (either by a
specific vote or by approval of the proxy statement of the Company in
which such person is named as a nominee for director without objection
to such nomination) shall be, for purposes of this clause (ii),
considered as though such person were a member of the Incumbent Board;
or (iii) the approval by the Company's stockholders of the sale of all
or substantially all of the stock or assets of the Company.
1.10 "Claimant" shall have the meaning set forth in Section 13.1.
1.11 "Code" shall mean the Internal Revenue Code of 1986, as it
may be amended from time to time.
1.12 "Committee" shall mean the committee described in Article 11.
1.13 "Company" shall mean The Perkin-Elmer Corporation, a New York
corporation, and any successor to all or substantially all of
the Company's assets or business.
1.14 "Deduction Limitation" shall mean the following described
limitation on a benefit that may otherwise be distributable
pursuant to the provisions of the Plan. Except as otherwise
provided, this limitation shall be applied to all
distributions that are "subject to the Deduction Limitation"
under the Plan. If an Employer determines in good faith
prior to a Change in Control that there is a reasonable
likelihood that any compensation paid to a Participant for a
taxable year of the Employer would not be deductible by the
Employer solely by reason of the limitation under Code
Section 162(m), then to the extent deemed necessary by the
Employer to ensure that the entire amount of any distribution
to the Participant pursuant to the Plan prior to the Change
in Control is deductible, the Employer may defer all or any
portion of a distribution under the Plan. Any amounts
deferred pursuant to this limitation shall continue to be
credited/debited with additional amounts in accordance with
Section 3.7 below, even if such amount is being paid out in
installments. The amounts so deferred and amounts credited
thereon shall be distributed to the Participant or his or her
Beneficiary (in the event of the Participant's death) at the
earliest possible date, as determined by the Employer in good
faith, on which the deductibility of compensation paid or
payable to the Participant for the taxable year of the
Employer during which the distribution is made will not be
limited by Section 162(m), or if earlier, the
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effective date of a Change in Control. Notwithstanding anything to the
contrary in the Plan, the Deduction Limitation shall not apply to any
distributions made after a Change in Control. 1.15 "Deferral Account"
shall mean an account to which shall be credited (i) the sum of all of a
Participant's Annual Deferral Amounts, plus (ii) amounts credited in
accordance with all the applicable crediting provisions of the Plan that
relate to the Participant's Deferral Account, less (iii) all
distributions made to the Participant or his or her Beneficiary pursuant
to the Plan that relate to his or her Deferral Account, and less (iv)
amounts debited in accordance with all the applicable debiting
provisions of the Plan that relate to the Participant's Deferral
Account. The Deferral Account shall be a bookkeeping entry only and
shall be utilized solely as a device for the measurement and
determination of the amounts to be paid to a Participant, or his or her
designated Beneficiary, pursuant to the Plan. 1.16 "Election Form" shall
mean the form established from time to time by the Committee that a
Participant completes, signs and returns to the Committee to make an
election under the Plan.
1.17 "Employee" shall mean a person who is an employee of any
Employer.
1.18 "Employer(s)" shall mean the Company and/or any of its
subsidiaries (now in existence or hereafter formed or
acquired) that have been selected by the Board to participate
in the Plan and have adopted the Plan as a sponsor.
1.19 "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as it may be amended from time to time.
1.20 "First Plan Year" shall mean the period beginning October 1,
1996 and ending December 31, 1996.
1.21 "Long-Term Incentive Award" shall mean any compensation paid
to a Participant under The Perkin-Elmer Corporation Division
Long-Term Incentive Plan.
1.22 "Participant" shall mean any Employee (i) who is selected to
participate in the Plan, (ii) who elects to participate in
the Plan, (iii) who signs a Plan Agreement, an Election Form
and a Beneficiary Designation Form, (iv) whose signed Plan
Agreement, Election Form and Beneficiary Designation Form are
accepted by the Committee, (v) who commences participation in
the Plan, and (vi) whose Plan Agreement has not terminated. A
spouse or former spouse of a Participant shall not be treated
as a Participant in the Plan or have an Account Balance under
the Plan, even if he or she has an interest in the
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Participant's benefits under the Plan as a result of
applicable law or property settlements resulting from legal
separation or divorce.
1.23 "Plan" shall mean the Company's Deferred Compensation Plan,
which shall be evidenced by this instrument and by each Plan
Agreement, as they may be amended from time to time.
1.24 "Plan Agreement" shall mean a written agreement, as may be amended
from time to time, which is entered into by and between an Employer and
a Participant. Each Plan Agreement executed by a Participant and the
Participant's Employer shall provide for the entire benefit to which
such Participant is entitled under the Plan. Should there be more than
one Plan Agreement, the Plan Agreement bearing the latest date of
acceptance by the Committee shall supersede all previous Plan Agreements
in their entirety and shall govern such entitlement. The terms of any
Plan Agreement may be different for any Participant, and any
Plan Agreement may provide additional benefits not set forth in the Plan
or limit the benefits otherwise provided under the Plan; provided,
however, that any such additional benefits or benefit limitations must
be agreed to by both the Employer and the Participant.
1.25 "Plan Year" shall, except for the First Plan Year, mean a
period beginning on January 1 of each calendar year and
continuing through December 31 of such calendar year.
1.26 "Pre-Retirement Survivor Benefit" shall mean the benefit set
forth in Article 6.
1.27 "Retirement," "Retire(s)" or "Retired" shall mean, with
respect to an Employee, severance from employment from all
Employers for any reason, other than an authorized leave of
absence or death, on or after the earlier of the attainment
of (i) age sixty-five (65) or (ii) age fifty-five (55) with
five (5) Years of Service.
1.28 "Retirement Benefit" shall mean the benefit set forth in
Article 5.
1.29 "Short-Term Payout" shall mean the payout set forth in
Section 4.1.
1.30 "Termination Benefit" shall mean the benefit set forth in
Article 7.
1.31 "Termination of Employment" shall mean the severing of
employment with all Employers, voluntarily or involuntarily,
for any reason other than Retirement, death or an authorized
leave of absence.
