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<IMS-DOCUMENT>0000913355-94-000020.txt : 19941017
<IMS-HEADER>0000913355-94-000020.hdr.sgml : 19941017
ACCESSION NUMBER: 0000913355-94-000020
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 15
CONFORMED PERIOD OF REPORT: 19940630
FILED AS OF DATE: 19940928
SROS: NYSE
SROS: PSE
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: PERKIN ELMER CORP
CENTRAL INDEX KEY: 0000077551
STANDARD INDUSTRIAL CLASSIFICATION: 3826
IRS NUMBER: 060490270
STATE OF INCORPORATION: NY
FISCAL YEAR END: 0630
FILING VALUES:
FORM TYPE: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-04389
FILM NUMBER: 94550567
BUSINESS ADDRESS:
STREET 1: 761 MAIN AVE
CITY: NORWALK
STATE: CT
ZIP: 06859-0001
BUSINESS PHONE: 2037621000
MAIL ADDRESS:
STREET 1: 761 MAIN AVENUE
CITY: NORWALK
STATE: CT
ZIP: 06859-0001
</IMS-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<DESCRIPTION>ANNUAL REPORT ON FORM 10-K
<TEXT>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[ X ] Annual Report Pursuant To Section 13 Or 15(d)
Of The Securities Exchange Act Of 1934
For the Fiscal Year Ended June 30, 1994
OR
[ ] Transition Report Pursuant To Section 13 Or 15(d)
Of The Securities Exchange Act Of 1934
For the transition period from to
Commission File Number 1-4389
The Perkin-Elmer Corporation
(Exact name of registrant as specified in its charter)
NEW YORK 06-0490270
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
761 Main Avenue, Norwalk, Connecticut 06859-0001
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: 203-762-1000
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of class on which registered
Common Stock (par value New York Stock Exchange
$1.00 per share) Pacific Stock Exchange
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the Registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
X Yes No
As of September 6, 1994, 42,489,989 shares of Registrant's Common
Stock were outstanding, and the aggregate market value of shares of such
Common Stock (based upon the average sales price) held by non-affiliates
was approximately $1,269,389,727.
DOCUMENTS INCORPORATED BY REFERENCE
Annual Report to Shareholders for Fiscal Year ended June 30, 1994 -
Parts I, II, and IV.
Proxy Statement for Annual Meeting of Shareholders dated September
16, 1994 - Part III.
Indicate by check mark if disclosure of delinquent filers pursuant
to Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of Registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K. [ ]
PART I
Item 1. BUSINESS
(a) General Development of Business.
The Perkin-Elmer Corporation was incorporated in 1939
under the laws of the State of New York. Together with its
consolidated subsidiaries, The Perkin-Elmer Corporation
(hereinafter collectively referred to as "Registrant" or the
"Corporation") develops, manufactures, and sells products in
the industry segment described in sub-item (c) below.
On February 18, 1993, the shareholders of Registrant and
Applied Biosystems, Inc. ("ABI"), a supplier of automated
systems for life science research and related applications,
approved the merger of a subsidiary of Registrant with and
into ABI which resulted in ABI becoming a wholly-owned
subsidiary of Registrant. Effective July 1, 1994, ABI was
merged into Registrant and is now the Applied Biosystems
division of Registrant.
On July 29, 1993, Registrant announced plans to divest
its Material Sciences segment which consists of its Metco
Division ("Metco") headquartered in Westbury, New York. On
April 18, 1994, Registrant entered into an agreement with
Sulzer Inc. to sell Metco. Registrant expects to complete the
sale in calendar year 1994.
The consolidated financial statements and schedules
reflect the merger with ABI as a pooling of interests and
present the Corporation's Material Sciences segment as a
discontinued operation.
On May 18, 1993, Registrant amended its By-laws to change
Registrant's fiscal year end from July 31 to June 30. Prior
to fiscal 1993, the financial statements of ABI and
Registrant's subsidiaries outside the United States were for
fiscal years ended June 30, while Registrant's domestic
operations reported on a July 31 fiscal year end.
In fiscal year 1990 Registrant divested the net assets of
what had been its Semiconductor Equipment, Avionic
Instrumentation, and Electro-Optical segments.
(b) Financial Information About Industry Segments.
Registrant is engaged in one business segment which is
generally described as analytical instruments. Accordingly,
separate segment financial information is not provided.
- 1 -
<PAGE>
(c) Narrative Description of Business.
BUSINESS
Registrant develops, manufactures, markets, sells, and
services analytical instrument systems. Included in this
industry segment are biochemical analytical instrument
systems, consisting of instruments and associated consumable
products, for life science research and related applications.
These automated systems are used for synthesis, amplification,
purification, isolation, analysis and sequencing of nucleic
acids, proteins, and other biological molecules. This
industry segment also includes analytical instrument systems
for determining the composition and molecular structure of
chemical substances (both organic and inorganic) and measuring
the concentration of materials in a sample. These instruments
include: spectrophotometers utilizing a number of analytical
techniques; gas and liquid chromatographs; thermal analyzers;
thermal cyclers; analytical balances; flame photometers;
polarimeters; data-handling devices that are principally
designed for use with analytical instruments; and data systems
for applications in analytical chemistry. In a joint venture,
Perkin-Elmer Sciex Instruments, Registrant is engaged in the
manufacture and sale of mass spectrometry instrument systems.
Registrant also develops, manufactures, markets, and services
on-line, real time, process analysis systems to monitor
process quality and environmental purity.
Registrant's instruments are used by private industry,
educational and research institutions, and governmental
entities for fundamental research, applied industrial
research, quality control, medical research, hospital clinical
testing, pollution analysis, drug identification, and
forensics.
MARKETING AND DISTRIBUTION
In the United States, Registrant markets the largest
portion of its products directly through its own sales and
distribution organization, although certain analytical
instruments are marketed through independent distributors and
sales representatives. Sales to major markets outside of the
United States are generally made by foreign sales
subsidiaries, although some sales are made directly from the
United States to foreign customers. In foreign countries
where sales potential does not warrant the establishment of a
sales subsidiary, sales are made through various
representative and distributorship arrangements. Registrant
owns or leases sales and service offices in strategic regional
locations in the United States, and in foreign countries
through its foreign sales subsidiaries and distribution
operations. None of Registrant's products is distributed
through retail outlets.
RAW MATERIALS
There are no specialized raw materials that are
particularly essential to the operation of Registrant's
business. Registrant's manufacturing operations require a
wide variety of raw materials, electronic and mechanical
components, chemical and biochemical materials, and other
supplies, some of which are occasionally found to be in short
supply. Registrant has multiple commercial sources for most
components and supplies but is dependent on single sources for
a limited number of such items, in which case Registrant
normally secures long term supply contracts.
PATENTS, LICENSES, AND FRANCHISES
Registrant has pursued a policy of seeking patent protection
in the United States and other countries for developments,
improvements, and inventions originating within its organization
- 2 -
<PAGE>
which are incorporated in Registrant's
products or which fall within its fields of interest. Certain
licenses under patents have been granted to, and received
from, other entities. Registrant is licensed by Hoffmann-La
Roche Inc. under patents relating to polymerase chain reaction
technology ("PCR"), which patents expire July 28, 2004. In
Registrant's opinion, however, no other single patent or
license, or group of patents or licenses, or any franchise, is
material to its business as a whole.
From time to time, Registrant has asserted that various
competitors and others are infringing Registrant's patents and
similarly, from time to time, others have asserted that
Registrant was infringing patents owned by them. Generally,
such claims are settled by mutual agreement on a satisfactory
basis and have resulted in the granting of licenses by
Registrant or the granting of licenses to Registrant.
SEASONAL FLUCTUATIONS
Registrant's business is not subject to pronounced
seasonal fluctuations.
