|
ý
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
¨
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
Massachusetts
|
|
04-2052042
|
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
|
Large accelerated filer
|
|
ý
|
Accelerated filer
|
|
¨
|
|
|
|
|
|
||
|
Non-accelerated filer
|
|
¨
(Do not check if a smaller reporting company)
|
Smaller reporting company
|
|
¨
|
|
|
|
Page
|
|
PART I. FINANCIAL INFORMATION
|
||
|
|
|
|
|
Item 1.
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
|
|
|
Item 2.
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
|
|
|
Item 3.
|
||
|
|
|
|
|
Item 4.
|
||
|
|
|
|
|
PART II. OTHER INFORMATION
|
|
|
|
|
|
|
|
Item 1.
|
||
|
|
|
|
|
Item 1A.
|
||
|
|
|
|
|
Item 2.
|
||
|
|
|
|
|
Item 6.
|
||
|
|
|
|
|
|
|
|
|
Item 1.
|
Financial Statements
|
|
|
Three Months Ended
|
||||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||||
|
|
|
|
(As adjusted)
|
||||
|
|
(In thousands, except
per share data)
|
||||||
|
Product revenue
|
$
|
357,194
|
|
|
$
|
306,126
|
|
|
Service revenue
|
153,696
|
|
|
141,052
|
|
||
|
Total revenue
|
510,890
|
|
|
447,178
|
|
||
|
Cost of product revenue
|
186,457
|
|
|
157,252
|
|
||
|
Cost of service revenue
|
92,419
|
|
|
89,615
|
|
||
|
Total cost of revenue
|
278,876
|
|
|
246,867
|
|
||
|
Selling, general and administrative expenses
|
156,849
|
|
|
132,695
|
|
||
|
Research and development expenses
|
32,624
|
|
|
26,185
|
|
||
|
Restructuring and contract termination charges, net
|
6,159
|
|
|
—
|
|
||
|
Operating income from continuing operations
|
36,382
|
|
|
41,431
|
|
||
|
Interest and other expense, net
|
12,830
|
|
|
5,756
|
|
||
|
Income from continuing operations before income taxes
|
23,552
|
|
|
35,675
|
|
||
|
Provision for income taxes
|
1,476
|
|
|
8,384
|
|
||
|
Net income from continuing operations
|
22,076
|
|
|
27,291
|
|
||
|
Gain (loss) on disposition of discontinued operations before income taxes
|
535
|
|
|
(1,584
|
)
|
||
|
Provision for income taxes on disposition of discontinued operations
|
42
|
|
|
794
|
|
||
|
Net income (loss) from discontinued operations and dispositions
|
493
|
|
|
(2,378
|
)
|
||
|
Net income
|
$
|
22,569
|
|
|
$
|
24,913
|
|
|
Basic earnings (loss) per share:
|
|
|
|
||||
|
Net income from continuing operations
|
$
|
0.20
|
|
|
$
|
0.24
|
|
|
Net income (loss) from discontinued operations and dispositions
|
—
|
|
|
(0.02
|
)
|
||
|
Net income
|
$
|
0.20
|
|
|
$
|
0.22
|
|
|
Diluted earnings (loss) per share:
|
|
|
|
||||
|
Net income from continuing operations
|
$
|
0.19
|
|
|
$
|
0.24
|
|
|
Net income (loss) from discontinued operations and dispositions
|
—
|
|
|
(0.02
|
)
|
||
|
Net income
|
$
|
0.20
|
|
|
$
|
0.22
|
|
|
Weighted average shares of common stock outstanding:
|
|
|
|
||||
|
Basic
|
113,097
|
|
|
113,998
|
|
||
|
Diluted
|
114,119
|
|
|
115,140
|
|
||
|
Cash dividends per common share
|
$
|
0.07
|
|
|
$
|
0.07
|
|
|
|
Three Months Ended
|
||||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||||
|
|
|
|
(As adjusted)
|
||||
|
|
(In thousands)
|
||||||
|
Net income
|
$
|
22,569
|
|
|
$
|
24,913
|
|
|
Other comprehensive income
|
|
|
|
||||
|
Foreign currency translation adjustments, net of tax
|
13,766
|
|
|
47,291
|
|
||
|
Reclassification adjustments for losses on derivatives included in net income, net of tax
|
299
|
|
|
299
|
|
||
|
Unrealized gains on securities, net of tax
|
35
|
|
|
50
|
|
||
|
Other comprehensive income
|
14,100
|
|
|
47,640
|
|
||
|
Comprehensive income
|
$
|
36,669
|
|
|
$
|
72,553
|
|
|
|
April 1,
2012 |
|
January 1,
2012 |
||||
|
|
(In thousands, except share
and per share data)
|
||||||
|
Current assets:
|
|
|
|
||||
|
Cash and cash equivalents
|
$
|
144,757
|
|
|
$
|
142,342
|
|
|
Accounts receivable, net
|
407,867
|
|
|
409,888
|
|
||
|
Inventories, net
|
251,858
|
|
|
240,763
|
|
||
|
Other current assets
|
103,380
|
|
|
69,023
|
|
||
|
Current assets of discontinued operations
|
202
|
|
|
202
|
|
||
|
Total current assets
|
908,064
|
|
|
862,218
|
|
||
|
Property, plant and equipment, net:
|
|
|
|
||||
|
At cost
|
458,233
|
|
|
451,953
|
|
||
|
Accumulated depreciation
|
(286,550
|
)
|
|
(277,386
|
)
|
||
|
Property, plant and equipment, net
|
171,683
|
|
|
174,567
|
|
||
|
Marketable securities and investments
|
1,113
|
|
|
1,105
|
|
||
|
Intangible assets, net
|
638,763
|
|
|
661,607
|
|
||
|
Goodwill
|
2,103,059
|
|
|
2,093,626
|
|
||
|
Other assets, net
|
41,556
|
|
|
41,075
|
|
||
|
Total assets
|
$
|
3,864,238
|
|
|
$
|
3,834,198
|
|
|
Current liabilities:
|
|
|
|
||||
|
Accounts payable
|
$
|
163,003
|
|
|
$
|
173,153
|
|
|
Accrued restructuring costs
|
15,056
|
|
|
13,958
|
|
||
|
Accrued expenses
|
423,517
|
|
|
411,526
|
|
||
|
Current liabilities of discontinued operations
|
1,210
|
|
|
1,429
|
|
||
|
Total current liabilities
|
602,786
|
|
|
600,066
|
|
||
|
Long-term debt
|
933,971
|
|
|
944,908
|
|
||
|
Long-term liabilities
|
444,898
|
|
|
447,008
|
|
||
|
Total liabilities
|
1,981,655
|
|
|
1,991,982
|
|
||
|
Commitments and contingencies (see Note 18)
|
|
|
|
||||
|
Stockholders’ equity:
|
|
|
|
||||
|
Preferred stock—$1 par value per share, authorized 1,000,000 shares; none issued or outstanding
|
—
|
|
|
—
|
|
||
|
Common stock—$1 par value per share, authorized 300,000,000 shares; issued and outstanding 113,831,000 shares and 113,157,000 shares at April 1, 2012 and at January 1, 2012, respectively
|
113,831
|
|
|
113,157
|
|
||
|
Capital in excess of par value
|
175,419
|
|
|
164,290
|
|
||
|
Retained earnings
|
1,525,147
|
|
|
1,510,683
|
|
||
|
Accumulated other comprehensive income
|
68,186
|
|
|
54,086
|
|
||
|
Total stockholders’ equity
|
1,882,583
|
|
|
1,842,216
|
|
||
|
Total liabilities and stockholders’ equity
|
$
|
3,864,238
|
|
|
$
|
3,834,198
|
|
|
|
Three Months Ended
|
||||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||||
|
|
|
|
(As adjusted)
|
||||
|
|
(In thousands)
|
||||||
|
Operating activities:
|
|
|
|
||||
|
Net income
|
$
|
22,569
|
|
|
$
|
24,913
|
|
|
Add: net income from discontinued operations and dispositions, net of income taxes
|
(493
|
)
|
|
2,378
|
|
||
|
Net income from continuing operations
|
22,076
|
|
|
27,291
|
|
||
|
Adjustments to reconcile net income from continuing operations to net cash provided by continuing operations:
|
|
|
|
||||
|
Restructuring and lease charges, net
|
6,159
|
|
|
—
|
|
||
|
Depreciation and amortization
|
32,007
|
|
|
23,953
|
|
||
|
Stock-based compensation
|
5,476
|
|
|
3,054
|
|
||
|
Amortization of deferred debt issuance costs
|
867
|
|
|
635
|
|
||
|
Amortization of acquired inventory revaluation
|
4,495
|
|
|
110
|
|
||
|
Changes in operating assets and liabilities which provided (used) cash, excluding effects from companies purchased and divested:
|
|
|
|
||||
|
Accounts receivable, net
|
5,850
|
|
|
24,609
|
|
||
|
Inventories, net
|
(12,970
|
)
|
|
(9,743
|
)
|
||
|
Accounts payable
|
(11,719
|
)
|
|
(16,330
|
)
|
||
|
Excess tax benefit from exercise of equity grants
|
(1,139
|
)
|
|
(7,772
|
)
|
||
|
Accrued expenses and other
|
(35,842
|
)
|
|
1,473
|
|
||
|
Net cash provided by operating activities of continuing operations
|
15,260
|
|
|
47,280
|
|
||
|
Net cash provided by (used in) operating activities of discontinued operations
|
279
|
|
|
(4,629
|
)
|
||
|