1.32 "Trust" shall mean the trust established or to be established
pursuant to that certain Master Trust Agreement between the
Company and the trustee named therein, as amended from
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time to time, which is intended to be a Rabbi Trust within the
meaning of Rev. Proc. 95-62.
1.33 "Unforeseeable Financial Emergency" shall mean an
unanticipated emergency that is caused by an event beyond the
control of the Participant that would result in severe
financial hardship to the Participant resulting from (i) a
sudden and unexpected illness or accident of the Participant
or a dependent of the Participant, (ii) a loss of the
Participant's property due to casualty, or (iii) such other
extraordinary and unforeseeable circumstances arising as a
result of events beyond the control of the Participant, all
as determined in the sole discretion of the Committee.
1.34 "Years of Service" shall mean the total number of full years
in which a Participant has been employed by one or more
Employers. For purposes of this definition, a year of
employment shall be a 365 day period (or 366 day period in
the case of a leap year) that, for the first year of
employment, commences on the Employee's date of hiring and
that, for any subsequent year, commences on an anniversary of
that hiring date. Any partial year of employment shall not
be counted.
ARTICLE 2
Selection; Enrollment; Eligibility
2.1 Selection by Committee. Participation in the Plan shall be
limited to a select group of management or highly compensated
Employees of the Employers, as determined by the Committee in
its sole discretion. From that group, the Committee shall
select, in its sole discretion, Employees to participate in
the Plan.
2.2 Enrollment Requirements. As a condition to participation,
each selected Employee shall complete, execute and return to
the Committee a Plan Agreement, an Election Form and a
Beneficiary Designation Form, all within 30 days after he or
she is selected to participate in the Plan. In addition, the
Committee shall establish from time to time such other
enrollment requirements as it determines in its sole
discretion are necessary.
2.3 Eligibility; Commencement of Participation. Provided an
Employee selected to participate in the Plan has met all
enrollment requirements set forth in the Plan and required by
the Committee, including returning all required documents to
the Committee within the specified time period, that Employee
shall commence participation in the Plan on the first day of
the month following the month in which the Employee completes
all enrollment requirements. If an Employee fails to meet
all such requirements within the period required, in accordance
with Section 2.2, that Employee shall not be eligible to
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participate in the Plan until the first day of
the Plan Year following the delivery to and acceptance by the
Committee of the required documents.
2.4 Termination of Participation and/or Deferrals. If the
Committee determines in good faith that a Participant no
longer qualifies as a member of a select group of management
or highly compensated employees, as membership in such group
is determined in accordance with Sections 201(2), 301(a)(3)
and 401(a)(1) of ERISA, the Committee shall have the right,
in its sole discretion, to (i) terminate any deferral
election the Participant has made for the Plan Year in which
the Participant's membership status changes, (ii) prevent the
Participant from making future deferral elections and/or
(iii) immediately distribute the Participant's then Account
Balance as a Termination Benefit and terminate the
Participant's participation in the Plan. In addition, if the
Committee determines in good faith that the aggregate amount
of a Participant's deferral election for a particular Plan
Year will or may cause any qualified plan maintained by the
Company (or any affiliated entity) to fail to meet the
applicable non-discrimination tests under Code Sections
401(a)(4), 410(b), 401(k) or 401(m) or any successor
provisions or similar non-discrimination provisions of the
Code, the Committee may reduce or terminate the Participant's
deferral election for that Plan Year to the extent necessary
to meet the relevant non-discrimination tests. All
determinations under this Section 2.4 shall be in the sole
discretion of the Committee and shall be final and binding on
the Participant.
ARTICLE 3
Deferral Commitments; Crediting; Taxes
3.1 Minimum Deferral.
(a) Base Annual Salary, Annual Bonus and Long-Term Incentive
Award. For each Plan Year, a Participant may elect to
defer, as his or her Annual Deferral Amount, Base Annual
Salary, Annual Bonus and/or Long-Term Incentive Award in
the following minimum amounts for each deferral elected:
Deferral Minimum Amount
Base Annual Salary $2,000
Annual Bonus $5,000
Long-Term Incentive Award $5,000
If an election is made for less than stated minimum
amounts, or if no election is made, the amount deferred
shall be zero.
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Notwithstanding the foregoing, a Participant may not
elect to defer any portion of his or her Long-Term
Incentive Award otherwise payable in 1999 after December
31, 1997.
(b) Short Plan Year. Notwithstanding the foregoing, if a
Participant first becomes a Participant in the First
Plan Year or after the first day of any subsequent Plan
Year, the minimum Base Annual Salary deferral shall be
an amount equal to the minimum set forth above,
multiplied by a fraction, the numerator of which is the
number of complete months remaining in the Plan Year and
the denominator of which is 12.
3.2 Maximum Deferral.
(a) Base Annual Salary, Annual Bonus and Long-Term Incentive
Award. Subject to Section 3.1, for each Plan Year, a
Participant may elect to defer, as his or her Annual
Deferral Amount, Base Annual Salary, Annual Bonus and/or
Long-Term Incentive Award up to the following maximum
percentages for each deferral elected:
Deferral Maximum Amount
Base Annual Salary 100%
Annual Bonus 100%
Long-Term Incentive Award 100%
Subject to the foregoing, if a Participant first becomes
a Participant in the First Plan Year or after the first
day of any subsequent Plan Year, the maximum Annual
Deferral Amount, with respect to Base Annual Salary,
Annual Bonus and Long-Term Incentive Award shall be
limited to the amount of compensation not yet earned by
the Participant as of the date the Participant submits a
Plan Agreement and Election Form to the Committee for
acceptance.
3.3 Election to Defer; Effect of Election Form.
(a) First Year. In connection with a Participant's
commencement of participation in the Plan, the
Participant shall make an irrevocable deferral election
for the Plan Year in which the Participant commences
participation in the Plan, along with such other
elections as the Committee deems necessary or desirable
under the Plan. For these elections to be valid, the
Election Form must be completed and signed by the
Participant, timely delivered to the Committee (in
accordance with Section 2.2 above) and accepted by the
Committee.