BACKLOG
Registrant's recorded backlog was approximately $155
million at June 30, 1994 and 1993. With respect to commercial
products, it is Registrant's general policy to include in
backlog only purchase orders or production releases which have
firm delivery dates within one year. Recorded backlog may not
result in sales because of cancellation or other factors. It
is anticipated that all orders included in the current backlog
will be delivered before the close of fiscal year 1995.
UNITED STATES GOVERNMENT SALES
No material portion of Registrant's business is subject
to renegotiation of profits or termination of contracts or
subcontracts at the election of the United States Government.
COMPETITION
The industry segment in which Registrant operates is
highly competitive and is characterized by the application of
advanced technology. There are numerous companies which
specialize in, and a number of larger companies which devote a
significant portion of their resources to, the development,
manufacture, and sale of products which compete with those
manufactured or sold by Registrant. Many of Registrant's
competitors are well-known manufacturers with a high degree of
technical proficiency. In addition, competition is
intensified by the ever-changing nature of the technologies in
the industry in which Registrant is engaged. The markets for
Registrant's products are characterized by specialized
manufacturers that often have strength in narrow segments of
these markets. While the absence of reliable statistics makes
it difficult to determine Registrant's relative market
position, Registrant is confident it is one of the principal
manufacturers in its field, marketing a broad line of
analytical instruments and life science systems. In addition
to competing in terms of the technology that Registrant
offers, Registrant competes in terms of price, service, and
quality.
RESEARCH, DEVELOPMENT, AND ENGINEERING
Registrant is actively engaged in basic and applied
research, development, and engineering programs designed to
develop new products and to improve existing products. During
fiscal years 1994, 1993, and 1992, Registrant spent
approximately $94 million, $84 million, and $81 million,
respectively, on company sponsored research, development, and
engineering activities.
- 3 -
<PAGE>
ENVIRONMENTAL MATTERS
Registrant is subject to federal, state, and local laws
and regulations regulating the discharge of materials into the
environment, or otherwise relating to the protection of the
environment, in those jurisdictions where Registrant operates
or maintains facilities. Registrant does not believe that
compliance with all environmental provisions will have a
material effect on its business, and no material capital
expenditures are expected for environmental control.
EMPLOYEES
As of June 30, 1994, Registrant employed 5,954 persons
worldwide. None of Registrant's United States employees is
subject to collective bargaining agreements.
(d) Financial Information About Foreign and Domestic
Operations and Export Sales.
A summary of net revenues to unaffiliated customers,
operating income, and identifiable assets attributable to each
of Registrant's geographic areas and export sales for the
fiscal years 1994, 1993, and 1992 is incorporated herein by
reference to Note 6 on Pages 38-40 of the Annual Report to
Shareholders for the fiscal year ended June 30, 1994.
Registrant's consolidated net revenues to unaffiliated
customers in countries other than the United States for the
fiscal years 1994, 1993, and 1992 were approximately $607
million, $607 million, and $558 million, or approximately 59%,
60%, and 58%, respectively, of Registrant's consolidated net
revenues.
All of the Registrant's manufacturing facilities outside
of the continental United States are located in Germany, the
United Kingdom, the Commonwealth of Puerto Rico, Japan, and
the Peoples Republic of China. There are currently no
material foreign exchange controls or similar limitations
restricting the repatriation to the United States of capital
or earnings from operations outside the United States.
(e) Discontinued Operations
On July 29, 1993, Registrant announced its plans to
divest Metco headquartered in Westbury, New York. Metco
produces combustion, electric arc and plasma thermal spray
equipment and supplies. Registrant has entered into an
agreement with Sulzer Inc., a wholly-owned subsidiary of
Sulzer Ltd., Winterthur, Switzerland for the sale of Metco.
The completion of the sale is subject to closing conditions,
including obtaining relevant government regulatory approvals.
The transaction has taken longer to complete than expected due
primarily to obtaining necessary government approvals in both
the U.S. and Europe. As a result of this and negative
operating factors, Registrant recorded an after-tax loss on
disposal of $7.7 million during the fourth quarter of fiscal
year 1994.
On October 5, 1992, prior to its merger with Registrant,
ABI announced the decision to distribute to its shareholders
approximately 82% of the stock of its subsidiary, Lynx
Therapeutics, Inc. ("Lynx"), the successor to ABI's
therapeutics division. The financial statements reflect the
Lynx operating results as a discontinued operation. The net
assets of Lynx were not significant.
- 4 -
<PAGE>
Item 2. PROPERTIES
Listed below are the principal facilities of Registrant
as of June 30, 1994. Registrant considers all facilities
listed below to be reasonably appropriate for the purpose(s)
for which they are used, including manufacturing, research and
development, and administrative purposes. All properties are
maintained in good working order and, except for those held
for sale or lease, are substantially utilized on the basis of
at least one shift. None of the leased facilities is leased
from an affiliate of Registrant.
Owned or Expiration Approximate
Location Leased Date of Floor Area
Lease In Sq. Ft
Norwalk, CT Owned 402,000
Wilton, CT Owned 262,000
San Jose, CA Owned 81,000
Beaconsfield, England Owned 70,000
Ueberlingen, Germany Owned 65,000
Warrington, England Owned 58,000
Narita, Japan Owned 24,000
Irvine, CA Owned 22,000
Foster City, CA Leased 1994-2000 319,000
Ueberlingen, Germany Leased 1995-2001 196,000
Llantrinsant, Wales Leased 1996 113,000
Mayaguez, Puerto Rico Leased 1997-1998 34,000
Oberschleissheim, Germany Leased 1995 19,000
Beaconsfield, England Leased 2005 8,000
Beijing, China Leased 1996 350
In addition to the facilities listed above, Registrant
leases space in certain industrial centers for use as sales
and service offices and for warehousing. Registrant also owns
undeveloped land in Redding, Connecticut, San Jose and
Vacaville, California and Oberschleissheim, Germany.
In addition to the properties used by Registrant in its
operations, Registrant owns three facilities in Wilton,
Connecticut (aggregating approximately 248,000 square feet)
which are currently leased to SVG Lithography Systems, Inc.
for a term expiring in 2010, a facility in Garden Grove,
California (approximately 82,000 square feet) which is
currently leased to OCA Applied Optics, Inc. for a term
expiring in 1995, and a facility in Pomona, California
(approximately 135,000 square feet) which is currently leased
to Orbital Sciences Corporation for a term expiring in 2003.
Registrant also owns a facility in Ridgefield, Connecticut
(approximately 201,000 square feet), a facility in Wilton,
Connecticut (approximately 51,000 square feet), and a facility
in San Jose, California (approximately 67,000 square feet)
which are held for sale or lease.
- 5 -
<PAGE>
Listed below are the principal facilities utilized as of
June 30, 1994 by Metco, which is being accounted for as a
discontinued operation. Registrant considers such facilities
to be reasonably appropriate for the purpose(s) for which they
are used, including manufacturing, research and development,
and administrative purposes. All properties are maintained in
good working order and are substantially utilized on the basis
of at least one shift.
Approximate
Owned or Floor Area
Location Leased In Sq. Ft.
Westbury, NY Owned 137,000
Duffy Avenue, Hicksville, NY Owned 103,000
Chobham-Woking, England Owned 78,000
Hattersheim, Germany Owned 69,000
Miller Place, Hicksville, NY Owned 59,000
Item 3. LEGAL PROCEEDINGS
The Corporation has been named as a defendant in several
legal actions arising from the conduct of its normal business
activities. Although the amount of any liability that might
arise with respect to any of these matters cannot be
accurately predicted, the resulting liability, if any, will
not in the opinion of management of Registrant have a material
adverse effect on the financial statements of Registrant. In
addition, although no legal claim was filed, the Corporation
participated in the United States government's investigation
of the Hubble Space Telescope. Registrant settled all of the
government's potential claims with regard to this matter on
October 4, 1993, for $15 million.