Net cash provided by operating activities
|
15,539
|
|
|
42,651
|
|
||
|
Investing activities:
|
|
|
|
||||
|
Capital expenditures
|
(5,228
|
)
|
|
(7,681
|
)
|
||
|
Payments for acquisitions and investments, net of cash and cash equivalents acquired
|
—
|
|
|
(56,602
|
)
|
||
|
Net cash used in investing activities
|
(5,228
|
)
|
|
(64,283
|
)
|
||
|
Financing activities:
|
|
|
|
||||
|
Payments on debt
|
(122,000
|
)
|
|
(118,200
|
)
|
||
|
Proceeds from borrowings
|
111,000
|
|
|
208,000
|
|
||
|
Payments of debt issuance costs
|
(279
|
)
|
|
—
|
|
||
|
Payments on other credit facilities
|
—
|
|
|
(38
|
)
|
||
|
Payments for acquisition-related contingent consideration
|
—
|
|
|
(137
|
)
|
||
|
Excess tax benefit from exercise of equity grants
|
1,139
|
|
|
7,772
|
|
||
|
Proceeds from stock options exercised
|
9,499
|
|
|
18,030
|
|
||
|
Purchases of common stock
|
(1,632
|
)
|
|
(109,224
|
)
|
||
|
Dividends paid
|
(7,922
|
)
|
|
(8,106
|
)
|
||
|
Net cash used in financing activities of continuing operations
|
(10,195
|
)
|
|
(1,903
|
)
|
||
|
Net cash used in financing activities of discontinued operations
|
—
|
|
|
(1,908
|
)
|
||
|
Net cash used in financing activities
|
(10,195
|
)
|
|
(3,811
|
)
|
||
|
Effect of exchange rate changes on cash and cash equivalents
|
2,299
|
|
|
21,205
|
|
||
|
Net increase (decrease) in cash and cash equivalents
|
2,415
|
|
|
(4,238
|
)
|
||
|
Cash and cash equivalents at beginning of period
|
142,342
|
|
|
420,086
|
|
||
|
Cash and cash equivalents at end of period
|
$
|
144,757
|
|
|
$
|
415,848
|
|
|
|
Caliper
(Preliminary)
|
||
|
|
(In thousands)
|
||
|
Fair value of business combination:
|
|
||
|
Cash payments
|
$
|
646,317
|
|
|
Less: cash acquired
|
(43,576
|
)
|
|
|
Total
|
$
|
602,741
|
|
|
Identifiable assets acquired and liabilities assumed:
|
|
||
|
Current assets
|
$
|
55,756
|
|
|
Property, plant and equipment
|
14,580
|
|
|
|
Identifiable intangible assets:
|
|
||
|
Core technology
|
52,000
|
|
|
|
Trade names
|
14,200
|
|
|
|
Licenses
|
18,000
|
|
|
|
Customer relationships
|
93,000
|
|
|
|
Goodwill
|
352,494
|
|
|
|
Deferred taxes
|
54,068
|
|
|
|
Deferred revenue
|
(7,825
|
)
|
|
|
Liabilities assumed
|
(43,532
|
)
|
|
|
Total
|
$
|
602,741
|
|
|
|
Three Months Ended
|
||
|
|
April 3,
2011 |
||
|
|
(In thousands)
|
||
|
Pro Forma Statement of Operations Information (Unaudited):
|
|
||
|
Revenue
|
$
|
482,659
|
|
|
Net income from continuing operations
|
15,857
|
|
|
|
Basic earnings per share:
|
|
||
|
Continuing operations
|
$
|
0.14
|
|
|
Diluted earnings per share:
|
|
||
|
Continuing operations
|
$
|
0.14
|
|
|
|
Three Months Ended
|
||||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||||
|
|
(In thousands)
|
||||||
|
Gain (loss) on disposition of Illumination and Detection Solutions business
|
$
|
16
|
|
|
$
|
(1,585
|
)
|
|
Gain on disposition of Photoflash business
|
507
|
|
|
4
|
|
||
|
Gain (loss) on disposition of other discontinued operations
|
12
|
|
|
(3
|
)
|
||
|
Gain (loss) on disposition of discontinued operations before income taxes
|
$
|
535
|
|
|
$
|
(1,584
|
)
|
|
|
Severance
|
|
Closure of
Excess Facility
Space
|
|
Total
|
||||||
|
|
(In thousands)
|
||||||||||
|
Provision
|
$
|
5,640
|
|
|
$
|
79
|
|
|
$
|
5,719
|
|
|
Amounts paid and foreign currency translation
|
(1,930
|
)
|
|
—
|
|
|
(1,930
|
)
|
|||
|
Balance at April 1, 2012
|
$
|
3,710
|
|
|
$
|
79
|
|
|
$
|
3,789
|
|
|
|
Severance
|
|
Closure of
Excess Facility
Space
|
|
Total
|
||||||
|
|
(In thousands)
|
||||||||||
|
Balance at January 1, 2012
|
$
|
4,674
|
|
|
$
|
370
|
|
|
$
|
5,044
|
|
|
Change in estimates
|
—
|
|
|
(135
|
)
|
|
(135
|
)
|
|||
|
Amounts paid and foreign currency translation
|
(2,005
|
)
|
|
(60
|
)
|
|
(2,065
|
)
|
|||
|
Balance at April 1, 2012
|
$
|
2,669
|
|
|
$
|
175
|
|
|
$
|
2,844
|
|
|
|
Severance
|
|
Closure of
Excess Facility
Space
|
|
Total
|
||||||
|
|
(In thousands)
|
||||||||||
|
Balance at January 1, 2012
|
$
|
1,283
|
|
|
$
|
—
|
|
|
$
|
1,283
|
|
|
Amounts paid and foreign currency translation
|
(269
|
)
|
|
—
|
|
|
(269
|
)
|
|||
|
Balance at April 1, 2012
|
$
|
1,014
|
|
|
$
|
—
|
|
|
$
|
1,014
|
|
|
|
Three Months Ended
|
||||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||||
|
|
(In thousands)
|
||||||
|
Interest income
|
$
|
(210
|
)
|
|
$
|
(322
|
)
|
|
Interest expense
|
11,437
|
|
|
3,916
|
|
||
|
Other expense, net
|
1,603
|
|
|
2,162
|
|
||
|
Total interest and other expense, net
|
$
|
12,830
|
|
|
$
|
5,756
|
|
|
|
April 1,
2012 |
|
January 1,
2012 |
||||
|
|
(In thousands)
|
||||||
|
Raw materials
|
$
|
77,722
|
|
|
$
|
72,913
|
|
|
Work in progress
|
13,767
|
|
|
14,656
|
|
||
|
Finished goods
|
160,369
|
|
|
153,194
|
|
||
|
Total inventories, net
|
$
|
251,858
|
|
|
$
|
240,763
|
|
|
|
Three Months Ended
|
||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||
|
|
(In thousands)
|
||||
|
Number of common shares—basic
|
113,097
|
|
|
113,998
|
|
|
Effect of dilutive securities:
|
|
|
|
||
|
Stock options
|
827
|
|
|
1,020
|
|
|
Restricted stock awards
|
195
|
|
|
122
|
|
|
Number of common shares—diluted
|
114,119
|
|
|
115,140
|
|
|
Number of potentially dilutive securities excluded from calculation due to antidilutive impact
|
1,506
|
|
|
1,922
|
|
|
•
|
Human Health
. Develops diagnostics, tools and applications to help detect diseases earlier and more accurately and to accelerate the discovery and development of critical new therapies. The Human Health segment serves both the diagnostics and research markets.
|
|
•
|
Environmental Health
. Provides technologies and applications to facilitate the creation of safer food and consumer products, more secure surroundings and efficient energy resources. The Environmental Health segment serves the environmental, industrial and laboratory services markets.
|
|
|
Three Months Ended
|
||||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||||
|
|
(In thousands)
|
||||||
|
Human Health
|
|
|
|
||||
|
Product revenue
|
$
|
215,830
|
|
|
$
|
168,746
|
|
|
Service revenue
|
38,131
|
|
|
32,575
|
|
||
|
Total revenue
|
253,961
|
|
|
201,321
|
|
||
|
Operating income from continuing operations
|
21,945
|
|
|
21,537
|
|
||
|
Environmental Health
|
|
|
|
||||
|
Product revenue
|
$
|
141,364
|
|
|
$
|
137,380
|
|
|
Service revenue
|
115,565
|
|
|
108,477
|
|
||
|
Total revenue
|
256,929
|
|
|
245,857
|
|
||
|
Operating income from continuing operations
|
26,395
|
|
|
30,242
|
|
||
|
Corporate
|
|
|
|
||||
|
Operating loss from continuing operations
(1)
|
$
|
(11,958
|
)
|
|
$
|
(10,348
|
)
|
|
Continuing Operations
|
|
|
|
||||
|
Product revenue
|
$
|
357,194
|
|
|
$
|
306,126
|
|
|
Service revenue
|
153,696
|
|
|
141,052
|
|
||
|
Total revenue
|
510,890
|
|
|
447,178
|
|
||
|
Operating income from continuing operations
|
36,382
|
|
|
41,431
|
|
||
|
Interest and other expense, net (see Note 5)
|
12,830
|
|
|
5,756
|
|
||
|
Income from continuing operations before income taxes
|
$
|
23,552
|
|
|
$
|
35,675
|
|
|
(1)
|
The expenses related to postretirement benefit plans have been included in the Corporate operating loss from continuing operations, and together constituted a pre-tax loss of
$1.2 million
and a pre-tax gain of
$0.2 million
for the
three
months ended
April 1, 2012
and
April 3, 2011
, respectively.