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(b) Subsequent Plan Years. For each succeeding Plan Year,
an irrevocable deferral election for that Plan Year, and
such other elections as the Committee deems necessary or
desirable under the Plan, shall be made by timely
delivering to the Committee, in accordance with its
rules and procedures, before the end of the Plan Year
preceding the Plan Year for which the election is made,
a new Election Form. If no Election Form is timely
delivered for a Plan Year, no Annual Deferral Amount
shall be withheld for that Plan Year.
3.4 Withholding of Annual Deferral Amounts. For each Plan Year,
the Base Annual Salary portion of the Annual Deferral Amount
shall be withheld from each regularly scheduled Base Annual
Salary payroll in equal amounts, as adjusted from time to
time for increases and decreases in Base Annual Salary. The
Annual Bonus and/or Long-Term Incentive Award portion of the
Annual Deferral Amount shall be withheld at the time the
Annual Bonus or Long-Term Incentive Award, as the case may
be, is or otherwise would be paid to the Participant, whether
or not this occurs during the Plan Year itself.
3.5 Investment of Trust Assets. The Trustee of the Trust shall be
authorized, upon written instructions received from the
Committee or investment manager appointed by the Committee,
to invest and reinvest the assets of the Trust in accordance
with the applicable Trust Agreement, including the
disposition of stock and reinvestment of the proceeds in one
or more investment vehicles designated by the Committee.
3.6 Vesting. A Participant shall at all times be 100% vested in
his or her Deferral Account.
3.7 Crediting/Debiting of Account Balances. In accordance with,
and subject to, the rules and procedures that are established
from time to time by the Committee, in its sole discretion,
amounts shall be credited or debited to a Participant's
Account Balance in accordance with the following rules:
(a) Election of Measurement Funds. A Participant, in
connection with his or her initial deferral election in
accordance with Section 3.3 above, shall elect, on the
Election Form, one or more Measurement Fund(s) (as described
in Section 3.7(c) below) to be used to determine the
additional amounts to be credited to his or her Account
Balance for the first calendar quarter or portion thereof in
which the Participant commences participation in the Plan
and continuing thereafter for each subsequent calendar
quarter in which the Participant participates in the Plan,
unless changed in accordance with the next sentence.
Commencing with the first calendar quarter that follows the
Participant's commencement of participation in the Plan and
continuing thereafter for each subsequent calendar quarter
in which the Participant participates in the Plan, no later
than the next to last business day of the calendar quarter, the
Participant may (but is not required to) elect, by submitting an
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Election Form to the Committee that is accepted by the
Committee, to add or delete one or more Measurement Fund(s) to be used
to determine the additional amounts to be credited to his or her Account
Balance, or to change the portion of his or her Account Balance
allocated to each previously or newly elected Measurement Fund. If an
election is made in accordance with the previous sentence, it shall
apply to the next calendar quarter and continue thereafter for each
subsequent calendar quarter in which the Participant participates in the
Plan, unless changed in accordance with the previous sentence.
(b) Proportionate Allocation. In making any election
described in Section 3.7(a) above, the Participant shall
specify on the Election Form, in increments of five
percentage points (5%), the percentage of his or her
Account Balance to be allocated to a Measurement Fund
(as if the Participant was making an investment in that
Measurement Fund with that portion of his or her Account
Balance).
(c) Measurement Funds. A Participant may elect one or more
of the measurement funds described on Schedule A to the
Plan (the "Measurement Funds") for the purpose of
crediting additional amounts to his or her Account
Balance. As necessary, the Committee may, in its sole
discretion, discontinue, substitute or add a Measurement
Fund. Each such action will take effect as of the first
day of the calendar quarter that follows by thirty (30)
days the day on which the Committee gives Participants
advance written notice of such change.
(d) Crediting or Debiting Method. The performance of each
elected Measurement Fund (either positive or negative)
will be determined by the Committee, in its reasonable
discretion, based on the performance of the Measurement
Funds themselves. A Participant's Account Balance shall
be credited or debited on a daily basis based on the
performance of each Measurement Fund selected by the
Participant, as determined by the Committee in its sole
discretion, as though (i) a Participant's Account
Balance were invested in the Measurement Fund(s)
selected by the Participant, in the percentages
applicable to such calendar quarter, as of the close of
business on the first business day of such calendar
quarter, at the closing price on such date; (ii) the
portion of the Annual Deferral Amount that was actually
deferred during any calendar quarter were invested in
the Measurement Fund(s) selected by the Participant, in
the percentages applicable to such calendar quarter, as
of the close of business on the business day on which
such amounts are actually deferred from the
Participant's Base Annual Salary, Annual Bonus and/or
Long-Term Incentive Award through reductions in his or
her payroll, at the closing price on such date;
and (iii) any distribution made to a Participant that
decreases such Participant's Account Balance ceased
being invested in the Measurement Fund(s),
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in the percentages applicable to such calendar quarter, as
of the business day prior to the distribution, at the
closing price on such date.
(e) No Actual Investment. Notwithstanding any other
provision of the Plan that may be interpreted to the
contrary, the Measurement Funds are to be used for
measurement purposes only, and a Participant's election
of any such Measurement Fund, the allocation to his or
her Account Balance thereto, the calculation of
additional amounts and the crediting or debiting of such
amounts to a Participant's Account Balance shall not be
considered or construed in any manner as an actual
investment of his or her Account Balance in any such
Measurement Fund. In the event that the Company or the
trustee of the Trust, in its own discretion, decides to
invest funds in any or all of the Measurement Funds, no
Participant shall have any rights in or to such
investments themselves. Without limiting the foregoing,
a Participant's Account Balance shall at all times be a
bookkeeping entry only and shall not represent any
investment made on his or her behalf by the Company or
the Trust; the Participant shall at all times remain an
unsecured creditor of the Company.