Registrant is one of approximately 125 third party
defendants named in United States of America v. Davis et al.
which is pending in the United States District Court for the
District of Rhode Island. The third party plaintiffs, who
were named as defendants and potentially responsible parties
in the Government's initial complaint, seek equitable
contribution and indemnification in the event they are found
liable for remediation costs relating to the removal of
hazardous substances from a site located in Smithfield, Rhode
Island (initially estimated by the Government to be $27.8
million but most recently estimated to be $77.5 million). A
trial on the question of the third party plaintiffs' liability
to the Government has been held, but no decision has been
rendered. Until the liability of the third party plaintiffs
has been established, the court will not consider the amount
of any such liability or the validity of any third party
claims. While the Registrant contends that it should have no
liability in this case, because of the uncertainty of all
litigation, it cannot definitively state that it will incur
less than $100,000 in monetary sanctions.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF
SECURITY HOLDERS
No matter was submitted to a vote of security holders,
through the solicitation of proxies or otherwise, during the
fourth quarter of the fiscal year covered by this report.
- 6 -
<PAGE>
PART II
Item 5. MARKET FOR REGISTRANT'S COMMON EQUITY
AND RELATED STOCKHOLDER MATTERS
(a) Market Information.
The principal United States market where Registrant's
Common Stock is traded is the New York Stock Exchange,
although such stock is also traded on the Pacific Stock
Exchange.
The following information, which appears in Registrant's
Annual Report to Shareholders for the fiscal year ended June
30, 1994, is hereby incorporated by reference in this Form 10-
K: the high and low sales prices of Registrant's Common Stock
for each quarterly period during the fiscal years 1994 and
1993 (Note 14, Page 43 of the Annual Report to Shareholders).
(b) Holders.
On September 6, 1994, the approximate number of holders
of Common Stock of Registrant was 8,975. The approximate
number of record holders is based upon the actual number of
holders registered in the books of Registrant at such date and
does not include holders of shares in "street name" or
persons, partnerships, associations, corporations, or other
entities identified in security position listings maintained
by depositary trust companies. Note: the calculation of the
number of shares of Registrant's Common Stock held by non-
affiliates shown on the cover of this Form 10-K was made on
the assumption that there were no affiliates other than
executive officers and directors.
(c) Dividends.
The following information which appears in Registrant's
Annual Report to Shareholders for the fiscal year ended June
30, 1994, is hereby incorporated by reference in this Form 10-
K: the amount of quarterly dividends paid during the fiscal
years 1994 and 1993 (Note 14, Page 43 of the Annual Report to
Shareholders).
Item 6. SELECTED FINANCIAL DATA
Registrant hereby incorporates by reference in this Form
10-K Page 20 of Registrant's Annual Report to Shareholders for
the fiscal year ended June 30, 1994.
Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Registrant hereby incorporates by reference in this Form
10-K Pages 21-25 of Registrant's Annual Report to Shareholders
for the fiscal year ended June 30, 1994.
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<PAGE>
Item 8. FINANCIAL STATEMENTS AND
SUPPLEMENTARY DATA
The following financial statements and the supplementary
financial information included in Registrant's Annual Report
to Shareholders for the fiscal year ended June 30, 1994 are
incorporated by reference in this Form 10-K: the Consolidated
Financial Statements and the report thereon of Price
Waterhouse LLP dated July 28, 1994, and Pages 26-45 of said
Annual Report, including Note 14, Page 43, which contains
unaudited quarterly financial information.
Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE
Registrant has not changed its public accounting firm
within 24 months prior to June 30, 1994, the date of
Registrant's most recent financial statements.
- 8 -
<PAGE>
PART III
Item 10. DIRECTORS AND EXECUTIVE OFFICERS
OF THE REGISTRANT
(a) Identification and Background of Directors.
Registrant hereby incorporates by reference in this Form 10-K
Pages 2-4 of Registrant's Proxy Statement dated September 16, 1994,
in connection with its Annual Meeting of Shareholders to be held on
October 20, 1994.
(b) Identification of Executive Officers.
The following is a list of Registrant's executive officers,
their ages, and their positions and offices with the Registrant, as
of September 14, 1994.
<TABLE>
<S> <C> <C>
Name Age Present Positions and Year First Elected
William F. Emswiler 50 Vice President, Finance, Chief Financial Officer (1992)
Julianne A. Grace 56 Vice President (1986), Corporate Relations (1990)
Gaynor N. Kelley 63 Chairman and Chief Executive Officer (1990)
Joseph E. Malandrakis 49 Vice President, Worldwide Operations (1993)
Andre F. Marion 58 Vice President and President, Applied Biosystems Division (1993)
John B. McBennett 56 Corporate Controller (1993)
Michael J. McPartland 45 Vice President, Human Resources (1993)
Riccardo Pigliucci 47 President and Chief Operating Officer (1993)
William B. Sawch 40 Vice President, General Counsel and Secretary (1993)
Rhonda L. Seegal 44 Vice President (1991), Treasurer (1988)
</TABLE>
Each of the foregoing named officers was either elected at the
last organizational meeting of the Board of Directors held on
October 21, 1993 or was elected by the Board since that date. The
term of each officer will expire on October 20, 1994, the date of
the next scheduled organizational meeting of the Board of
Directors, unless renewed for another year.
(c) Identification of Certain Significant Employees.
Not applicable.
(d) Family Relationships.
To the best of Registrant's knowledge and belief, there is no
family relationship between any of Registrant's directors,
executive officers, or persons nominated or chosen by Registrant to
become a director or an executive officer.
(e) Business Experience.
With respect to the business experience of Registrant's
directors and persons nominated to become directors, Registrant
hereby incorporates by reference in this Report on Form 10-K Pages
2-4 of Registrant's Proxy Statement dated September 16, 1994, in
connection with its Annual Meeting of Shareholders to be held on
October 20, 1994. With respect to the executive officers of
Registrant, each such officer has been employed by Registrant or a
subsidiary in one or more executive or managerial capacities for at
least the past five years, with the exception of Messrs.
- 9 -
<PAGE>
Emswiler, Marion, and McPartland. Mr. Emswiler was elected Vice President
of Registrant on May 21, 1992. Prior to his employment by Registrant
in May, 1992, Mr. Emswiler was employed by Aquarion Company, a
diversified water-quality and related services corporation, for
three years, most recently as Senior Vice President and Chief
Financial Officer, and prior to that he was employed by American
Home Products Corporation, a worldwide manufacturer and marketer of
prescription drugs, medical supplies and diagnostics, over-the-
counter medicines, and food products, as Vice President and
Comptroller and Vice President and Treasurer. Mr. Marion was
elected Vice President of Registrant on February 18, 1993. Prior
to his employment by Registrant in February, 1993, Mr. Marion was
employed by ABI as Chairman of the Board and Chief Executive
Officer. Mr. Marion was one of the founders of ABI, and had been
President since 1985. Mr. McPartland was elected Vice President of
Registrant on February 18, 1993. Prior to his employment by
Registrant in January, 1993, Mr. McPartland was employed by
SmithKline Beecham plc, a worldwide manufacturer of pharmaceutical
and consumer products and clinical laboratory services, from 1980
to 1993, most recently as Senior Vice President and Director,
Corporate Personnel.
(f) Involvement in Certain Legal Proceedings.
To the best of Registrant's knowledge and belief, none of
Registrant's directors, persons nominated to become directors, or
executive officers has been involved in any proceedings during the
past five years that are material to an evaluation of the ability
or integrity of such persons to be directors or executive officers
of Registrant.