|
|
|
April 1,
2012 |
|
January 1,
2012 |
||||
|
|
(In thousands)
|
||||||
|
Foreign currency translation adjustments, net of income taxes
|
$
|
69,930
|
|
|
$
|
56,164
|
|
|
Unrecognized prior service costs, net of income taxes
|
2,169
|
|
|
2,169
|
|
||
|
Unrealized net losses on securities, net of income taxes
|
(124
|
)
|
|
(159
|
)
|
||
|
Unrealized and realized losses on derivatives, net of income taxes
|
(3,789
|
)
|
|
(4,088
|
)
|
||
|
Accumulated other comprehensive income
|
$
|
68,186
|
|
|
$
|
54,086
|
|
|
|
Three Months Ended
|
||||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||||
|
|
(In thousands)
|
||||||
|
Cost of revenue
|
$
|
276
|
|
|
$
|
260
|
|
|
Research and development expenses
|
176
|
|
|
146
|
|
||
|
Selling, general and administrative expenses
|
5,024
|
|
|
2,648
|
|
||
|
Total stock-based compensation expense
|
$
|
5,476
|
|
|
$
|
3,054
|
|
|
|
Three Months Ended
|
||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||
|
Risk-free interest rate
|
0.6
|
%
|
|
1.9
|
%
|
|
Expected dividend yield
|
1.2
|
%
|
|
1.1
|
%
|
|
Expected lives
|
4 years
|
|
|
4 years
|
|
|
Expected stock volatility
|
38.7
|
%
|
|
38.1
|
%
|
|
|
Number
of
Shares
|
|
Weighted-
Average
Price
|
|
Weighted-Average
Remaining
Contractual Term
|
|
Total
Intrinsic
Value
|
||||||
|
|
(In thousands)
|
|
|
|
(In years)
|
|
(In millions)
|
||||||
|
Outstanding at January 1, 2012
|
5,346
|
|
|
$
|
20.57
|
|
|
|
|
|
|||
|
Granted
|
686
|
|
|
26.15
|
|
|
|
|
|
||||
|
Exercised
|
(521
|
)
|
|
18.22
|
|
|
|
|
|
||||
|
Canceled
|
(203
|
)
|
|
22.21
|
|
|
|
|
|
||||
|
Forfeited
|
(4
|
)
|
|
12.95
|
|
|
|
|
|
||||
|
Outstanding at April 1, 2012
|
5,304
|
|
|
$
|
21.46
|
|
|
4.0
|
|
|
$
|
22.5
|
|
|
Exercisable at April 1, 2012
|
3,655
|
|
|
$
|
20.28
|
|
|
3.0
|
|
|
$
|
19.2
|
|
|
Vested and expected to vest in the future
|
4,843
|
|
|
$
|
21.46
|
|
|
4.0
|
|
|
$
|
20.5
|
|
|
|
Number of
Shares
|
|
Weighted-
Average
Grant-
Date Fair
Value
|
|||
|
|
(In thousands)
|
|
|
|||
|
Nonvested at January 1, 2012
|
672
|
|
|
$
|
23.62
|
|
|
Granted
|
349
|
|
|
25.83
|
|
|
|
Vested
|
(124
|
)
|
|
23.20
|
|
|
|
Forfeited
|
(8
|
)
|
|
25.15
|
|
|
|
Nonvested at April 1, 2012
|
889
|
|
|
$
|
24.53
|
|
|
|
Human
Health
|
|
Environmental
Health
|
|
Consolidated
|
||||||
|
|
(In thousands)
|
||||||||||
|
Balance at January 1, 2012
|
$
|
1,390,571
|
|
|
$
|
703,055
|
|
|
$
|
2,093,626
|
|
|
Foreign currency translation
|
6,267
|
|
|
3,166
|
|
|
9,433
|
|
|||
|
Balance at April 1, 2012
|
$
|
1,396,838
|
|
|
$
|
706,221
|
|
|
$
|
2,103,059
|
|
|
|
April 1,
2012 |
|
January 1,
2012 |
||||
|
|
(In thousands)
|
||||||
|
Patents
|
$
|
107,715
|
|
|
$
|
107,437
|
|
|
Less: Accumulated amortization
|
(86,717
|
)
|
|
(85,188
|
)
|
||
|
Net patents
|
20,998
|
|
|
22,249
|
|
||
|
Trade names and trademarks
|
34,133
|
|
|
35,214
|
|
||
|
Less: Accumulated amortization
|
(11,237
|
)
|
|
(11,086
|
)
|
||
|
Net trade names and trademarks
|
22,896
|
|
|
24,128
|
|
||
|
Licenses
|
79,999
|
|
|
79,873
|
|
||
|
Less: Accumulated amortization
|
(40,062
|
)
|
|
(37,339
|
)
|
||
|
Net licenses
|
39,937
|
|
|
42,534
|
|
||
|
Core technology
|
387,867
|
|
|
385,112
|
|
||
|
Less: Accumulated amortization
|
(222,852
|
)
|
|
(212,834
|
)
|
||
|
Net core technology
|
165,015
|
|
|
172,278
|
|
||
|
Customer relationships
|
316,457
|
|
|
316,782
|
|
||
|
Less: Accumulated amortization
|
(79,764
|
)
|
|
(69,710
|
)
|
||
|
Net customer relationships
|
236,693
|
|
|
247,072
|
|
||
|
IPR&D
|
7,179
|
|
|
7,131
|
|
||
|
Less: Accumulated amortization
|
(989
|
)
|
|
(819
|
)
|
||
|
Net IPR&D
|
6,190
|
|
|
6,312
|
|
||
|
Net amortizable intangible assets
|
491,729
|
|
|
514,573
|
|
||
|
Non-amortizing intangible assets:
|
|
|
|
||||
|
Trade names and trademarks
|
147,034
|
|
|
147,034
|
|
||
|
Totals
|
$
|
638,763
|
|
|
$
|
661,607
|
|
|
|
Three Months Ended
|
||||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||||
|
|
(In thousands)
|
||||||
|
Balance beginning of period
|
$
|
10,412
|
|
|
$
|
8,250
|
|
|
Provision charged to income
|
4,626
|
|
|
3,328
|
|
||
|
Payments
|
(4,847
|
)
|
|
(3,427
|
)
|
||
|
Adjustments to previously provided warranties, net
|
457
|
|
|
(125
|
)
|
||
|
Foreign currency translation and acquisitions
|
101
|
|
|
245
|
|
||
|
Balance end of period
|
$
|
10,749
|
|
|
$
|
8,271
|
|
|
|
Defined Benefit
Pension Benefits
|
|
Postretirement
Medical Benefits
|
||||||||||||
|
|
Three Months Ended
|
||||||||||||||
|
|
April 1,
2012 |
|
April 3,
2011 |
|
April 1,
2012 |
|
April 3,
2011 |
||||||||
|
|
(In thousands)
|
||||||||||||||
|
Service cost
|
$
|
980
|
|
|
$
|
972
|
|
|
$
|
28
|
|
|
$
|
21
|
|
|
Interest cost
|
5,815
|
|
|
6,318
|
|
|
37
|
|
|
41
|
|
||||
|
Expected return on plan assets
|
(5,142
|
)
|
|
(5,648
|
)
|
|
(219
|
)
|
|
(221
|
)
|
||||
|
Amortization of prior service costs
|
(60
|
)
|
|
(55
|
)
|
|
—
|
|
|
(63
|
)
|
||||
|
Net periodic benefit cost (credit)
|
$
|
1,593
|
|
|
$
|
1,587
|
|
|
$
|
(154
|
)
|
|
$
|
(222
|
)
|
|
|
Three Months Ended
|
||||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||||
|
|
(In thousands)
|
||||||
|
Balance beginning of period
|
$
|
(20,298
|
)
|
|
$
|
(1,731
|
)
|
|
Additions
|
—
|
|
|
(15,531
|
)
|
||
|
Payments
|
—
|
|
|
1,908
|
|
||
|
Change in fair value (included within selling, general and administrative expenses)
|
(338
|
)
|
|
(291
|
)
|
||
|
Balance end of period
|
$
|
(20,636
|
)
|
|
$
|
(15,645
|
)
|
|
Item 2.
|
Management’s Discussion and Analysis of Financial Condition and Results of Operations
|
|
•
|
Human Health
. Develops diagnostics, tools and applications to help detect diseases earlier and more accurately and to accelerate the discovery and development of critical new therapies. The Human Health segment serves both the diagnostics and research markets.
|
|
•
|
Environmental Health
. Provides technologies and applications to facilitate the creation of safer food and consumer products, more secure surroundings and efficient energy resources. The Environmental Health segment serves the environmental, industrial and laboratory services markets.
|
|
|
Severance
|
|
Closure of
Excess Facility
Space
|
|
Total
|
||||||
|
|
(In thousands)
|
||||||||||
|
Provision
|
$
|
5,640
|
|
|
$
|
79
|
|
|
$
|
5,719
|
|
|
Amounts paid and foreign currency translation
|
(1,930
|
)
|
|
—
|
|
|
(1,930
|
)
|
|||
|
Balance at April 1, 2012
|
$
|
3,710
|
|
|
$
|
79
|
|
|
$
|
3,789
|
|
|
|
Severance
|
|
Closure of
Excess Facility
Space
|
|
Total
|
||||||
|
|
(In thousands)
|
||||||||||
|
Balance at January 1, 2012
|
$
|
4,674
|
|
|
$
|
370
|
|
|
$
|
5,044
|
|
|
Change in estimates
|
—
|
|
|
(135
|
)
|
|
(135
|
)
|
|||
|
Amounts paid and foreign currency translation
|
(2,005
|
)
|
|
(60
|
)
|
|
(2,065
|
)
|
|||
|
Balance at April 1, 2012
|
$
|
2,669
|
|
|
$
|
175
|
|
|
$
|
2,844
|
|
|
|
Severance
|
|
Closure of
Excess Facility
Space
|
|
Total
|
||||||
|
|
(In thousands)
|
||||||||||
|
Balance at January 1, 2012
|
$
|
1,283
|
|
|
$
|
—
|
|
|
$
|
1,283
|
|
|
Amounts paid and foreign currency translation
|
(269
|
)
|
|
—
|
|
|
(269
|
)
|
|||
|
Balance at April 1, 2012
|
$
|
1,014
|
|
|
$
|
—
|
|
|
$
|
1,014
|
|
|
|
Three Months Ended
|
||||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||||
|
|
(In thousands)
|
||||||
|
Interest income
|
$
|
(210
|
)
|
|
$
|
(322
|
)
|
|
Interest expense
|
11,437
|
|
|
3,916
|
|
||
|
Other expense, net
|
1,603
|
|
|
2,162
|
|
||
|
Total interest and other expense, net
|
$
|
12,830
|
|
|
$
|
5,756
|
|
|
|
Three Months Ended
|
||||||
|
|
April 1,
2012 |
|
April 3,
2011 |
||||
|
|
(In thousands)
|
||||||
|
Gain (loss) on disposition of Illumination and Detection Solutions business
|
$
|
16
|
|
|
$
|
(1,585
|
)
|
|
Gain on disposition of Photoflash business
|
507
|
|
|
4
|
|
||
|
Gain (loss) on disposition of other discontinued operations
|
12
|
|
|
(3
|
)
|
||
|
Gain (loss) on disposition of discontinued operations before income taxes
|
$
|
535
|
|
|
$
|
(1,584
|
)
|
|
•
|
changes in sales due to weakness in markets in which we sell our products and services, and
|
|
•
|
changes in our working capital requirements.