3.8 FICA, Other Taxes and Deductions. For each Plan Year in
which an Annual Deferral Amount is being withheld from a
Participant, the Participant's Employer(s) shall withhold
from that portion of the Participant's Base Annual Salary,
Annual Bonus and Long-Term Incentive Award that is not being
deferred, in a manner determined by the Employer(s), the
Participant's share of FICA and other employment taxes on
such Annual Deferral Amount, as well as the Participant's
share of the cost of any employee benefits or other items
which would otherwise be deducted from the Participant's pay
in the absence of such deferral. If necessary, the Committee
may reduce the Annual Deferral Amount in order to comply with
this Section 3.8.
3.9 Distributions. The Participant's Employer(s) or the trustee
of the Trust shall withhold from any payments made to a
Participant under the Plan all federal, state and local
income, employment and other taxes required to be withheld by
the Employer(s) or the trustee of the Trust in connection
with such payments, in amounts and in a manner to be
determined in the sole discretion of the Employer(s) and the
trustee of the Trust.
ARTICLE 4
Short-Term Payout; Unforeseeable Financial Emergencies; Withdrawal
Election
4.1 Short-Term Payout. In connection with each election to
defer an Annual Deferral Amount, a Participant may
irrevocably elect to receive a future "Short-Term Payout"
from the Plan with respect to such Annual Deferral Amount.
Subject to the Deduction
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Limitation, the Short-Term Payout shall be a lump sum
payment in an amount that is equal to the Annual Deferral
Amount plus amounts credited or debited in the manner
provided in Section 3.7 above on that amount, determined at
the time that the Short-Term Payout becomes payable (rather
than the date of a Termination of Employment). Subject to
the Deduction Limitation and the other terms and conditions
of the Plan, each Short-Term Payout elected shall be paid
within 60 days after the first day of any Plan Year
designated by the Participant that is at least 3 years after
the first day of the Plan Year in which the Annual Deferral
Amount is actually deferred.
4.2 Other Benefits Take Precedence Over Short-Term Payout.
Should an event occur that triggers a benefit under Article
5, 6 or 7, any Annual Deferral Amount, plus amounts credited
or debited thereon, that is subject to a Short-Term Payout
election under Section 4.1 shall not be paid in accordance
with Section 4.1 but shall be paid in accordance with the
other applicable Article.
4.3 Withdrawal Payout; Suspensions for Unforeseeable Financial
Emergencies. If the Participant experiences an
Unforeseeable Financial Emergency, the Participant may
petition the Committee to (i) suspend any deferrals required
to be made by a Participant and/or (ii) receive a partial or
full payout from the Plan. The payout shall not exceed the
lesser of the Participant's Account Balance, calculated as if
such Participant were receiving a Termination Benefit, or the
amount reasonably needed to satisfy the Unforeseeable
Financial Emergency. If, subject to the sole discretion of
the Committee, the petition for a suspension and/or payout is
approved, suspension shall take effect upon the date of
approval and any payout shall be made within 60 days of the
date of approval. The payment of any amount under this
Section 4.3 shall not be subject to the Deduction Limitation.
4.4 Withdrawal Election. A Participant (or, after a
Participant's death, his or her Beneficiary) may elect, at
any time, to withdraw all of his or her Account Balance,
calculated as if there had occurred a Termination of
Employment as of the day of the election, less a withdrawal
penalty equal to 10% of such amount (the net amount shall be
referred to as the "Withdrawal Amount"). This election can
be made at any time, before or after Retirement, death or
Termination of Employment, and whether or not the Participant
(or Beneficiary) is in the process of being paid pursuant to
an installment payment schedule. No partial withdrawals of
the Withdrawal Amount shall be allowed. The Participant (or
his or her Beneficiary) shall make this election by giving
the Committee advance written notice of the election in a
form determined from time to time by the Committee. The
Participant (or his or her Beneficiary) shall be paid the
Withdrawal Amount within 60 days of his or her election.
Once the Withdrawal Amount is paid, the Participant's
participation in the Plan shall terminate and the Participant
shall not be eligible to participate in the Plan in the
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future. The payment of this Withdrawal Amount shall not be
subject to the Deduction Limitation.
ARTICLE 5
Retirement Benefit
5.1 Retirement Benefit. A Participant who Retires shall
receive, as a Retirement Benefit, his or her Account Balance,
subject to the Deduction Limitation.
5.2 Payment of Retirement Benefit. A Participant, in connection
with his or her commencement of participation in the Plan,
shall elect on an Election Form to receive the Retirement
Benefit in a lump sum or pursuant to an Annual Installment
Method of 5, 10 or 15 years. The Participant may annually
change his or her election to an allowable alternative payout
period by submitting a new Election Form to the Committee,
provided that any such Election Form is submitted at least
3 years prior to the Participant's Retirement and is accepted
by the Committee in its sole discretion. The Election Form
most recently accepted by the Committee shall govern the
payout of the Retirement Benefit. If a Participant does not
make any election with respect to the payment of the
Retirement Benefit, then such benefit shall be payable in a
lump sum. The lump sum payment shall be made, or installment
payments shall commence, no later than 60 days after the date
on which the Participant Retires. Any payment made shall be
subject to the Deduction Limitation.
5.3 Death Prior to Completion of Retirement Benefit. If a
Participant dies after Retirement but before the Retirement
Benefit is paid in full, the Participant's unpaid Retirement
Benefit payments shall continue and shall be paid to the
Participant's Beneficiary (i) over the remaining number of
years and in the same amounts as that benefit would have been
paid to the Participant had the Participant survived, or
(ii) in a lump sum, if requested by the Beneficiary and
permitted in the sole discretion of the Committee, that is
equal to the Participant's unpaid remaining Account Balance.
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ARTICLE 6
Pre-Retirement Survivor Benefit
6.1 Pre-Retirement Survivor Benefit. If a Participant dies
before he or she Retires or experiences a Termination of
Employment, the Participant's Beneficiary shall receive a
Pre-Retirement Survivor Benefit equal to the Participant's
Account Balance, subject to the Deduction Limitation.