(g) Compliance with Section 16(a) of the Securities Exchange
Act of 1934.
Information concerning compliance with Section 16(a) of the
Securities Exchange Act of 1934 is incorporated by reference to
Page 7 of Registrant's Proxy Statement dated September 16, 1994, in
connection with its Annual Meeting of Shareholders to be held on
October 20, 1994.
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<PAGE>
Item 11. EXECUTIVE COMPENSATION
Registrant hereby incorporates by reference in this Form 10-K
Pages 5-13 of Registrant's Proxy Statement dated September 16,
1994, in connection with its Annual Meeting of Shareholders to be
held on October 20, 1994.
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
(a) Security Ownership of Certain Beneficial Owners.
Registrant hereby incorporates by reference in this Form 10-K
Page 6 of Registrant's Proxy Statement dated September 16, 1994, in
connection with its Annual Meeting of Shareholders to be held on
October 20, 1994.
(b) Security Ownership of Management.
Information concerning the security ownership of management is
hereby incorporated by reference to Pages 2-4 and 6-7 of
Registrant's Proxy Statement dated September 16, 1994, in
connection with its Annual Meeting of Shareholders to be held on
October 20, 1994.
(c) Changes in Control.
Registrant knows of no arrangements, including any pledge by
any person of securities of Registrant, which may at a subsequent
date result in a change in control of Registrant.
Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
- 11 -
<PAGE>
PART IV
Item 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
AND REPORTS ON FORM 8-K
(a) 1. Financial Statements.
The following consolidated financial statements, together with
the report thereon of Price Waterhouse LLP dated July 28, 1994,
appearing on Pages 26 through 45 of Registrant's Annual Report to
Shareholders for the fiscal year ended June 30, 1994, are
incorporated by reference in this Form 10-K. With the exception of
the aforementioned information and that which is specifically
incorporated in Parts I and II, the Annual Report to Shareholders
for the fiscal year ended June 30, 1994, is not to be deemed filed
as part of this report on Form 10-K.
10-K Annual
Page No. Report
Page No.
Consolidated Statements of
Operations - fiscal years
1994, 1993, and 1992 -- 26
Consolidated Statements of
Financial Position - fiscal years
1994, 1993, and 1992 -- 27
Consolidated Statements of
Cash Flows - fiscal years
1994, 1993, and 1992 -- 28
Consolidated Statements of
Shareholders' Equity - fiscal years
1994, 1993, and 1992 -- 29
Notes to Consolidated Financial
Statements -- 30-43
Statement of Financial
Responsibility -- 44
Report of
Price Waterhouse LLP -- 45
Report of
Deloitte & Touche LLP 25 --
- 12 -
<PAGE>
(a) 2. Financial Statement Schedules.
The following additional financial data should be read in
conjunction with the consolidated financial statements in said
Annual Report to Shareholders for the fiscal year ended June 30,
1994. Schedules not included with this additional financial data
have been omitted because they are not applicable or the required
information is shown in the consolidated financial statements or
notes thereto.
Annual
10-K Page Report
No. Page No.
Report of Independent Accountants
on Financial Statement Schedules 18 --
Schedule VIII - Valuation and
Qualifying Accounts and Reserves 19 --
Schedule IX - Short-Term Borrowings 20 --
Schedule X - Supplementary
Income Statement Information 21 --
- 13 -
<PAGE>
(a) 3. Exhibits.
Exhibit
No.
2(1) Acquisition Agreement dated July 19, 1991, among the
Corporation, Hoffmann-La Roche Inc., and Roche Probe,
Inc. (Incorporated by reference to Exhibit 1 to
Current Report on Form 8-K of the Corporation dated
July 19, 1991 (Commission file number 1-4389).)
2(2) Acquisition Agreement dated July 19, 1991, between
the Corporation and F. Hoffmann-La Roche Ltd.
(Incorporated by reference to Exhibit 2 to Current
Report on Form 8-K of the Corporation dated July 19,
1991 (Commission file number 1-4389)).
2(3) Agreement and Plan of Merger, by and among
Registrant, Sequence Acquisition Company and Applied
Biosystems, Inc. dated as of October 6, 1992.
(Incorporated by reference to Exhibit 2 to Current
Report on Form 8-K of the Corporation dated October
6, 1992 (Commission file number 1-4389).)
2(4) Agreement dated April 18, 1994 between Sulzer Inc.
and The Perkin-Elmer Corporation, as amended through
August 31, 1994.
3(i) Restated Certificate of Incorporation of the
Corporation, as amended through July 1, 1994.
3(i) Amended and Restated By-laws of the Corporation, as
amended through July 15, 1993. (Incorporated by
reference to Exhibit 3(ii) to Annual Report on Form
10-K of the Corporation for fiscal year ended June
30, 1993 (Commission file number 1-4389).)
4(1) Three Year Credit Agreement dated June 1, 1994, among
Morgan Guaranty Trust Company, certain banks named in
such Agreement, and the Corporation.
4(2) Shareholder Protection Rights Agreement dated April
30, 1989, between The Perkin-Elmer Corporation and
The First National Bank of Boston. (Incorporated by
reference to Exhibit 4 to Current Report on Form 8-K
of the Corporation dated April 20, 1989 (Commission
file number 1-4389).)
10(1) The Perkin-Elmer Corporation 1974 Stock Option Plan
for Key Employees, as amended through May 21, 1987.
(Incorporated by reference to Exhibit 28(a) to Post
Effective Amendment No. 1 to the Corporation's
Registration Statement on Form S-8 (No. 2-95451).)
10(2) The Perkin-Elmer Corporation 1981 Incentive Stock
Option Plan for Key Employees, as amended through May
21, 1987. (Incorporated by reference to Exhibit
28(b) to Post Effective Amendment No. 1 to the
Corporation's Registration Statement on Form S-8 (No.
2-95451).)
10(3) The Perkin-Elmer Corporation 1984 Stock Option Plan
for Key Employees, as amended through May 21, 1987.
(Incorporated by reference to Exhibit 28(c) to Post
Effective Amendment No. 1 to the Corporation's
Registration Statement on Form S-8 (No. 2-95451).)
10(4) The Perkin-Elmer Corporation 1988 Stock Incentive
Plan for Key Employees. (Incorporated by reference
to Exhibit 10(4) to Annual Report on Form 10-K of the
Corporation for the fiscal year ended July 31, 1988
(Commission file number 1-4389).)
10(5) The Perkin-Elmer Corporation 1993 Stock Incentive
Plan for Key Employees. (Incorporated by reference
to Exhibit 99 to the Corporation's Registration
Statement on Form S-8 (No. 33-50847).)
10(6) Contingent Compensation Plan for Key Employees of The
Perkin-Elmer Corporation, as amended through August
1, 1990. (Incorporated by reference to Exhibit 10(5)
to Annual Report on Form 10-K of the Corporation for
the fiscal year ended July 31, 1992 (Commission file
number 1-4389).)
10(7) The Perkin-Elmer Corporation Supplemental Retirement
Plan as amended through August 1, 1991. (Incorporated
by reference to Exhibit 10(6) to Annual Report on
Form 10-K of the Corporation for the fiscal year
ended July 31, 1991 (Commission file number 1-4389).)
10(8) Deferred Compensation Contract dated July 29, 1974,
as amended through January 20, 1994, between
Registrant and Gaynor N. Kelley.
10(9) Deferred Compensation Contract dated September 22,
1989, between Registrant and Riccardo Pigliucci, as
amended through April 15, 1993. (Incorporated by
reference to Exhibit 10(9) to Annual Report on Form
10-K of the Corporation for the fiscal year ended
June 30, 1993 (Commission file number 1-4389).)
- 14 -
<PAGE>
10(10) Deferred Compensation Contract dated May 21, 1992,
between Registrant and William F. Emswiler.