|
|
•
|
financial covenants contained in the financial instruments controlling our borrowings that limit our total borrowing capacity,
|
|
•
|
increases in interest rates applicable to our outstanding variable rate debt,
|
|
•
|
a ratings downgrade that would limit our ability to borrow under our senior unsecured revolving credit facility and our overall access to the corporate debt market,
|
|
•
|
increases in interest rates or credit spreads, as well as limitations on the availability of credit, that affect our ability to borrow under future potential facilities on a secured or unsecured basis,
|
|
•
|
a decrease in the market price for our common stock, and
|
|
•
|
volatility in the public debt and equity markets.
|
|
Item 3.
|
Quantitative and Qualitative Disclosures About Market Risk
|
|
Item 4.
|
Controls and Procedures
|
|
Item 1.
|
Legal Proceedings
|
|
Item 1A.
|
Risk Factors
|
|
•
|
accurately anticipate customer needs,
|
|
•
|
innovate and develop new technologies and applications,
|
|
•
|
successfully commercialize new technologies in a timely manner,
|
|
•
|
price our products competitively, and manufacture and deliver our products in sufficient volumes and on time, and
|
|
•
|
differentiate our offerings from our competitors’ offerings.
|
|
•
|
competition among buyers and licensees,
|
|
•
|
the high valuations of businesses and technologies,
|
|
•
|
the need for regulatory and other approval, and
|
|
•
|
our inability to raise capital to fund these acquisitions.
|
|
•
|
demand for and market acceptance of our products,
|
|
•
|
competitive pressures resulting in lower selling prices,
|
|
•
|
changes in the level of economic activity in regions in which we do business,
|
|
•
|
changes in general economic conditions or government funding,
|
|
•
|
settlements of income tax audits,
|
|
•
|
differing tax laws and changes in those laws, or changes in the countries in which we are subject to taxation,
|
|
•
|
changes in our effective tax rate,
|
|
•
|
changes in industries, such as pharmaceutical and biomedical,
|
|
•
|
changes in the portions of our revenue represented by our various products and customers,
|
|
•
|
our ability to introduce new products,
|
|
•
|
our competitors’ announcement or introduction of new products, services or technological innovations,
|
|
•
|
costs of raw materials, energy or supplies,
|
|
•
|
our ability to execute ongoing productivity initiatives,
|
|
•
|
changes in the volume or timing of product orders,
|
|
•
|
fluctuation in the expense related to mark-to-market and curtailments on postretirement benefit plans, and
|
|
•
|
changes in assumptions used to determine contingent consideration in acquisitions.
|
|
•
|
changes in foreign currency exchange rates,
|
|
•
|
changes in a country’s or region’s political or economic conditions, particularly in developing or emerging markets,
|
|
•
|
longer payment cycles of foreign customers and timing of collections in foreign jurisdictions,
|
|
•
|
trade protection measures and import or export licensing requirements,
|
|
•
|
differing tax laws and changes in those laws, or changes in the countries in which we are subject to tax,
|
|
•
|
adverse income tax audit settlements or loss of previously negotiated tax incentives,
|
|
•
|
differing business practices associated with foreign operations,
|
|
•
|
difficulty in transferring cash between international operations and the United States,
|
|
•
|
difficulty in staffing and managing widespread operations,
|
|
•
|
differing labor laws and changes in those laws,
|
|
•
|
differing protection of intellectual property and changes in that protection,
|
|
•
|
increasing global enforcement of anti-bribery and anti-corruption laws, and
|
|
•
|
differing regulatory requirements and changes in those requirements.
|
|
•
|
requiring us to dedicate significant cash flow from operations to the payment of principal and interest on our debt, which reduces the funds we have available for other purposes, such as acquisitions and stock repurchases;
|
|
•
|
reducing our flexibility in planning for or reacting to changes in our business and market conditions; and
|
|
•
|
exposing us to interest rate risk since a portion of our debt obligations are at variable rates.
|
|
•
|
pay dividends on, redeem or repurchase our capital stock,
|
|
•
|
sell assets,
|
|
•
|
incur obligations that restrict our subsidiaries’ ability to make dividend or other payments to us,
|
|
•
|
guarantee or secure indebtedness,
|
|
•
|
enter into transactions with affiliates, and
|
|
•
|
consolidate, merge or transfer all, or substantially all, of our assets and the assets of our subsidiaries on a consolidated basis.
|
|
•
|
operating results that vary from the expectations of securities analysts and investors,
|
|
•
|
the financial performance of the major end markets that we target,
|
|
•
|
the operating and securities price performance of companies that investors consider to be comparable to us,
|
|
•
|
announcements of strategic developments, acquisitions and other material events by us or our competitors, and
|
|
•
|
changes in global financial markets and global economies and general market conditions, such as interest or foreign exchange rates, commodity and equity prices and the value of financial assets.
|
|
Item 2.
|
Unregistered Sales of Equity Securities and Use of Proceeds
|
|
|
Issuer Repurchases of Equity Securities
|
|||||||||||
|
Period
|
Total Number of
Shares
Purchased
(1)(2)
|
|
Average Price
Paid Per
Share
|
|
Total Number of
Shares Purchased as
Part of Publicly
Announced Plans or
Programs
|
|
Maximum Number of
Shares that May Yet
Be Purchased
Under the Plans or
Programs
|
|||||
|
January 2, 2012—February 5, 2012
|
23,487
|
|
|
$
|
24.22
|
|
|
—
|
|
|
5,999,167
|
|
|
February 6, 2012—March 4, 2012
|
40,549
|
|
|
$
|
26.22
|
|
|
—
|
|
|
5,999,167
|
|
|
March 5, 2012—April 1, 2012
|
—
|
|
|
$
|
—
|
|
|
—
|
|
|
5,999,167
|
|
|
Activity for quarter ended April 1, 2012
|
64,036
|
|
|
$
|
25.48
|
|
|
—
|
|
|
5,999,167
|
|
|
(1)
|
On October 23, 2008, we announced that our Board authorized us to repurchase up to
10.0 million
shares of common stock under a stock repurchase program (the “Repurchase Program”). On August 31, 2010, we announced that our Board had authorized us to repurchase an additional
5.0 million
shares of common stock under the Repurchase Program. The Repurchase Program will expire on October 22, 2012 unless terminated earlier by our Board, and may be suspended or discontinued at any time. During the
first
quarter of
fiscal year 2012
, we did not repurchase any shares of common stock in the open market under the Repurchase Program. As of
April 1, 2012
,
6.0 million
shares of our common stock remained available for repurchase from the
15.0 million
shares authorized by our Board under the Repurchase Program.
|
|
(2)
|
Our Board has authorized us to repurchase shares of common stock to satisfy minimum statutory tax withholding obligations in connection with the vesting of restricted stock awards and restricted stock unit awards granted pursuant to our equity incentive plans. During the
first
quarter of
fiscal year 2012
, we repurchased
64,036
shares of common stock for this purpose. The repurchased shares have been reflected as a reduction in shares outstanding, but remain available to be reissued with the payments reflected in common stock and capital in excess of par value.
|
|
Item 6.
|
Exhibits
|
|
Exhibit
Number
|
|
Exhibit Name
|
|
|
|
|
|
10.1
|
|
Employment Agreement between James Corbett and PerkinElmer, Inc. dated as of February 1, 2012.
|
|
|
|
|
|
10.2
|
|
Employment Agreement between Maurice H. Tenney and PerkinElmer, Inc. dated as of February 1, 2012.
|
|
|
|
|
|
31.1
|
|
Certification of Chief Executive Officer pursuant to Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
|
|
|
|
31.2
|
|
Certification of Chief Financial Officer pursuant to Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
|
|
|
|
32.1
|
|
Certification of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
|
|
|
|
|
101.INS
|
|
XBRL Instance Document.
|
|
|
|
|
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document.
|
|
|
|
|
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase Document.
|
|
|
|
|
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase Document.
|
|
|
|
|
|
101.LAB
|
|
XBRL Taxonomy Extension Labels Linkbase Document.
|
|
|
|
|
|
101.PRE
|
|
XBRL Taxonomy Extension Presentation Linkbase Document.
|
|
|
P
ERKIN
E
LMER
, I
NC
.
|
||
|
|
|
|
|
|
May 8, 2012
|
By:
|
|
/s/ F
RANK
A. W
ILSON
|
|
|
|
|
Frank A. Wilson
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
|
|
|
P
ERKIN
E
LMER
, I
NC
.
|
||
|
|
|
|
|
|
May 8, 2012
|
By:
|
|
/s/ A
NDREW
O
KUN
|
|
|
|
|
Andrew Okun
Vice President and Chief Accounting Officer
(Principal Accounting Officer)
|
|
Exhibit
Number
|
|
Exhibit Name
|
|
|
|
|
|
10.1
|
|
Employment Agreement between James Corbett and PerkinElmer, Inc. dated as of February 1, 2012.
|
|
|
|
|
|
10.2
|
|
Employment Agreement between Maurice H. Tenney and PerkinElmer, Inc. dated as of February 1, 2012.
|
|
|
|
|
|
31.1
|
|
Certification of Chief Executive Officer pursuant to Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
|
|
|
|
31.2
|
|
Certification of Chief Financial Officer pursuant to Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
|
|
|
|
32.1
|
|
Certification of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
|
|
|
|
|
101.INS
|
|
XBRL Instance Document.
|
|
|
|
|
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document.
|
|
|
|
|
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase Document.
|
|
|
|
|
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase Document.
|
|
|
|
|
|
101.LAB
|
|
XBRL Taxonomy Extension Labels Linkbase Document.
|
|
|
|
|
|
101.PRE
|
|
XBRL Taxonomy Extension Presentation Linkbase Document.
|
|
1.
|
(a) Except as hereinafter otherwise provided, the Company agrees to employ the employee in a management position with the Company, and the Employee agrees to remain in the employment of the Company in that capacity for a period of one year from the date hereof and from year to year thereafter until such time as this Agreement is terminated in accordance with Paragraph 5.
|
|
(b)
|
The Company will, during each year of the term of this Agreement, place in nomination before the Board of Directors of the Company the name of the Employee for election as an Officer of the Company except when a notice of termination has been given in accordance with Paragraph 5(b).
|
|
2.