6.2 Payment of Pre-Retirement Survivor Benefit. A Participant,
in connection with his or her commencement of participation
in the Plan, shall elect on an Election Form whether the Pre-
Retirement Survivor Benefit shall be received by his or her
Beneficiary in a lump sum or pursuant to an Annual
Installment Method of 5, 10 or 15 years. The Participant may
annually change this election to an allowable alternative
payout period by submitting a new Election Form to the
Committee, which form must be accepted by the Committee in
its sole discretion. The Election Form most recently
accepted by the Committee prior to the Participant's death
shall govern the payout of the Participant's Pre-Retirement
Survivor Benefit. If a Participant does not make any
election with respect to the payment of the Pre-Retirement
Survivor Benefit, then such benefit shall be paid in a lump
sum. Notwithstanding the foregoing, payment of the Pre-
Retirement Survivor Benefit may be made, in the sole
discretion of the Committee, in a lump sum or pursuant to an
Annual Installment Method of not more than 5 years. The lump
sum payment shall be made, or installment payments shall
commence, no later than 60 days after the date on which the
Committee is provided with proof that is satisfactory to the
Committee, in its sole discretion, of the Participant's
death. Any payment made shall be subject to the Deduction
Limitation.
ARTICLE 7
Termination Benefit
7.1 Termination Benefit. If a Participant experiences a
Termination of Employment prior to his or her Retirement or
death, the Participant shall receive a Termination Benefit
equal to the Participant's Account Balance, subject to the
Deduction Limitation.
7.2 Payment of Termination Benefit. If the Participant's
Account Balance at the time of his or her Termination of
Employment is less than $25,000, payment of his or her
Termination Benefit shall be paid in a lump sum. If his or
her Account Balance at such time is equal to or greater than
that amount, the Committee, in its sole discretion, may cause
the Termination Benefit to be paid in a lump sum or pursuant
to an Annual Installment Method that does not exceed 5 years.
The lump sum payment shall be made, or installment payments shall
commence, no later than 60 days after the date of the Participant's
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Termination of Employment. Any payment made shall be
subject to the Deduction Limitation.
ARTICLE 8
Beneficiary Designation
8.1 Beneficiary. Each Participant shall have the right, at any
time, to designate his or her Beneficiary(ies) (both primary
as well as contingent) to receive any benefits payable under
the Plan to a beneficiary upon the death of a Participant.
The Beneficiary designated under the Plan may be the same as
or different from the Beneficiary designation under any other
plan of an Employer in which the Participant participates.
8.2 Beneficiary Designation; Change; Spousal Consent. A
Participant shall designate his or her Beneficiary by
completing and signing the Beneficiary Designation Form, and
returning it to the Committee or its designated agent. A
Participant shall have the right to change a Beneficiary by
completing, signing and otherwise complying with the terms of
the Beneficiary Designation Form and the Committee's rules
and procedures, as in effect from time to time. If a married
Participant names someone other than his or her spouse as a
Beneficiary, a spousal consent, in the form designated by the
Committee, must be signed by that Participant's spouse and
returned to the Committee. Upon the acceptance by the
Committee of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be canceled.
The Committee shall be entitled to rely on the last
Beneficiary Designation Form filed by the Participant and
accepted by the Committee prior to his or her death.
8.3 Acknowledgment. No designation or change in designation of
a Beneficiary shall be effective until received and
acknowledged in writing by the Committee or its designated
agent.
8.4 No Beneficiary Designation. If a Participant fails to
designate a Beneficiary as provided in Sections 8.1, 8.2 and
8.3 above, or if all designated Beneficiaries predecease the
Participant or die prior to complete distribution of the
Participant's benefits, then the Participant's designated
Beneficiary shall be deemed to be his or her surviving
spouse. If the Participant has no surviving spouse, the
benefits remaining under the Plan to be paid to a Beneficiary
shall be payable to the executor or personal representative
of the Participant's estate.
8.5 Doubt as to Beneficiary. If the Committee has any doubt as
to the proper Beneficiary to receive payments pursuant to the
Plan, the Committee shall have the right, exercisable in
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its discretion, to cause the Participant's Employer to withhold
such payments until this matter is resolved to the
Committee's satisfaction.
8.6 Discharge of Obligations. The payment of benefits under
the Plan to a Beneficiary shall fully and completely
discharge all Employers and the Committee from all further
obligations under the Plan with respect to the Participant,
and that Participant's Plan Agreement shall terminate upon
such full payment of benefits.
ARTICLE 9
Leave of Absence
9.1 Paid Leave of Absence. If a Participant is authorized by
the Participant's Employer for any reason to take a paid
leave of absence from the employment of the Employer, the
Participant shall continue to be considered employed by the
Employer and the Annual Deferral Amount shall continue to be
withheld during such paid leave of absence in accordance with
Section 3.3.
9.2 Unpaid Leave of Absence. If a Participant is authorized by
the Participant's Employer for any reason to take an unpaid
leave of absence from the employment of the Employer, the
Participant shall continue to be considered employed by the
Employer and the Participant shall be excused from making
deferrals until the earlier of the date the leave of absence
expires or the Participant returns to a paid employment
status. Upon such expiration or return, deferrals shall
resume for the remaining portion of the Plan Year in which
the expiration or return occurs, based on the deferral
election, if any, made for that Plan Year. If no election
was made for that Plan Year, no deferral shall be withheld.