(Incorporated by reference to Exhibit 10(10) to
Annual Report on Form 10-K of the Corporation for the
fiscal year ended July 31, 1992 (Commission file
number 1-4389).)
10(11) Deferred Compensation Contract dated February 18,
1993, between Registrant and Andre F. Marion.
10(12) Deferred Compensation Contract dated January 21,
1993, between Registrant and Joseph E. Malandrakis.
(Incorporated by reference to Exhibit 10(11) to
Annual Report on Form 10-K of the Corporation for the
fiscal year ended June 30, 1993 (Commission file
number 1-4389).)
10(13) Employment Agreement dated November 21, 1991, between
Registrant and Gaynor N. Kelley. (Incorporated by
reference to Exhibit 10(1) to Quarterly Report on
Form 10-Q of the Corporation for the fiscal quarter
ended January 31, 1992 (Commission file number 1-
4389).)
10(14) Employment Agreement dated November 21, 1991, between
Registrant and Riccardo Pigliucci. (Incorporated by
reference to Exhibit 10(3) to Quarterly Report on
Form 10-Q of the Corporation for the fiscal quarter
ended January 31, 1992 (Commission file number 1-
4389).)
10(15) Employment Agreement dated May 21, 1992, between
Registrant and William F. Emswiler. (Incorporated by
reference to Exhibit 10(15) to Annual Report on Form
10-K of the Corporation for the fiscal year ended
July 31, 1992 (Commission file number 1-4389).)
10(16) Employment Agreement dated November 1, 1990 as
amended through December 3, 1992, between Registrant
and Andre F.Marion.
10(17) Employment Agreement dated November 21, 1991, between
Registrant and Joseph E. Malandrakis. (Incorporated
by reference to Exhibit 10(16) to Annual Report on
Form 10-K of the Corporation for the fiscal year
ended June 30, 1993 Commission file number 1-4389).)
10(18) Consulting Agreement dated March 17, 1994, between
Registrant and Robert H. Hayes.
10(19) The Excess Benefit Plan of The Perkin-Elmer
Corporation dated August 1, 1984 as amended through
June 30, 1993. (Incorporated by reference to Exhibit
10(18) to Annual Report on Form 10-K of the
Corporation for the fiscal year ended June 30, 1993
(Commission file number 1-4389).)
10(20) 1993 Director Stock Purchase and Deferred
Compensation Plan. (Incorporated by reference to
Exhibit 99 to the Corporation's Registration
Statement on Form S-8 (No. 33-50849).)
10(21) Consulting Agreement dated September 16, 1994,
between Registrant and Andre F. Marion.
11 Computation of Net Income (Loss) per Share for the
five years ended June 30, 1994.
13 Annual Report to Shareholders for 1994.
21 List of Subsidiaries.
23(1) Consent of Price Waterhouse LLP.
23(2) Consent of Deloitte & Touche LLP.
27 Financial Data Schedule.
Note: None of the Exhibits listed in Item 14(a) 3 above, except
Exhibits 11, 23(1) and 23(2) are included with this Form 10-K
Annual Report. Registrant will furnish a copy of any such Exhibit
upon written request to the Secretary at the address on the cover
of this Form 10-K Annual Report accompanied by payment of $3 for
each Exhibit requested.
(b) Reports on Form 8-K
Registrant did not file a report on Form 8-K during the last
quarter of the period covered by this report.
- 15 -
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, Registrant has duly caused this
report to be signed on its behalf by the undersigned, thereunto
duly authorized.
THE PERKIN-ELMER CORPORATION
By /s/ William B. Sawch
William B. Sawch
Vice President, General Counsel
and Secretary
Date: September 15, 1994
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons on
behalf of Registrant and in the capacities and on the dates
indicated.
/s/ G. N. Kelley September 15, 1994
Gaynor N. Kelley
Chairman of the Board of Directors,
Chief Executive Officer
(Principal Executive Officer)
/s/ W. F. Emswiler September 15, 1994
William F. Emswiler
Vice President, Finance, Chief Financial Officer
(Principal Financial Officer)
/s/ John B. McBennett September 15, 1994
John B. McBennett
Corporate Controller
(Principal Accounting Officer)
- 16 -
<PAGE>
/s/ Joseph F. Abely, Jr. September 15, 1994
Joseph F. Abely, Jr.
Director
/s/ Richard H. Ayers September 15, 1994
Richard H. Ayers
Director
/s/ Jean-Luc Belingard September 15, 1994
Jean-Luc Belingard
Director
/s/ Robert H. Hayes September 15, 1994
Robert H. Hayes
Director
/s/ Donald R. Melville September 15, 1994
Donald R. Melville
Director
/s/ Riccardo Pigliucci September 15, 1994
Riccardo Pigliucci
Director
/s/ Burnell R. Roberts September 15, 1994
Burnell R. Roberts
Director
/s/ John S. Scott September 15, 1994
John S. Scott
Director
/s/ Carolyn W. Slayman September 15, 1994
Carolyn W. Slayman
Director
/s/ Richard F. Tucker September 15, 1994
Richard F. Tucker
Director
-17 -
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULES
To the Board of Directors
of The Perkin-Elmer Corporation
Our audits of the consolidated financial statements referred
to in our report dated July 28, 1994, appearing on Page 45 of the
1994 Annual Report to Shareholders of The Perkin-Elmer Corporation
(which report and consolidated financial statements are
incorporated by reference in this Annual Report on Form 10-K) also
included an audit of the Financial Statement Schedules listed in
Item 14(a)2 of this Form 10-K. We did not audit the Financial
Statement Schedules of Applied Biosystems, Inc., a wholly owned
subsidiary, as of and for the year ended July 31, 1992. Those
schedules were audited by other auditors, whose report thereon has
been furnished to us, and our opinion expressed herein, insofar as
it relates to the amounts included for Applied Biosystems, Inc., is
based solely on the report of other auditors. Based upon our
audits and the report of other auditors, these Financial Statement
Schedules present fairly, in all material respects, the information
set forth therein when read in conjunction with the related
consolidated financial statements.
PRICE WATERHOUSE LLP
Stamford, Connecticut
July 28, 1994
- 18 -
<PAGE>
THE PERKIN-ELMER CORPORATION
VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
FOR THE FISCAL YEARS ENDED JUNE 30, 1994 AND 1993, AND JULY 31, 1992
(Amounts in thousands)
ALLOWANCE FOR
DOUBTFUL
ACCOUNTS(1)
Balance at July 31, 1991 $ 5,636
Charged to income in 1992 2,671
Deductions from reserve in 1992 (549)
Balance at July 31, 1992 7,758
Charged to income in 1993 4,229
Deductions from reserve in 1993 (3,761)
Balance at June 30, 1993 8,226
Charged to income in 1994 2,927
Deductions from reserve in 1994 (3,906)
Balance at June 30, 1994 $ 7,247
(1) Deducted in the Consolidated Statements of Financial Position
from accounts receivable.
SCHEDULE VIII
- 19 -
<PAGE>
THE PERKIN-ELMER CORPORATION
SHORT-TERM BORROWINGS
FOR THE YEARS ENDED JUNE 30, 1994 AND 1993, AND JULY 31, 1992
(Amounts in thousands)
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E COLUMN F
Maximum Average Weighted
Category Weighted Month-End Amount Average
of Balance Average Amount Outstandi Interest
Aggregate At End of Interest Outstandi ng During Rate
Short-Term Period Rate At ng During the During
Borrowings End of the Period the
(a) Period Period (b) Period
(c)
1994
Bank
Borrowings $67,752 6.2% $72,262 $57,324 6.1%
Commercial
Paper 15,800 4.5% 58,250 41,142 3.5%
1993
Bank
Borrowings $56,932 6.3% $85,748 $52,975 8.9%
Commercial
Paper 17,050 3.2% 99,800 74,502 3.4%
1992
Bank
Borrowings $34,262 9.4% $60,456 $43,941 10.2%
Commercial
Paper 63,932 3.7% 78,100 71,382 4.9%
(a) Commercial Paper refers to unsecured debt
obligations maturing in fixed periods that range from 30 to
180 days; interest at fixed rates is payable on maturity. Bank
Borrowings are unsecured debt obligations including those
due on demand, as well as those with fixed terms. With respect
to some Bank Borrowings, interest rates are fixed; in other cases,
interest floats in accordance with a prescribed index.