|
The Employee agrees that, during the specified period of employment, he shall, to the best of his ability, perform his duties, and shall devote his full business time, best efforts, business judgment, skill and knowledge to the advancement of the Company and its interests and to the discharge of his duties and responsibilities hereunder. The Employee shall not engage in any business, profession or occupation which would conflict with the rendition of the agreed-upon services, either directly or indirectly, without the prior approval of the Board of Directors, except for personal investment, charitable and philanthropic activities.
|
|
3.
|
During the period of his employment under this Agreement, the Employee shall be compensated for his services as follows:
|
|
(a)
|
Except as otherwise provided in this Agreement, he shall be paid a salary during the period of this Agreement at a base rate to be determined by the Company on an annual basis. Except as provided in Paragraph 3(d), such annual base salary shall under no circumstances be fixed at a rate below the annual base rate then currently in effect;
|
|
(b)
|
He shall be reimbursed for any and all monies expended by him in connection with his employment for reasonable and necessary expenses on behalf of the Company in accordance with the policies of the Company then in effect;
|
|
(c)
|
He shall be eligible to participate under any and all bonus, benefit, pension, compensation, and equity and incentive plans which are, in accordance with Company policy and the terms of the plan, available to persons in his position (within the limitation as stipulated by such plans). Such eligibility shall not automatically entitle him to participate in any such plan;
|
|
(d)
|
If, because of adverse business conditions or for other reasons, the Company at any time puts into effect salary reductions applicable at a single rate to all management employees of the Company generally, the salary payments required to be made under this Agreement to the Employee during any period in which such general reduction is in effect may be reduced by the same percentage as is applicable to all management employees of the Company generally. Any benefits made available to the Employee which are related to base salary shall also be reduced in accordance with any salary reduction.
|
|
4.
|
(a) So long as the Employee is employed by the Company and for a period of one year after the termination or expiration of employment, the Employee will not directly or indirectly: (i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage directly or indirectly in any business or entity which competes with the business conducted by the Company or its affiliates in any city or geographic area in which the Company or its affiliates conduct material operations at the time of termination of employment under this Agreement, except as approved in advance by the Board after full and adequate disclosure; or (ii) recruit, solicit or induce, or attempt to induce, any employee or employees or consultant or consultants of the Company to terminate their employment with, to otherwise cease their relationship with, the Company; or (iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, of the Company.
|
|
(b)
|
If any restriction set forth in this Paragraph 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographical area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
|
|
(c)
|
The restrictions contained in this Paragraph 4 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Paragraph 4 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief.
|
|
(d)
|
The Employee agrees to sign and be bound by the Employee Patent and Proprietary Information Utilization Agreement in the form attached hereto.
|
|
(e)
|
During the period of his employment by the Company or for any period during which the Company shall continue to pay the Employee his salary under this Agreement, whichever shall be longer, the Employee shall not in any way whatsoever aid or assist any party seeking to cause, initiate or effect a Change in Control of the Company as defined in Paragraph 6 without the prior approval of the Board of Directors.
|
|
5.
|
Except for the Employee covenants set forth in Paragraph 4, which covenants shall remain in effect for the periods stated therein, and subject to Paragraph 6, this Agreement shall terminate upon the happening of any of the following events and (except as provided herein) all of the Company's obligations under this Agreement, including, but not limited to, making payments to the Employee shall cease and terminate:
|
|
(a)
|
On the effective date set forth in any resignation submitted by the Employee and accepted by the Company, or if no effective date is agreed upon, the date of receipt by the Company of such resignation letter;
|
|
(b)
|
On the date set forth in a written notice of termination given by the Company to the Employee (the “Paragraph 5(b) Termination Date”);
|
|
(c)
|
At the death of the Employee;
|
|
(d)
|
At the termination of the Employee for cause. As used in the Agreement, the term “cause” shall mean:
|
|
(i)
|
Misappropriating any funds or property of the Company;
|
|
(ii)
|
Unreasonable refusal to perform the duties assigned to him under this Agreement;
|
|
(iii)
|
Conviction of a felony;
|
|
(iv)
|
Continuous conduct bringing notoriety to the Company and having an adverse effect on the name or public image of the Company;
|
|
(v)
|
Violation of the Employee's covenants as set forth in Paragraph 4 above; or
|
|
(vi)
|
Continued failure by the Employee to observe any of the provisions of this Agreement after being informed of such breach.
|
|
(e)
|
Twelve months after written notice of termination (a “Disability Termination Notice”) is given by the Company to the Employee based on a determination by the Board of Directors that the Employee is disabled (which, for purposes of this Agreement, shall mean that the Employee is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve months, with such determination to be made by the Board of Directors, in reliance upon the opinion of the Employee's physician or upon the opinion of one or more physicians selected by the Company). A Disability Termination Notice shall be deemed properly delivered if given by the Company to the Employee on the 180th day of continuous disability of the Employee. Notwithstanding the foregoing, if, during the twelve-month period following proper delivery of a Disability Termination Notice as aforesaid, the Employee is no longer disabled and is able to return to work, such Disability Termination Notice shall be deemed automatically rescinded upon the Employee's return to work, and the employment of the Employee shall continue in accordance with the terms of this Agreement. During the first 180 days of continuous disability of the Employee, the Company will make monthly payments to the Employee in an amount equal to the difference between his base salary and the benefits received by the Employee under the Company's Short-Term Disability Income Plan. During the twelve-month period following proper delivery of a Disability Termination Notice as aforesaid, the Company will make monthly payments to the Employee in an amount equal to the difference between his base salary and the benefits provided by the Company's Long-Term Disability Plan. If any payments to the Employee under the Company's Long-Term Disability Plan are not subject to federal income taxes, the payments to be made directly by the Company pursuant to the preceding sentence shall be reduced such that the total amount received by the Employee (from the Company and from the Long-Term Disability Plan), after payment of any income taxes, is equal to the amount that the Employee would have received had he been paid his base salary, after payment of any income taxes on such base salary.
|
|
(f)
|
In the event of the termination of the Employee by the Company pursuant to Paragraph 5(b) above, and subject to the Employee's full execution of a severance agreement and release drafted by and satisfactory to counsel for the Company, the Employee shall, for a period of one year from the Paragraph 5(b) Termination Date, (i) continue to receive his Full Salary (as defined below), which shall be payable in accordance with the payment schedule in effect immediately prior to his employment termination, and (ii) continue to be entitled to participate in all employee benefit plans and arrangements of the Company (such as life, health and disability insurance and automobile arrangements but excluding qualified retirement plans, incentive arrangements and grants of equity awards) to the same extent (including coverage of dependents, if any) and upon the same terms as were in effect immediately prior to his termination. For purposes of this Agreement, “Full Salary” shall mean the Employee's annual base salary, plus the amount of any bonus or incentive payments (excluding payments under the Company's long-term incentive program) earned or received by the Employee with respect to the last full fiscal year of the Company for which all bonus or incentive payments (excluding payments under the Company's long-term incentive program) to be made have been made.
|
|
(g)
|
In the event of a termination of employment pursuant to Paragraph 5(a), (c) or (d), the Company shall pay the Employee his base salary through the date of termination of employment. The Employee shall not be entitled to receive any bonus payment or other additional compensation beyond his date of termination.
|
|
6.
|
(a) In the event of a Change in Control of the Company (as defined below),
|
|
(i)
|
The provisions of this Agreement shall be amended as follows:
|
|
(A)
|
Paragraph l(a) shall be amended to read in its entirety as follows:
|
|
(B)
|
Paragraph 5(a) shall be amended by the addition of the following provision at the end of such paragraph:
|
|
(C)
|
Paragraph 5(b) shall be deleted in its entirety.
|
|
(D)
|
Paragraph 5(f) shall be amended to read in its entirety as follows:
|
|
(E)
|
Paragraph 8 shall be amended to read in its entirety as follows:
|
|
(ii)
|
The Company will make the payments under this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Section 280G of the Code and without regard to whether such payments would be subject to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code; provided, however, that if the Total After-Tax Payments (as defined below) to the Employee would be increased by the reduction or elimination of any payment and/or other benefit (including the vesting of equity awards) under this Agreement or otherwise, then the amounts payable under this Agreement or otherwise will be reduced or eliminated in the following order unless otherwise determined by the Company: (A) nonacceleration of any stock options
|
|
(b)
|
For purposes of this Agreement, a “Change in Control of the Company” means an event or occurrence set forth in any one or more of clauses (i) through (iv) below (including an event or occurrence that constitutes a Change in Control under one or such clauses but is specifically exempted from another such clause):
|
|
(i)
|
the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (a “Person”) of beneficial ownership of any capital stock or the Company if, after such acquisition, such Person beneficially owns (within the meaning of Rule 13d-3 promulgated under the Exchange Act) 20% or more of either (A) the then-outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this paragraph (i), none of the following acquisitions of Outstanding Company Common Stock or Outstanding Company Voting Securities shall constitute a Change in Control: (I) any acquisition directly from the Company (excluding an acquisition pursuant to the exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable for common stock or voting securities of the Company, unless the Person exercising, converting or exchanging such security acquired such security directly from the Company or an
|
|
(ii)
|
such time as the Continuing Directors (as defined below) do not constitute a majority of the Board (or, if applicable, the Board of Directors of a successor corporation to the Company), where the term “Continuing Director” means at any date a member of the Board (A) who was a member of the Board on the date of the execution of this Agreement or (B) who was nominated or elected subsequent to such date by at least a majority of the directors who were Continuing Directors at the time of such nomination or election or whose election to the Board was recommended or endorsed by at least a majority of the directors who were Continuing Directors at the time of such nomination or election; provided, however, that there shall be excluded from this clause (B) any individual whose initial assumption of office occurred as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents, by or on behalf of a person other than the Board; or
|
|
(iii)
|
the consummation of a merger, consolidation, reorganization, recapitalization or statutory share exchange involving the Company or a sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), unless, immediately following such Business Combination, each of the following two conditions is satisfied: (A) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors, respectively, of the surviving, resulting or acquiring corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company's assets either directly or through one or more other entities) (such resulting or acquiring corporation is referred to herein as the “Acquiring Corporation”) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Outstanding Company Stock and Outstanding Company Voting Securities, respectively; and (B) no Person beneficially owns, directly or indirectly, 20% or more of the then outstanding shares of common stock of the Acquiring Corporation, or of
|
|
(iv)
|
approval by the stockholders of the Company or a complete liquidation or dissolution of the Company.