ARTICLE 10
Termination, Amendment or Modification
10.1 Termination. Although each Employer anticipates that
it will continue the Plan for an indefinite period of time,
there is no guarantee that any Employer will continue the
Plan or will not terminate the Plan at any time in the
future. Accordingly, each Employer reserves the right to
discontinue its sponsorship of the Plan and/or to terminate
the Plan at any time with respect to its participating
Employees by action of its board of directors. Upon the
termination of the Plan with respect to any Employer, the
Plan Agreements of the affected Participants who are
employed by that Employer shall terminate and their Account
Balances, determined as if they had experienced a
Termination of Employment on the date of Plan termination
or, if Plan termination occurs after the date upon which a
Participant was eligible to Retire, then with respect to
that Participant as if he or she had Retired on the
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date of Plan termination, shall be paid to the Participants
as follows: Prior to a Change in Control, an Employer shall
have the right, in its sole discretion, and notwithstanding
any elections made by the Participant, to pay such benefits
in a lump sum or pursuant to an Annual Installment Method of
up to 15 years, with amounts credited and debited during the
installment period as provided in Section 3.7. After a
Change in Control, the Employer shall be required to pay
such benefits in a lump sum. The termination of the Plan
shall not adversely affect any Participant or Beneficiary
who has become entitled to the payment of any benefits under
the Plan as of the date of termination; provided, however,
that the Employer shall have the right to accelerate
installment payments without a premium or prepayment penalty
by paying the Account Balance in a lump sum or pursuant to
an Annual Installment Method using fewer years (provided
that the present value of all payments that will have been
received by a Participant at any given point of time under
the different payment schedule shall equal or exceed the
present value of all payments that would have been received
at that point in time under the original payment schedule).
10.2 Amendment. Any Employer may, at any time, amend or
modify the Plan in whole or in part with respect to that
Employer by the action of its board of directors; provided,
however, that no amendment or modification shall, without
the consent of each Participant affected thereby, (i) modify
the obligation of the Employer to pay benefits under the
Plan in a lump sum upon the termination of the Plan
following a Change in Control, (ii) decrease or restrict the
value of a Participant's Account Balance in existence at the
time the amendment or modification is made, calculated as if
the Participant had experienced a Termination of Employment
as of the effective date of the amendment or modification
or, if the amendment or modification occurs after the date
upon which the Participant was eligible to Retire, the
Participant had Retired as of the effective date of the
amendment or modification, or (iii) modify this Section
10.2. The amendment or modification of the Plan shall not
affect any Participant or Beneficiary who has become
entitled to the payment of benefits under the Plan as of the
date of the amendment or modification; provided, however,
that the Employer shall have the right to accelerate
installment payments by paying the Account Balance in a lump
sum or pursuant to an Annual Installment Method using fewer
years (provided that the present value of all payments that
will have been received by a Participant at any given point
of time under the different payment schedule shall equal or
exceed the present value of all payments that would have
been received at that point in time under the original
payment schedule).
10.3 Plan Agreement. Notwithstanding the provisions of
Sections 10.1 and 10.2 above, if a Participant's Plan
Agreement contains benefits or limitations that are not in
the Plan document, the Employer may only amend or terminate
such provisions in accordance with any limitations or
requirements imposed with respect to the amendment or
termination of such benefits or, in any case, with the
consent of the Participant.
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10.4 Effect of Payment. The full payment of the applicable
benefit under Articles 4, 5, 6, or 7 of the Plan shall
completely discharge all obligations to a Participant and his
or her designated Beneficiaries under the Plan and the
Participant's Plan Agreement shall terminate.
ARTICLE 11
Administration
11.1 Committee Duties. The Plan shall be administered by a Committee
which shall consist of the Board, or such committee as the Board shall
appoint. Members of the Committee may be Participants under the Plan.
The Committee shall also have the discretion and authority to (i) make,
amend, interpret, and enforce all appropriate rules and regulations for
the administration of the Plan and (ii) decide or resolve any and all
questions, including interpretations of the Plan, as may arise in
connection with the Plan. Any individual serving on the Committee who
is a Participant shall not vote or act on any matter relating solely
to himself or herself. When making a determination or calculation, the
Committee shall be entitled to rely on information furnished by a
Participant or the Company.
11.2 Agents. In the administration of the Plan, the Committee
may, from time to time, employ agents and delegate to them
such administrative duties as it sees fit (including acting
through a duly appointed representative) and may from time to
time consult with counsel who may be counsel to any Employer.
11.3 Binding Effect of Decisions. The decision or action of the
Committee with respect to any question arising out of or in
connection with the administration, interpretation and
application of the Plan and the rules and regulations
promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.
11.4 Indemnity of Committee. All Employers shall indemnify and
hold harmless the members of the Committee and any Employee
to whom the duties of the Committee may be delegated against
any and all claims, losses, damages, expenses or liabilities
arising from any action or failure to act with respect to the
Plan, except in the case of willful misconduct by the
Committee or any of its members or any such Employee.
11.5 Employer Information. To enable the Committee to perform
its functions, the Company and each Employer shall supply
full and timely information to the Committee on all matters
relating to the compensation of its Participants, the date
and circumstances of the Retirement, death or Termination of
Employment of its Participants, and such other pertinent
information as the Committee may reasonably require.
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<PAGE>
ARTICLE 12
Other Benefits and Agreements
12.1 Coordination with Other Benefits. The benefits provided for a
Participant and Participant's Beneficiary under the Plan are
in addition to any other benefits available to such
Participant under any other plan or program for employees of
the Participant's Employer. The Plan shall supplement and
shall not supersede, modify or amend any other such plan or
program except as may otherwise be expressly provided.
ARTICLE 13
Claims Procedures
13.1 Presentation of Claim. Any Participant or Beneficiary of a
deceased Participant (such Participant or Beneficiary being
referred to below as a "Claimant") may deliver to the
Committee a written claim for a determination with respect to
the amounts distributable to such Claimant from the Plan. If
such a claim relates to the contents of a notice received by
the Claimant, the claim must be made within 60 days after
such notice was received by the Claimant. All other
claims must be made within 180 days of the date on which the event
that caused the claim to arise occurred. The claim must
state with particularity the determination desired by the
Claimant.
13.2 Notification of Decision. The Committee shall consider a
Claimant's claim within a reasonable time, and shall notify
the Claimant in writing:
(a) that the Claimant's requested determination has been
made, and that the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in
whole or in part, to the Claimant's requested
determination, and such notice must set forth in a
manner calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim,
or any part of it;
(ii) specific reference(s) to pertinent provisions of
the Plan upon which such denial was based;
(iii) a description of any additional material or
information necessary for the Claimant to perfect
the claim, and an explanation of why such material
or information is necessary; and
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(iv) an explanation of the claim review procedure set
forth in Section 13.3 below.