(b) The average amount outstanding during the period was
determined on the basis of average month-end balances of Bank
Borrowings and average daily balances for Commercial Paper
borrowings.
(c) For Bank Borrowings and Commercial Paper, the
weighted average interest rate during the period was computed by
dividing the interest expense for the year by the average amount of
short-term borrowings outstanding during the period.
SCHEDULE IX
- 20 -
<PAGE>
THE PERKIN-ELMER CORPORATION
SUPPLEMENTARY INCOME STATEMENT INFORMATION
(Amounts in thousands)
The following items have been charged to costs and expenses as
stated:
For the years ended
June 30, June 30, July 31,
1994 1993 1992
Maintenance and repairs $17,210 $16,712 $15,763
Advertising costs $19,325 $17,857 $15,826
The following items have been charged to costs and expenses but do
not exceed one percent of net revenues by category:
- Amortization of intangible assets
- Royalties
- Taxes, other than payroll and income taxes
SCHEDULE X
- 21 -
<PAGE>
THE PERKIN-ELMER CORPORATION
COMPUTATION OF NET INCOME(LOSS) PER SHARE
(Dollar amounts in thousands, except per share amounts)
<TABLE>
<CAPTION> 1994 1993 1992 1991 1990
<S> <C> <C> <C> <C> <C>
Weighted average number of
common shares 43,857 43,780 43,526 42,091 49,705
Common stock equivalents-
stock options 816 1,173 1,169 - 130
Weighted average number of
common shares used in
calculating primary
earnings per share 44,673 44,953 44,695 42,091 49,835
Additional dilutive stock
options under paragraph #42
APB #15 172 97 280 - -
Shares used in calculating
fully diluted earnings
per share 44,845 45,050 44,975 42,091 49,835
Calculation of primary and
fully diluted earnings per
share:
PRIMARY AND FULLY DILUTED:
Income (loss) from
continuing operations $ 73,978 $ 24,444 $ 24,296 $ (16,384) $ 27,697
Income (loss) from
discontinued operations (22,851) 1,714 10,941 (2,020) 20,913
Income (loss) before cumulative
effect of changes in
accounting principles 51,127 26,158 35,237 (18,404) 48,610
Cumulative effect on prior years
of changes in accounting principles - (83,098) - - -
Net income (loss) used in the
calculations of primary and
fully diluted earnings per share $ 51,127 $ (56,940) $ 35,237 $ (18,404) $ 48,610
PRIMARY:
Per share amounts:
Income (loss)
from continuing operations $ 1.66 $ .54 $ .54 $ (.39) $ .56
Income (loss)
from discontinued operations (.52) .04 .25 (.05) .42
Income (loss) before
cumulative effect of changes
in accounting principles 1.14 .58 .79 (.44) .98
Loss from cumulative effect on
prior years of changes in
accounting principles - (1.85) - - -
Net income (loss) $ 1.14 $ (1.27) $ .79 $ (.44) $ .98
FULLY DILUTED:
Per share amounts:
Income (loss)
from continuing operations $ 1.65 $ .54 $ .54 $ (.39) $ .56
Income (loss)
from discontinued operations (.51) .04 .24 (.05) .42
Income (loss) before
cumulative effect of changes
in accounting principles 1.14 .58 .78 (.44) .98
Loss from cumulative effect on
prior years of changes in
accounting principles - (1.84) - - -
Net income (loss) $ 1.14 $ (1.26) $ .78 $ ( .44) $ .98
</TABLE>
EXHIBIT 11
- 22 -
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectuses constituting part of the Registration Statements on
Form S-8 (Nos. 2-95451, 33-25218, 33-44191, 33-50847, 33-50849, and
33-58778) of The Perkin-Elmer Corporation of our report dated July
28, 1994, appearing on page 45 of the Annual Report to Shareholders
for 1994 of The Perkin-Elmer Corporation which is incorporated in
this Annual Report on Form 10-K. We also consent to the
incorporation by reference of our report on the Financial Statement
Schedules, which appears on page 18 of this Form 10-K.
PRICE WATERHOUSE LLP
Stamford, Connecticut
September 21, 1994
- 23 -
<PAGE>
Deloitte & Touche LLP [LOGO]
50 Fremont Street
San Francisco, California
94105-2230
Telephone: (415) 247-4000
Facsimile: (415) 247-4329
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration
Statements of The Perkin-Elmer Corporation on Form S-8 (Nos. 2-
95451, 33-25218, 33-44191, 33-50847, 33-50849, and 33-58778) of our
report dated July 29, 1992 (November 5, 1992 as to Notes 13 and 14)
(related to the consolidated financial statements and financial
statement schedules of Applied Biosystems, Inc. not
presented separately therein) appearing in the Annual
Report on Form 10-K of The Perkin-Elmer Corporation for the
year ended June 30, 1994.
DELOITTE & TOUCHE LLP
September 21, 1994
[LOGO]
- 24 -
<PAGE>
Deloitte & Touche LLP [LOGO]
50 Fremont Street
San Francisco, California 94105-2230
Telephone: (415) 247-4000
Facsimile: (415) 247-4329
INDEPENDENT AUDITORS' REPORT
The Shareholders and Board of Directors
of Applied Biosystems, Inc.:
We have audited the consolidated balance sheet of Applied
Biosystems, Inc. as of June 30, 1992, and the related
consolidated statements of operations, shareholders' equity
and cash flows for the fiscal year then ended (not presented
separately herein). Our audit also included the financial
statement schedules (not presented separately herein).
These financial statements and financial statement schedules
are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial
statements and financial statement schedules based on our audit.
We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan
and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by
management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides
a reasonable basis for our opinion.
In our opinion, such consolidated financial statements
present fairly, in all material respects, the financial
position of Applied Biosystems, Inc. at June 30, 1992, and
the results of its operations and its cash flows for the
fiscal year then ended in conformity with generally accepted
accounting principles. Also, in our opinion, such financial
statement schedules, when considered in relation to the basic
consolidated financial statements taken as a whole, present
fairly, in all material respects, the information set forth
therein.
As discussed in Note 13, the consolidated statement of
operations for the fiscal year ended June 30, 1992 has been
reclassified to present the Company's subsidiary, Lynx
Therapeutics, Inc., as a discontinued operation.
Deloitte & Touche LLP
July 29, 1992 (November 5, 1992
as to Notes 13 and 14)
[LOGO]
-25-
<PAGE>
EXHIBIT INDEX
Exhibit
No.
2(1) Acquisition Agreement dated July 19, 1991, among the
Corporation, Hoffmann-La Roche Inc., and Roche Probe,
Inc. (Incorporated by reference to Exhibit 1 to
Current Report on Form 8-K of the Corporation dated
July 19, 1991 (Commission file number 1-4389).)
2(2) Acquisition Agreement dated July 19, 1991, between
the Corporation and F. Hoffmann-La Roche Ltd.
(Incorporated by reference to Exhibit 2 to Current
Report on Form 8-K of the Corporation dated July 19,
1991 (Commission file number 1-4389)).