|
|
(c)
|
For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following events: (i) a material diminution in the Employee's base salary except as provided in Paragraph 3(d); (ii) a failure by the Company to pay annual cash bonuses to the Employees in an amount at least equal to the most recent annual cash bonuses paid to the Employee; (iii) a failure by the Company to maintain in effect any material compensation or benefit plan in which the Employee participated immediately prior to the Change in Control, unless an equitable arrangement has been made with respect to such plan, or a failure to continue the Employee's participation therein on a basis not materially less favorable than existed immediately prior to the Change in Control; (iv) any material diminution in the Employee's position, duties, authorities, responsibilities or title as in effect immediately prior to the Change in Control; (v) any requirement by the Company that the location at which the Employee performs his principal duties be changed to a new location outside a radius of 25 miles from the Employee's principal place of employment immediately prior to the Change in Control; or (vi) the failure of the Company to obtain the agreement, in a form reasonably satisfactory to the Employee, from any successor to the Company to assume and agree to perform this Agreement. The Employee shall provide notice to the Company of the existence of the condition upon which Employee bases his claim for Good Reason within 90 days of the initial existence of the condition. As a condition to a termination for Good Reason, if the condition is capable of being corrected, the Company shall have 30 days during which it may remedy the condition. If the condition is fully remedied with such time period there shall be no “Good Reason” and the Company shall not owe the amounts otherwise required to be paid under Paragraph 5, as amended by this Paragraph 6, in connection with the termination. The Employee's right to terminate his employment for Good Reason shall not be affected by his incapacity due to physical or mental illness.
|
|
7.
|
Neither the Employee nor, in the event of his death, his legal representative, beneficiary or estate, shall have the power to transfer, assign, mortgage or otherwise encumber in advance any of the payments provided for in this Agreement, nor shall any payments nor assets or funds of the Company be subject to seizure for the payment of any debts, judgments, liabilities, bankruptcy or other actions.
|
|
8.
|
Any controversy relating to this Agreement and not resolved by the Board of Directors and the Employee shall be settled by arbitration in the City of Boston, Commonwealth of Massachusetts, pursuant to the rules then obtaining of the JAMS, and judgment upon the award may be entered in any court having jurisdiction, and the Board of Directors and Employee agree to be bound by the arbitration decision on any such controversy. Unless otherwise agreed by the parties hereto, arbitration will be by an arbitrator selected from the panel of the JAMS. The full cost of any such arbitration shall be borne by the Company.
|
|
9.
|
Failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof shall not be deemed a waiver of such term, covenant, or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times by either party.
|
|
10.
|
All notices or other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered personally to the Employee or to the General Counsel of the Company or when mailed by registered or certified mail to the other party (if to the Company, at 940 Winter Street, Waltham, Massachusetts 02451, attention General Counsel; if to the Employee, at the last known address of the Employee as set forth in the records of the Company).
|
|
11.
|
This Agreement has been executed and delivered and shall be construed in accordance with the laws of the Commonwealth of Massachusetts. This Agreement is and shall be binding on the respective legal representatives or successors of the parties, but shall not be assignable except to a successor to the Company by virtue of a merger, consolidation or acquisition of all or substantially all of the assets of the Company. This Agreement constitutes and embodies the entire understanding and agreement of the parties and, except as otherwise provided herein, there are no other agreements or understandings, written or oral, in effect between the parties hereto relating to the employment of the Employee by the Company. All previous employment contracts between the Employee and the Company or any of the Company's present or former subsidiaries or affiliates is hereby canceled and of no effect.
|
|
12.
|
The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company to assume expressly in writing and to agree to perform its obligations under this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. Failure of the Company to obtain an assumption of this Agreement prior to the effectiveness of succession shall be a breach of this Agreement. As used in this Agreement, “the Company” shall mean the Company as defined above and any successor to its business or assets as aforesaid which assumes and agrees to perform this Agreement, whether by operation of law, or otherwise.
|
|
13.
|
The parties intend that payments made pursuant to this Agreement be either exempt from, or compliant with, Section 409A of the Code and the regulations promulgated thereunder (“Section 409A”), so as not to be subject to the excise tax thereunder. Accordingly, the following provisions shall apply to payments pursuant to this Agreement, notwithstanding any provision to the contrary contained in this Agreement:
|
|
(a)
|
Any medical, dental, prescription drug, or other health benefits (collectively, the “Medical Benefits”) that may be required to be provided by the Company under Paragraphs 5 or 6 and that are provided under a so-called “self-insured” benefit plan which is subject to Section 105(h) of the Code (or to similar rules pursuant to provisions of the Patient Protection Affordable Care Act) shall instead be structured so that on or about the first day of each month for which coverage is to be provided the Company shall pay to the Employee an amount in cash sufficient to cover the Company's share of the applicable premium for the Medical Benefits coverage for that month. The Employee's premium payments to the Company for Medical Benefits shall be due on the last day of the month to which the coverage relates. The parties intend that the first 18 months of Medical Benefits coverage shall be exempt from the application of Section 409A, and that any remaining payments by the Company for Medical Benefits shall be considered in compliance with Section 409A;
|
|
(b)
|
Any payment of “reimbursements” by the Company to the Employee, any payment of “in-kind benefits” from the Company to the Employee, and any “direct service recipient payments” made by the Company on the Employee's behalf for a “limited period of time” (in each case as those terms are used for purposes of Section 409A) shall be exempt from the application of Section 409A;
|
|
(c)
|
Except as provided in Paragraphs 13(a) or (b) above, or Paragraph 13(e) below, the remainder of all other payments or benefits that are to be paid or provided by the Company to the Employee under Paragraphs 5 or 6 shall be paid or provided in accordance with the schedules set forth in Paragraphs 5 or 6, or if none, in accordance with the schedules set forth in the underlying employee benefit plans and arrangements. Each payment on a payroll date and each monthly payment under Paragraphs 5 and 6 shall be deemed to be a “separate payment” as that term is used for purposes of Section 409A, including the exemptions from Section 409A;
|
|
(d)
|
The payments that are to be paid by the Company to the Employee under Paragraphs 5 or 6 which (i) will constitute payments from a “non-qualified deferred compensation plan” as that term is used for the purposes of Section 409A (after taking into account Paragraphs 13(a) and (b) above and any other exemptions available under Section 409A, including without limitation qualification as a “short term deferral” within the meaning of Section 409A), (ii) are payable prior to the date that is 6 months after the Employee's “separation from service” as that term is used for purposes of Section 409A (“Separation from
|
|
(e)
|
If the Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code on the date of the Employee's “separation from service” as that term is used for purposes of Section 409A, the payments that are otherwise scheduled to be paid to the Employee under Paragraphs 5 or 6 prior to the Delayed Payment Date (determined without regard to this Paragraph 13) that exceed the amount calculated under Paragraph 13(d) above shall instead be paid by the Company to the Employee in a lump sum (together with interest at the prime rate as published in The Wall Street Journal on the date of Separation from Service) one day after the Delayed Payment Date (or, if earlier, the death of the Employee); and
|
|
(f)
|
The amount of expenses eligible for reimbursement to the Employee, and the amount of in-kind benefits provided to the Employee, during any calendar year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year.
|
|
(g)
|
The Company shall (i) have the right to deduct from any payment under this Agreement any and all taxes determined by the Company to be applicable with respect to such benefits and (ii) shall have the right to require the Employee to make arrangements satisfactory to satisfy any such withholding obligation that may not be satisfied in full by wage withholding described in (i).
|
|
(h)
|
The Employee shall be responsible for all taxes with respect to any payments or benefits hereunder except for the Company's portion of any Social Security and Medicare taxes. The Company makes no guarantee regarding the tax treatment of the payments or benefits provided by this Agreement.
|
|
(i)
|
The reference in Section 5(f) to execution of a severance agreement and release shall be subject to the following terms. Payments pursuant to Section 5(f) shall commence on the 60th day following the Employee's separation from service, provided that the Employee has executed and submitted the severance agreement and release and the agreement and release have become irrevocable. The payment made on such 60th day shall include any periodic payments to which the Employee would have been entitled had payments commenced upon the Employee's separation from service.
|
|
(j)
|
In determining whether a payment is made on permissible payment event or date, the rules of the Treasury Regulations and other guidance under Section 409A shall apply, including without limitation the rules of Treasury Regulation section 1.409A-3(g) (related to disputed payments) and the rules of Treasury Regulation section 1.409A-3(d) (generally permitting payment to be made at a later date within the same taxable year (or if later by the 15th day of the third calendar month following the date specified) so long as the Employee is not permitted, directly or indirectly, to designate the year of payment).
|
|
|
|
|
PERKINELMER, INC.
|
|
|
|
|
|
By:
|
/s/ R
OBERT
F. F
RIEL
|
|
|
Robert F. Friel
Chairman and Chief Executive Officer
|
|
Employee:
|
/s/ J
AMES
C
ORBETT
|
|
|
James Corbett
|
|
1.
|
(a) Except as hereinafter otherwise provided, the Company agrees to employ the employee in a management position with the Company, and the Employee agrees to remain in the employment of the Company in that capacity for a period of one year from the date hereof and from year to year thereafter until such time as this Agreement is terminated in accordance with Paragraph 5.
|
|
(b)
|
The Company will, during each year of the term of this Agreement, place in nomination before the Board of Directors of the Company the name of the Employee for election as an Officer of the Company except when a notice of termination has been given in accordance with Paragraph 5(b).
|
|
2.
|
The Employee agrees that, during the specified period of employment, he shall, to the best of his ability, perform his duties, and shall devote his full business time, best efforts, business judgment, skill and knowledge to the advancement of the Company and its interests and to the discharge of his duties and responsibilities hereunder. The Employee shall not engage in any business, profession or occupation which would conflict with the rendition of the agreed-upon services, either directly or indirectly, without the prior approval of the Board of Directors, except for personal investment, charitable and philanthropic activities.
|
|
3.