13.3 Review of a Denied Claim. Within 60 days after receiving a
notice from the Committee that a claim has been denied, in
whole or in part, a Claimant (or the Claimant's duly
authorized representative) may file with the Committee a
written request for a review of the denial of the claim.
Thereafter, but not later than 30 days after the review
procedure began, the Claimant (or the Claimant's duly
authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole
discretion, may grant.
13.4 Decision on Review. The Committee shall render its
decision on review promptly, and not later than 60 days after
the filing of a written request for review of the denial,
unless a hearing is held or other special circumstances
require additional time, in which case the Committee's
decision must be rendered within 120 days after such date.
Such decision must be written in a manner calculated to be
understood by the Claimant, and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions
upon which the decision was based; and
(c) such other matters as the Committee deems relevant.
13.5 Legal Action. A Claimant's compliance with the foregoing
provisions of this Article 13 is a mandatory prerequisite to
a Claimant's right to commence any legal action with respect
to any claim for benefits under the Plan.
ARTICLE 14
Trust
14.1 Establishment of the Trust. The Company shall establish
the Trust, and each Employer may transfer over to the Trust
such assets as the Employer determines, in its sole
discretion, are necessary to provide, on a present value
basis, for its respective future liabilities created with
respect to the Annual Deferral Amounts.
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14.2 Interrelationship of the Plan and the Trust. The provisions
of the Plan and the Plan Agreement shall govern the rights of
a Participant to receive distributions pursuant to the Plan.
The provisions of the Trust shall govern the rights of the
Employers, Participants and the creditors of the Employers to
the assets transferred to the Trust. Each Employer shall at
all times remain liable to carry out its obligations under
the Plan.
14.3 Distributions From the Trust. Each Employer's obligations
under the Plan may be satisfied with Trust assets distributed
pursuant to the terms of the Trust, and any such distribution
shall reduce the Employer's obligations under the Plan.
ARTICLE 15
Miscellaneous
15.1 Status of Plan. The Plan is intended to be a plan that is
not qualified within the meaning of Code Section 401(a) and
that "is unfunded and is maintained by an employer primarily
for the purpose of providing deferred compensation for a
select group of management or highly compensated employees"
within the meaning of ERISA Sections 201(2), 301(a)(3) and
401(a)(1). The Plan shall be administered and interpreted to
the extent possible in a manner consistent with that intent.
15.2 Unsecured General Creditor. Participants and their Bene-
ficiaries, heirs, successors and assigns shall have no legal
or equitable rights, interests or claims in any property or
assets of an Employer. For purposes of the payment of
benefits under the Plan, any and all of an Employer's assets
shall be, and remain, the general, unpledged unrestricted
assets of the Employer. An Employer's obligation under the
Plan shall be merely that of an unfunded and unsecured
promise to pay money in the future.
15.3 Employer's Liability. An Employer's liability for the
payment of benefits shall be defined only by the Plan and the
Plan Agreement, as entered into between the Employer and a
Participant. An Employer shall have no obligation to a
Participant under the Plan except as expressly provided in
the Plan and his or her Plan Agreement.
15.4 Nonassignability. Neither a Participant nor any other
person shall have any right to commute, sell, assign,
transfer, pledge, anticipate, mortgage or otherwise encumber,
transfer, hypothecate, alienate or convey in advance of
actual receipt, the amounts, if any, payable hereunder, or
any part thereof, which are, and all rights to which are
expressly declared to be, unassignable and non-transferable.
No part of the amounts payable shall, prior to actual
payment, be subject to seizure, attachment, garnishment or
sequestration for the payment of any debts, judgments,
alimony or separate maintenance owed by a Participant or any other
person, be transferable by operation of law in the event of a
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<PAGE>
Participant's or any other person's bankruptcy or
insolvency or be transferable to a spouse as a result of a
property settlement or otherwise.
15.5 Not a Contract of Employment. The terms and conditions of
the Plan shall not be deemed to constitute a contract of
employment between any Employer and a Participant. Such
employment is hereby acknowledged to be an "at will"
employment relationship that can be terminated at any time
for any reason, or no reason, with or without cause, and with
or without notice, except as otherwise expressly provided in
a written employment agreement. Nothing in the Plan shall be
deemed to give a Participant the right to be retained in the
service of any Employer as an Employee or to interfere with
the right of any Employer to discipline or discharge the
Participant at any time.
15.6 Furnishing Information. A Participant or his or her
Beneficiary will cooperate with the Committee by furnishing
any and all information requested by the Committee and take
such other actions as may be requested in order to facilitate
the administration of the Plan and the payments of benefits
hereunder, including but not limited to taking such physical
examinations as the Committee may deem necessary.
15.7 Terms. Whenever any words are used herein in the
masculine, they shall be construed as though they were in the
feminine in all cases where they would so apply; and whenever
any words are used herein in the singular or in the plural,
they shall be construed as though they were used in the
plural or the singular, as the case may be, in all cases
where they would so apply.
15.8 Captions. The captions of the articles, sections and
paragraphs of the Plan are for convenience only and shall not
control or affect the meaning or construction of any of its
provisions.
15.9 Governing Law. Subject to ERISA, the provisions of the
Plan shall be construed and interpreted according to the
internal laws of the State of Connecticut without regard to
its conflicts of laws principles.
15.10 Notice. Any notice or filing required or permitted to
be given to the Committee under the Plan shall be sufficient
if in writing and hand-delivered, or sent by registered or
certified mail, to the address below:
The Perkin-Elmer Corporation
761 Main Avenue
Norwalk, CT 06859-0001
Attn: Vice President - Human Resources
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<PAGE>
Such notice shall be deemed given as of the date of delivery
or, if delivery is made by mail, as of the date shown on the
postmark on the receipt for registration or certification.