2(3) Agreement and Plan of Merger, by and among
Registrant, Sequence Acquisition Company and Applied
Biosystems, Inc. dated as of October 6, 1992.
(Incorporated by reference to Exhibit 2 to Current
Report on Form 8-K of the Corporation dated October
6, 1992 (Commission file number 1-4389).)
2(4) Agreement dated April 18, 1994 between Sulzer Inc.
and The Perkin-Elmer Corporation, as amended through
August 31, 1994.
3(i) Restated Certificate of Incorporation of the
Corporation, as amended through July 1, 1994.
3(i) Amended and Restated By-laws of the Corporation, as
amended through July 15, 1993. (Incorporated by
reference to Exhibit 3(ii) to Annual Report on Form
10-K of the Corporation for fiscal year ended June
30, 1993 (Commission file number 1-4389).)
4(1) Three Year Credit Agreement dated June 1, 1994, among
Morgan Guaranty Trust Company, certain banks named in
such Agreement, and the Corporation.
4(2) Shareholder Protection Rights Agreement dated April
30, 1989, between The Perkin-Elmer Corporation and
The First National Bank of Boston. (Incorporated by
reference to Exhibit 4 to Current Report on Form 8-K
of the Corporation dated April 20, 1989 (Commission
file number 1-4389).)
10(1) The Perkin-Elmer Corporation 1974 Stock Option Plan
for Key Employees, as amended through May 21, 1987.
(Incorporated by reference to Exhibit 28(a) to Post
Effective Amendment No. 1 to the Corporation's
Registration Statement on Form S-8 (No. 2-95451).)
10(2) The Perkin-Elmer Corporation 1981 Incentive Stock
Option Plan for Key Employees, as amended through May
21, 1987. (Incorporated by reference to Exhibit
28(b) to Post Effective Amendment No. 1 to the
Corporation's Registration Statement on Form S-8 (No.
2-95451).)
10(3) The Perkin-Elmer Corporation 1984 Stock Option Plan
for Key Employees, as amended through May 21, 1987.
(Incorporated by reference to Exhibit 28(c) to Post
Effective Amendment No. 1 to the Corporation's
Registration Statement on Form S-8 (No. 2-95451).)
10(4) The Perkin-Elmer Corporation 1988 Stock Incentive
Plan for Key Employees. (Incorporated by reference
to Exhibit 10(4) to Annual Report on Form 10-K of the
Corporation for the fiscal year ended July 31, 1988
(Commission file number 1-4389).)
10(5) The Perkin-Elmer Corporation 1993 Stock Incentive
Plan for Key Employees. (Incorporated by reference
to Exhibit 99 to the Corporation's Registration
Statement on Form S-8 (No. 33-50847).)
10(6) Contingent Compensation Plan for Key Employees of The
Perkin-Elmer Corporation, as amended through August
1, 1990. (Incorporated by reference to Exhibit 10(5)
to Annual Report on Form 10-K of the Corporation for
the fiscal year ended July 31, 1992 (Commission file
number 1-4389).)
10(7) The Perkin-Elmer Corporation Supplemental Retirement
Plan as amended through August 1, 1991. (Incorporated
by reference to Exhibit 10(6) to Annual Report on
Form 10-K of the Corporation for the fiscal year
ended July 31, 1991 (Commission file number 1-4389).)
10(8) Deferred Compensation Contract dated July 29, 1974,
as amended through January 20, 1994, between
Registrant and Gaynor N. Kelley.
10(9) Deferred Compensation Contract dated September 22,
1989, between Registrant and Riccardo Pigliucci, as
amended through April 15, 1993. (Incorporated by
reference to Exhibit 10(9) to Annual Report on Form
10-K of the Corporation for the fiscal year ended
June 30, 1993 (Commission file number 1-4389).)
- 14 -
<PAGE>
10(10) Deferred Compensation Contract dated May 21, 1992,
between Registrant and William F. Emswiler.
(Incorporated by reference to Exhibit 10(10) to
Annual Report on Form 10-K of the Corporation for the
fiscal year ended July 31, 1992 (Commission file
number 1-4389).)
10(11) Deferred Compensation Contract dated February 18,
1993, between Registrant and Andre F. Marion.
10(12) Deferred Compensation Contract dated January 21,
1993, between Registrant and Joseph E. Malandrakis.
(Incorporated by reference to Exhibit 10(11) to
Annual Report on Form 10-K of the Corporation for the
fiscal year ended June 30, 1993 (Commission file
number 1-4389).)
10(13) Employment Agreement dated November 21, 1991, between
Registrant and Gaynor N. Kelley. (Incorporated by
reference to Exhibit 10(1) to Quarterly Report on
Form 10-Q of the Corporation for the fiscal quarter
ended January 31, 1992 (Commission file number 1-
4389).)
10(14) Employment Agreement dated November 21, 1991, between
Registrant and Riccardo Pigliucci. (Incorporated by
reference to Exhibit 10(3) to Quarterly Report on
Form 10-Q of the Corporation for the fiscal quarter
ended January 31, 1992 (Commission file number 1-
4389).)
10(15) Employment Agreement dated May 21, 1992, between
Registrant and William F. Emswiler. (Incorporated by
reference to Exhibit 10(15) to Annual Report on Form
10-K of the Corporation for the fiscal year ended
July 31, 1992 (Commission file number 1-4389).)
10(16) Employment Agreement dated November 1, 1990 as
amended through December 3, 1992, between Registrant
and Andre F.Marion.
10(17) Employment Agreement dated November 21, 1991, between
Registrant and Joseph E. Malandrakis. (Incorporated
by reference to Exhibit 10(16) to Annual Report on
Form 10-K of the Corporation for the fiscal year
ended June 30, 1993 Commission file number 1-4389).)
10(18) Consulting Agreement dated March 17, 1994, between
Registrant and Robert H. Hayes.
10(19) The Excess Benefit Plan of The Perkin-Elmer
Corporation dated August 1, 1984 as amended through
June 30, 1993. (Incorporated by reference to Exhibit
10(18) to Annual Report on Form 10-K of the
Corporation for the fiscal year ended June 30, 1993
(Commission file number 1-4389).)
10(20) 1993 Director Stock Purchase and Deferred
Compensation Plan. (Incorporated by reference to
Exhibit 99 to the Corporation's Registration
Statement on Form S-8 (No. 33-50849).)
10(21) Consulting Agreement dated September 16, 1994,
between Registrant and Andre F. Marion.
11 Computation of Net Income (Loss) per Share for the
five years ended June 30, 1994.
13 Annual Report to Shareholders for 1994.
21 List of Subsidiaries.
23(1) Consent of Price Waterhouse LLP.
23(2) Consent of Deloitte & Touche LLP.
27 Financial Data Schedule.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-2
<SEQUENCE>2
<DESCRIPTION>EXHIBIT-2(4) METCO PURCHASE AGREEMENT
<TEXT>
CONFORMED COPY CONFIDENTIAL
PURCHASE AGREEMENT
between
THE PERKIN-ELMER CORPORATION
and
SULZER INC.