|
During the period of his employment under this Agreement, the Employee shall be compensated for his services as follows:
|
|
(a)
|
Except as otherwise provided in this Agreement, he shall be paid a salary during the period of this Agreement at a base rate to be determined by the Company on an annual basis. Except as provided in Paragraph 3(d), such annual base salary shall under no circumstances be fixed at a rate below the annual base rate then currently in effect;
|
|
(b)
|
He shall be reimbursed for any and all monies expended by him in connection with his employment for reasonable and necessary expenses on behalf of the Company in accordance with the policies of the Company then in effect;
|
|
(c)
|
He shall be eligible to participate under any and all bonus, benefit, pension, compensation, and equity and incentive plans which are, in accordance with Company policy and the terms of the plan, available to persons in his position (within the limitation as stipulated by such plans). Such eligibility shall not automatically entitle him to participate in any such plan;
|
|
(d)
|
If, because of adverse business conditions or for other reasons, the Company at any time puts into effect salary reductions applicable at a single rate to all management employees of the Company generally, the salary payments required to be made under this Agreement to the Employee during any period in which such general reduction is in effect may be reduced by the same percentage as is applicable to all management employees of the Company generally. Any benefits made available to the Employee which are related to base salary shall also be reduced in accordance with any salary reduction.
|
|
4.
|
(a) So long as the Employee is employed by the Company and for a period of one year after the termination or expiration of employment, the Employee will not directly or indirectly: (i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage directly or indirectly in any business or entity which competes with the business conducted by the Company or its affiliates in any city or geographic area in which the Company or its affiliates conduct material operations at the time of termination of employment under this Agreement, except as approved in advance by the Board after full and adequate disclosure; or (ii) recruit, solicit or induce, or attempt to induce, any employee or employees or consultant or consultants of the Company to terminate their employment with, to otherwise cease their relationship with, the Company; or (iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, of the Company.
|
|
(b)
|
If any restriction set forth in this Paragraph 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographical area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
|
|
(c)
|
The restrictions contained in this Paragraph 4 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Paragraph 4 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief.
|
|
(d)
|
The Employee agrees to sign and be bound by the Employee Patent and Proprietary Information Utilization Agreement in the form attached hereto.
|
|
(e)
|
During the period of his employment by the Company or for any period during which the Company shall continue to pay the Employee his salary under this Agreement, whichever shall be longer, the Employee shall not in any way whatsoever aid or assist any party seeking to cause, initiate or effect a Change in Control of the Company as defined in Paragraph 6 without the prior approval of the Board of Directors.
|
|
5.
|
Except for the Employee covenants set forth in Paragraph 4, which covenants shall remain in effect for the periods stated therein, and subject to Paragraph 6, this Agreement shall terminate upon the happening of any of the following events and (except as provided herein) all of the Company's obligations under this Agreement, including, but not limited to, making payments to the Employee shall cease and terminate:
|
|
(a)
|
On the effective date set forth in any resignation submitted by the Employee and accepted by the Company, or if no effective date is agreed upon, the date of receipt by the Company of such resignation letter;
|
|
(b)
|
On the date set forth in a written notice of termination given by the Company to the Employee (the “Paragraph 5(b) Termination Date”);
|
|
(c)
|
At the death of the Employee;
|
|
(d)
|
At the termination of the Employee for cause. As used in the Agreement, the term “cause” shall mean:
|
|
(i)
|
Misappropriating any funds or property of the Company;
|
|
(ii)
|
Unreasonable refusal to perform the duties assigned to him under this Agreement;
|
|
(iii)
|
Conviction of a felony;
|
|
(iv)
|
Continuous conduct bringing notoriety to the Company and having an adverse effect on the name or public image of the Company;
|
|
(v)
|
Violation of the Employee's covenants as set forth in Paragraph 4 above; or
|
|
(vi)
|
Continued failure by the Employee to observe any of the provisions of this Agreement after being informed of such breach.
|
|
(e)
|
Twelve months after written notice of termination (a “Disability Termination Notice”) is given by the Company to the Employee based on a determination by the Board of Directors that the Employee is disabled (which, for purposes of this Agreement, shall mean that the Employee is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve months, with such determination to be made by the Board of Directors, in reliance upon the opinion of the Employee's physician or upon the opinion of one or more physicians selected by the Company). A Disability Termination Notice shall be deemed properly delivered if given by the Company to the Employee on the 180th day of continuous disability of the Employee. Notwithstanding the foregoing, if, during the twelve-month period following proper delivery of a Disability Termination Notice as aforesaid, the Employee is no longer
|
|
(f)
|
In the event of the termination of the Employee by the Company pursuant to Paragraph 5(b) above, and subject to the Employee's full execution of a severance agreement and release drafted by and satisfactory to counsel for the Company, the Employee shall, for a period of one year from the Paragraph 5(b) Termination Date, (i) continue to receive his Full Salary (as defined below), which shall be payable in accordance with the payment schedule in effect immediately prior to his employment termination, and (ii) continue to be entitled to participate in all employee benefit plans and arrangements of the Company (such as life, health and disability insurance and automobile arrangements but excluding qualified retirement plans, incentive arrangements and grants of equity awards) to the same extent (including coverage of dependents, if any) and upon the same terms as were in effect immediately prior to his termination. For purposes of this Agreement, “Full Salary” shall mean the Employee's annual base salary, plus the amount of any bonus or incentive payments (excluding payments under the Company's long-term incentive program) earned or received by the Employee with respect to the last full fiscal year of the Company for which all bonus or incentive payments (excluding payments under the Company's long-term incentive program) to be made have been made.
|
|
(g)
|
In the event of a termination of employment pursuant to Paragraph 5(a), (c) or (d), the Company shall pay the Employee his base salary through the date of termination of employment. The Employee shall not be entitled to receive any bonus payment or other additional compensation beyond his date of termination.
|
|
6.
|
(a) In the event of a Change in Control of the Company (as defined below),
|
|
(i)
|
The provisions of this Agreement shall be amended as follows:
|
|
(A)
|
Paragraph l(a) shall be amended to read in its entirety as follows:
|
|
(B)
|
Paragraph 5(a) shall be amended by the addition of the following provision at the end of such paragraph:
|
|
(C)
|
Paragraph 5(b) shall be deleted in its entirety.
|
|
(D)
|
Paragraph 5(f) shall be amended to read in its entirety as follows:
|
|
(E)
|
Paragraph 8 shall be amended to read in its entirety as follows:
|
|
(ii)
|
The Company will make the payments under this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Section 280G of the Code and without regard to whether such payments would be subject to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code; provided, however, that if the Total After-Tax Payments (as defined below) to the Employee would be increased by the reduction or elimination of any payment and/or other benefit (including the vesting of equity awards) under this Agreement or otherwise, then the amounts payable under this Agreement or otherwise will be reduced or eliminated in the following order unless otherwise determined by the Company: (A) nonacceleration of any stock options whose exercise price is at or above the fair market value of the stock as of the change in control date for purposes of Section 280G of the Code (taking into account, as appropriate, the proceeds that would be received in connection with the event covered by Section 4999 of the Code), (B) nonacceleration of any stock options not described in clause (A) above, (C) any vesting or distribution of restricted stock or restricted stock units and (D) any cash or taxable benefits. Within each category described in clauses (A), (B), (C) or (D), reductions or eliminations shall be made as determined by the Company in reverse order beginning with vesting or payments that are to be paid the farthest in time from the date of the event covered by Section 4999 of the Code.
|
|
(b)
|
For purposes of this Agreement, a “Change in Control of the Company” means an event or occurrence set forth in any one or more of clauses (i) through (iv) below (including an event or occurrence that constitutes a Change in Control under one or such clauses but is specifically exempted from another such clause):
|
|
(i)
|
the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (a “Person”) of beneficial ownership of any capital stock or the Company if, after such acquisition, such Person beneficially owns (within the meaning of Rule 13d-3 promulgated under the Exchange Act) 20% or more of either (A) the then-outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this paragraph (i), none of the following acquisitions of Outstanding Company Common Stock or Outstanding Company Voting Securities shall constitute a Change in Control: (I) any acquisition directly from the Company (excluding an acquisition pursuant to the exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable for common stock or voting securities of the Company, unless the Person exercising, converting or exchanging such security acquired such security directly from the Company or an underwriter or agent of the Company), (II) any acquisition by the Company, (III) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (IV) any acquisition by any corporation pursuant to a transaction which complies with subclauses (A) and (B) of clause (iii) of this Paragraph 6(b); or
|
|
(ii)
|
such time as the Continuing Directors (as defined below) do not constitute a majority of the Board (or, if applicable, the Board of Directors of a successor corporation to the Company), where the term “Continuing Director” means at any date a member of the Board (A) who was a member of the Board on the date of the execution of this Agreement or (B) who was nominated or elected subsequent to such date by at least a majority of the directors who were Continuing Directors at the time of such nomination or election or whose election to the Board was recommended or endorsed by at least a majority of the directors who were Continuing Directors at the time of such nomination or election; provided, however, that there shall be excluded from this clause (B) any individual whose initial assumption of office occurred as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents, by or on behalf of a person other than the Board; or
|
|
(iii)
|
the consummation of a merger, consolidation, reorganization, recapitalization or statutory share exchange involving the Company or a sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), unless, immediately following such Business Combination, each of the following two conditions is satisfied: (A) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors, respectively, of the surviving, resulting or acquiring corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company's assets either directly or through one or more other entities) (such resulting or acquiring corporation is referred to herein as the “Acquiring Corporation”) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Outstanding Company Stock and Outstanding Company Voting Securities, respectively; and (B) no Person beneficially owns, directly or indirectly, 20% or more of the then outstanding shares of common stock of the Acquiring Corporation, or of the combined voting power of the then-outstanding securities of such corporation entitled to vote generally in the election of directors (except to the extent that such ownership existed prior to the Business Combination); or
|
|
(iv)
|
approval by the stockholders of the Company or a complete liquidation or dissolution of the Company.