Any notice or filing required or permitted to be given to a
Participant under the Plan shall be sufficient if in writing
and hand-delivered, or sent by mail, to the last known
address of the Participant.
15.11 Successors. The provisions of the Plan shall bind and
inure to the benefit of the Participant's Employer and its
successors and assigns and the Participant and the
Participant's designated Beneficiaries.
15.12 Spouse's Interest. The interest in the benefits
hereunder of a spouse of a Participant who has predeceased
the Participant shall automatically pass to the Participant
and shall not be transferable by such spouse in any manner,
including but not limited to such spouse's will, nor shall
such interest pass under the laws of intestate succession.
15.13 Validity. In case any provision of the Plan shall be
illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining parts hereof, but
the Plan shall be construed and enforced as if such illegal
or invalid provision had never been inserted herein.
15.14 Incompetent. If the Committee determines in its
discretion that a benefit under the Plan is to be paid to a
minor, a person declared incompetent or to a person incapable
of handling the disposition of that person's property, the
Committee may direct payment of such benefit to the guardian,
legal representative or person having the care and custody of
such minor, incompetent or incapable person. The Committee
may require proof of minority, incompetence, incapacity or
guardianship, as it may deem appropriate, prior to
distribution of the benefit. Any payment of a benefit shall
be a payment for the account of the Participant and the
Participant's Beneficiary, as the case may be, and shall be a
complete discharge of any liability under the Plan for such
payment amount.
15.15 Court Order. The Committee is authorized to make any
payments directed by court order in any action in which the
Plan or the Committee has been named as a party. In
addition, if a court determines that a spouse or former
spouse of a Participant has an interest in the Participant's
benefits under the Plan in connection with a property
settlement or otherwise, the Committee, in its sole
discretion, shall have the right, notwithstanding any
election made by a Participant, to immediately distribute the
spouse's or former spouse's interest in the Participant's
benefits under the Plan to that spouse or former spouse.
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<PAGE>
15.16 Distribution in the Event of Taxation.
(a) In General. If, for any reason, all or any portion of a
Participant's benefits under the Plan becomes taxable to
the Participant prior to receipt, a Participant may
petition the Committee before a Change in Control, or
the trustee of the Trust after a Change in Control, for
a distribution of that portion of his or her benefit
that has become taxable. Upon the grant of such a
petition, which grant shall not be unreasonably withheld
(and, after a Change in Control, shall be granted), a
Participant's Employer shall distribute to the
Participant immediately available funds in an amount
equal to the taxable portion of his or her benefit
(which amount shall not exceed a Participant's unpaid
Account Balance under the Plan). If the petition is
granted, the tax liability distribution shall be made
within 90 days of the date when the Participant's
petition is granted. Such a distribution shall affect
and reduce the benefits to be paid under the Plan.
(b) Trust. If the Trust terminates in accordance with its
terms for tax reasons and benefits are distributed from
the Trust to a Participant in accordance therewith, the
Participant's benefits under the Plan shall be reduced
to the extent of such distributions.
15.17 Insurance. The Employers, on their own behalf or on
behalf of the trustee of the Trust, may, in their sole
discretion, apply for and procure insurance on the life of a
Participant, in such amounts and in such forms as the
Employer may choose. The Employers or the trustee of the
Trust, as the case may be, shall be the sole owner and
beneficiary of any such insurance. The Participant shall
have no interest whatsoever in any such policy or policies,
and at the request of the Employers shall submit to medical
examinations and supply such information and execute such
documents as may be required by the insurance company or
companies to whom the Employers have applied for insurance.
15.18 Legal Fees To Enforce Rights After Change in Control.
The Company and each Employer is aware that upon the
occurrence of a Change in Control, the Board or the board of
directors of a Participant's Employer (which might then be
composed of new members) or a shareholder of the Company or
the Participant's Employer, or of any successor corporation
might then cause or attempt to cause the Company, the
Participant's Employer or such successor to refuse to comply
with its obligations under the Plan and might cause or
attempt to cause the Company or the Participant's Employer to
institute, or may institute, litigation seeking to deny
Participants the benefits intended under the Plan. In these
circumstances, the purpose of the Plan could be frustrated.
Accordingly, if, following a Change in Control, it should
appear to any Participant that the Company, the Participant's
Employer or any successor corporation has failed to comply
with any of its obligations under the Plan or any agreement
thereunder or, if the Company, such Employer
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<PAGE>
or any other person takes any action to declare the Plan void or
unenforceable or institutes any litigation or other legal action
designed to deny, diminish or to recover from any
Participant the benefits intended to be provided, then the
Company and the Participant's Employer irrevocably authorize
such Participant to retain counsel of his or her choice at
the expense of the Company and the Participant's Employer
(who shall be jointly and severally liable) to represent such
Participant in connection with the initiation or defense of
any litigation or other legal action, whether by or against
the Company, the Participant's Employer or any director,
officer, shareholder or other person affiliated with the
Company, the Participant's Employer or any successor thereto
in any jurisdiction.
IN WITNESS WHEREOF, the Company has signed the Plan document
as of January 1, 1998.
THE PERKIN-ELMER CORPORATION
By: /s/ Dennis L. Winger
Dennis L. Winger
Senior Vice President, Chief Financial
Officer and Treasurer
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January 29, 1998
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 registration of $2,000,000 of Deferred Compensation
Obligations which represent unsecured obligations of the Company to pay
compensation deferred by employees under the terms of The Perkin-Elmer
Corporation Deferred Compensation Plan (the "Plan").
For purposes of the opinion expressed herein, I 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, when issued in
accordance with the terms of the Plan, the Deferred Compensation
Obligations will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
to the extent that enforceability may be limited by bankruptcy,
insolvency, or other similar laws affecting creditors' rights generally
or by general equitable principles.
No opinion is expressed with respect to the laws of any
jurisdiction other than the United States of America and the State of
New York.
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/ Thomas P. Livingston
Thomas P. Livingston
Assistant Secretary
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
January 27, 1998