|
|
(c)
|
For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following events: (i) a material diminution in the Employee's base salary except as provided in Paragraph 3(d); (ii) a failure by the Company to pay annual cash bonuses to the Employees in an amount at least equal to the most recent annual cash bonuses paid to the Employee; (iii) a failure by the Company to maintain in effect any material compensation or benefit plan in which the Employee participated immediately prior to the Change in Control, unless an equitable arrangement has been made with respect to such plan, or a failure to continue the Employee's participation therein on a basis not materially less favorable than existed immediately prior to the Change in Control; (iv) any material diminution in the Employee's position, duties, authorities, responsibilities or title as in effect immediately prior to the Change in Control; (v) any requirement by the Company that the location at which the Employee performs his principal duties be changed to a new location outside a radius of 25 miles from the Employee's principal place of employment immediately prior to the Change in Control; or (vi) the failure of the Company to obtain the agreement, in a form reasonably satisfactory to the Employee, from any successor to the Company to assume and agree to perform this Agreement. The Employee shall provide notice to the Company of the existence of the condition upon which Employee bases his claim for Good Reason within 90 days of the initial existence of the condition. As a condition to a termination for Good Reason, if the condition is capable of being corrected, the Company shall have 30 days during which it may remedy the condition. If the condition is fully remedied with such time period there shall be no “Good Reason” and the
|
|
7.
|
Neither the Employee nor, in the event of his death, his legal representative, beneficiary or estate, shall have the power to transfer, assign, mortgage or otherwise encumber in advance any of the payments provided for in this Agreement, nor shall any payments nor assets or funds of the Company be subject to seizure for the payment of any debts, judgments, liabilities, bankruptcy or other actions.
|
|
8.
|
Any controversy relating to this Agreement and not resolved by the Board of Directors and the Employee shall be settled by arbitration in the City of Boston, Commonwealth of Massachusetts, pursuant to the rules then obtaining of the JAMS, and judgment upon the award may be entered in any court having jurisdiction, and the Board of Directors and Employee agree to be bound by the arbitration decision on any such controversy. Unless otherwise agreed by the parties hereto, arbitration will be by an arbitrator selected from the panel of the JAMS. The full cost of any such arbitration shall be borne by the Company.
|
|
9.
|
Failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof shall not be deemed a waiver of such term, covenant, or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times by either party.
|
|
10.
|
All notices or other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered personally to the Employee or to the General Counsel of the Company or when mailed by registered or certified mail to the other party (if to the Company, at 940 Winter Street, Waltham, Massachusetts 02451, attention General Counsel; if to the Employee, at the last known address of the Employee as set forth in the records of the Company).
|
|
11.
|
This Agreement has been executed and delivered and shall be construed in accordance with the laws of the Commonwealth of Massachusetts. This Agreement is and shall be binding on the respective legal representatives or successors of the parties, but shall not be assignable except to a successor to the Company by virtue of a merger, consolidation or acquisition of all or substantially all of the assets of the Company. This Agreement constitutes and embodies the entire understanding and agreement of the parties and, except as otherwise provided herein, there are no other agreements or understandings, written or oral, in effect between the parties hereto relating to the employment of the Employee by the Company. All previous employment contracts between the Employee and the Company or any of the Company's present or former subsidiaries or affiliates is hereby canceled and of no effect.
|
|
12.
|
The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company to assume expressly in writing and to agree to perform its obligations under this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. Failure of the Company to obtain an assumption of this Agreement prior to the effectiveness of succession shall be a breach of this Agreement. As used in this Agreement, “the Company” shall mean the Company as defined above and any successor to its business or assets as aforesaid which assumes and agrees to perform this Agreement, whether by operation of law, or otherwise.
|
|
13.
|
The parties intend that payments made pursuant to this Agreement be either exempt from, or compliant with, Section 409A of the Code and the regulations promulgated thereunder (“Section 409A”), so as not to be subject to the excise tax thereunder. Accordingly, the following provisions shall apply to payments pursuant to this Agreement, notwithstanding any provision to the contrary contained in this Agreement:
|
|
(a)
|
Any medical, dental, prescription drug, or other health benefits (collectively, the “Medical Benefits”) that may be required to be provided by the Company under Paragraphs 5 or 6 and that are provided under a so-called “self-insured” benefit plan which is subject to Section 105(h) of the Code (or to similar rules pursuant to provisions of the Patient Protection Affordable Care Act) shall instead be structured so that on or about the first day of each month for which coverage is to be provided the Company shall pay to the Employee an amount in cash sufficient to cover the Company's share of the applicable premium for the Medical Benefits coverage for that month. The Employee's premium payments to the Company for Medical Benefits shall be due on the last day of the month to which the coverage relates. The parties intend that the first 18 months of Medical Benefits coverage shall be exempt from the application of Section 409A, and that any remaining payments by the Company for Medical Benefits shall be considered in compliance with Section 409A;
|
|
(b)
|
Any payment of “reimbursements” by the Company to the Employee, any payment of “in-kind benefits” from the Company to the Employee, and any “direct service recipient payments” made by the Company on the Employee's behalf for a “limited period of time” (in each case as those terms are used for purposes of Section 409A) shall be exempt from the application of Section 409A;
|
|
(c)
|
Except as provided in Paragraphs 13(a) or (b) above, or Paragraph 13(e) below, the remainder of all other payments or benefits that are to be paid or provided by the Company to the Employee under Paragraphs 5 or 6 shall be paid or provided in accordance with the schedules set forth in Paragraphs 5 or 6, or if none, in accordance with the schedules set forth in the underlying employee benefit plans and arrangements. Each payment on a payroll date and each monthly payment under Paragraphs 5 and 6 shall be deemed to be a “separate payment” as that term is used for purposes of Section 409A, including the exemptions from Section 409A;
|
|
(d)
|
The payments that are to be paid by the Company to the Employee under Paragraphs 5 or 6 which (i) will constitute payments from a “non-qualified deferred compensation plan” as that term is used for the purposes of Section 409A (after taking into account Paragraphs 13(a) and (b) above and any other exemptions available under Section 409A, including without limitation qualification as a “short term deferral” within the meaning of Section 409A), (ii) are payable prior to the date that is 6 months after the Employee's “separation from service” as that term is used for purposes of Section 409A (“Separation from Service”) (such date hereinafter referred to as the “Delayed Payment Date”), and (iii) do not exceed two (2) times the lesser of (I) or (II) below, shall be paid in accordance with the payment schedule that would otherwise apply under Paragraphs 5 or 6 in the absence of the application of Section 409A. For purposes of this Paragraph 13(d), “(I)” shall mean the sum of the Employee's annualized compensation based upon his annual rate of pay for services provided to the Company for the calendar year preceding the Company's taxable year in which the Employee had a Separation from Service, and “(II)” shall mean the maximum amount that may be taken into account under a qualified plan pursuant to
|
|
(e)
|
If the Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code on the date of the Employee's “separation from service” as that term is used for purposes of Section 409A, the payments that are otherwise scheduled to be paid to the Employee under Paragraphs 5 or 6 prior to the Delayed Payment Date (determined without regard to this Paragraph 13) that exceed the amount calculated under Paragraph 13(d) above shall instead be paid by the Company to the Employee in a lump sum (together with interest at the prime rate as published in The Wall Street Journal on the date of Separation from Service) one day after the Delayed Payment Date (or, if earlier, the death of the Employee); and
|
|
(f)
|
The amount of expenses eligible for reimbursement to the Employee, and the amount of in-kind benefits provided to the Employee, during any calendar year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year.
|
|
(g)
|
The Company shall (i) have the right to deduct from any payment under this Agreement any and all taxes determined by the Company to be applicable with respect to such benefits and (ii) shall have the right to require the Employee to make arrangements satisfactory to satisfy any such withholding obligation that may not be satisfied in full by wage withholding described in (i).
|
|
(h)
|
The Employee shall be responsible for all taxes with respect to any payments or benefits hereunder except for the Company's portion of any Social Security and Medicare taxes. The Company makes no guarantee regarding the tax treatment of the payments or benefits provided by this Agreement.
|
|
(i)
|
The reference in Section 5(f) to execution of a severance agreement and release shall be subject to the following terms. Payments pursuant to Section 5(f) shall commence on the 60th day following the Employee's separation from service, provided that the Employee has executed and submitted the severance agreement and release and the agreement and release have become irrevocable. The payment made on such 60th day shall include any periodic payments to which the Employee would have been entitled had payments commenced upon the Employee's separation from service.
|
|
(j)
|
In determining whether a payment is made on permissible payment event or date, the rules of the Treasury Regulations and other guidance under Section 409A shall apply, including without limitation the rules of Treasury Regulation section 1.409A-3(g) (related to disputed payments) and the rules of Treasury Regulation section 1.409A-3(d) (generally permitting payment to be made at a later date within the same taxable year (or if later by the 15th day of the third calendar month following the date specified) so long as the Employee is not permitted, directly or indirectly, to designate the year of payment).
|
|
|
|
|
PERKINELMER, INC.
|
|
|
|
|
|
By:
|
/s/ R
OBERT
F. F
RIEL
|
|
|
Robert F. Friel
Chairman and Chief Executive Officer
|
|
Employee:
|
/s/ M
AURICE
H. T
ENNEY
|
|
|
Maurice Tenney
|
|
1.
|
I have reviewed this Quarterly Report on Form 10-Q of PerkinElmer, Inc.;
|
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
|
4.
|
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
|
a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
|
b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
|
c)
|
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
|
d)
|
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
|
|
5.
|
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
|
|
a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
|
|
b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
|
|
Date:
|
May 8, 2012
|
/s/ R
OBERT
F. F
RIEL
|
|
|
|
Robert F. Friel
President and Chief Executive Officer
|
|
1.
|
I have reviewed this Quarterly Report on Form 10-Q of PerkinElmer, Inc.;
|
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
|
4.
|
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
|
a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
|
b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
|
c)
|
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
|
d)
|
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
|
|
5.
|
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
|
|
a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
|
|
b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
|
|
Date:
|
May 8, 2012
|
/s/ F
RANK
A. W
ILSON
|
|
|
|
Frank A. Wilson
Senior Vice President and
Chief Financial Officer
|
|
Dated:
|
May 8, 2012
|
/
S
/ R
OBERT
F. F
RIEL
|
|
|
|
Robert F. Friel
President and Chief Executive Officer
|
|
|
|
|
|
Dated:
|
May 8, 2012
|
/
S
/ F
RANK
A. W
ILSON
|
|
|
|
Frank A. Wilson
Senior Vice President and
Chief Financial Officer
|