Dated as of April 18, 1994
TABLE OF CONTENTS
Page
ARTICLE I - PURCHASE AND SALE OF PURCHASED ASSETS;
ASSUMPTION OF CERTAIN OBLIGATIONS BY
THE PURCHASER
1.1 The Purchase . . . . . . . . . . . . . . . . . . . 2
1.2 Certain Definitions. . . . . . . . . . . . . . . . 3
ARTICLE II - THE CLOSING
2.1 Closing. . . . . . . . . . . . . . . . . . . . . . 18
2.2 Deliveries and Payments by the Purchaser . . . . . 19
2.3 Deliveries by the Seller . . . . . . . . . . . . . 19
2.4 Purchase Price Adjustment. . . . . . . . . . . . . 22
ARTICLE III - REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Sell-
er . . . . . . . . . . . . . . . . . . . . . . 26
3.2 Representations and Warranties of the Pur-
chaser . . . . . . . . . . . . . . . . . . . . 52
ARTICLE IV - COVENANTS
4.1 Operation of The Business . . . . . . . . . . . . 56
4.2 Preservation of Business. . . . . . . . . . . . . 58
4.3 Approvals and Consents; Cooperation . . . . . . . 58
4.4 Access. . . . . . . . . . . . . . . . . . . . . . 59
4.5 Taxes and Fees. . . . . . . . . . . . . . . . . . 60
4.6 Preservation of Records . . . . . . . . . . . . . 73
4.7 Employee Benefits and Related Matters . . . . . . 74
4.8 Confidentiality . . . . . . . . . . . . . . . . . 84
4.9 Use of Name . . . . . . . . . . . . . . . . . . . 84
4.10 Transition Services . . . . . . . . . . . . . . 85
4.11 Current Information . . . . . . . . . . . . . . . 85
4.12 Disclosure Supplements. . . . . . . . . . . . . . 86
4.13 Covenant Not to Compete . . . . . . . . . . . . . 87
4.14 Title Commitment and Survey . . . . . . . . . . . 89
4.15 Releases of Guarantees. . . . . . . . . . . . . . 90
4.16 Further Assurances. . . . . . . . . . . . . . . . 90
4.17 Environmental Work. . . . . . . . . . . . . . . . 91
ARTICLE V - CONDITIONS TO CLOSING
5.1 Conditions to Each Party's Obligation to
Close. . . . . . . . . . . . . . . . . . . . . 91
5.2 Conditions to Obligation of the Purchaser
to Close . . . . . . . . . . . . . . . . . . . 94
5.3 Conditions to Obligation of the Seller to
Close. . . . . . . . . . . . . . . . . . . . . 95
ARTICLE VI - INDEMNITY
6.1 Survival of Representations. . . . . . . . . . . 96
6.2 Indemnity by the Seller. . . . . . . . . . . . . 97
6.3 Indemnity by the Purchaser . . . . . . . . . . . 98
6.4 Environmental Indemnification. . . . . . . . . . 100
6.5 Procedures Relating to Environmental Indem-
nification . . . . . . . . . . . . . . . . . 101
6.6 Indemnification Procedure. . . . . . . . . . . . 104
6.7 Limitations on Indemnification . . . . . . . . . 106
6.8 Indemnity Not Exclusive Remedy . . . . . . . . . 107
ARTICLE VII - TERMINATION
7.1 Termination. . . . . . . . . . . . . . . . . . . 107
7.2 Effect of Termination. . . . . . . . . . . . . . 108
ARTICLE VIII - MISCELLANEOUS
8.1 Expenses. . . . . . . . . . . . . . . . . . . . 109
8.2 Public Communications . . . . . . . . . . . . . 109
38.3 Notices. . . . . . . . . . . . . . . . . . . . 109
8.4 Amendments; Waivers . . . . . . . . . . . . . . 110
8.5 Section Headings. . . . . . . . . . . . . . . . 111
8.6 Counterparts. . . . . . . . . . . . . . . . . . 111
8.7 Assignment. . . . . . . . . . . . . . . . . . . 111
8.8 Bulk Sales. . . . . . . . . . . . . . . . . . . 112
8.9 Governing Law . . . . . . . . . . . . . . . . . 112
8.10 Jurisdiction. . . . . . . . . . . . . . . . . . 112
8.11 Miscellaneous . . . . . . . . . . . . . . . . . 113
CONFORMED COPY
PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "Agreement"), dated as
of April 18, 1994, between The Perkin-Elmer Corporation,
a New York corporation (the "Seller"), and Sulzer Inc., a
Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, prior to the date hereof, the Seller,
through its Metco Division and through certain foreign
subsidiaries identified in a Schedule to this Agreement
(collectively, the "Division"), has engaged in the devel-
opment, design, manufacture and marketing of coating ser-
vices and servicing of, and training with respect to,
combustion, electric arc and plasma thermal spray equip-
ment, and related equipment and materials (the "Busi-
ness"); and
WHEREAS, the Seller desires to sell and trans-
fer to the Purchaser, and the Purchaser desires to pur-
chase and assume from the Seller, substantially all of
the assets and certain of the liabilities Related to the
Business (as hereinafter defined), all as more specifi-
cally provided herein.
NOW, THEREFORE, in consideration of the mutual
covenants and undertakings contained herein, and subject
to and on the terms and conditions herein set forth, the
parties hereto agree as follows:
ARTICLE I
Purchase and Sale of Purchased Assets;
Assumption of Certain Obligations by the Purchaser
1.1 The Purchase. Upon the terms and subject
to the conditions of this Agreement, at the Closing (as
hereinafter defined), the Seller shall sell, assign,
transfer, convey and deliver, or cause to be sold, as-
signed, transferred, conveyed and delivered, to the
Purchaser all of the Seller's right, title and interest
in and to the Purchased Assets (as hereinafter defined)
free and clear of all Liens (as hereinafter defined),
except the Owned Real Property (as hereinafter defined)
shall be conveyed subject to the Permitted Encumbrances
(as hereinafter defined) and the Leased Real Property (as
hereinafter defined) shall be conveyed subject to the
Permitted Leasehold Encumbrances (as hereinafter de-
fined), and the Purchaser shall pay to the Seller on
Purchaser's own behalf and as agent for and on behalf of
those affiliates purchasing shares of the Stock Subsid-
iaries (as hereinafter defined) and assets from the Asset
Subsidiaries (as hereinafter defined) the amount set
forth in Section 2.2 hereof (which Seller accepts on its
own behalf and as agent for and on behalf of those affil-
iates selling shares of the Stock Subsidiaries and on
behalf of the Asset Subsidiaries with respect to the
assets sold) and the Purchaser shall assume and discharge
or perform when due the Assumed Liabilities (as hereinaf-
ter defined) solely and exclusively for the benefit of
the Division and not any third party. Such transaction
is hereinafter referred to as the "Purchase."
1.2 Certain Definitions. As used herein, the
following terms have the meanings indicated:
"Accountants" means Price Waterhouse.
"Assumed Environmental Liabilities" means one
hundred percent (100%) of Environmental Liabilities other
than Excluded Environmental Liabilities.
"Assumed Liabilities" means the following and
only the following:
(i) all liabilities of the Division Related to
the Business that are reflected as liabilities on the
Final Statement but only to the extent and in the amount
of such inclusion;
(ii) all liabilities, commitments, duties or
other obligations contained in or arising out of each As-
sumed Contract (as hereinafter defined) that is fully and
effectively assigned to the Purchaser;
(iii) all liabilities, costs and expenses of
the Division which arise as a result of any claim, ac-
tion, suit or proceeding against the Division or the Pur-
chased Assets and which is based on a claim that a prod-
uct or products manufactured or sold by the Division
prior to the Closing Date was or were defectively or
improperly designed or manufactured ("Product Liabili-
ties");
(iv) all liabilities and obligations of the
Seller under the German pension plan at Perkin-Elmer
Metco GmbH (Germany) ("Metco GmbH");
(v) Assumed Environmental Liabilities; and
(vi) Unknown Liabilities (as hereinafter
defined).
Assumed Liabilities shall not mean or include any Exclud-
ed Liability.
"Closing Date Net Assets" means the difference
between the Purchased Assets and the Assumed Liabilities
that is reflected in the Final Statement (as hereinafter
defined).
"Closing Statement" means the audited statement
of net assets of the Business as of the Closing Date (as
hereinafter defined), which statement shall be prepared
by the Seller in accordance with generally accepted ac-
counting principles applied on a world wide basis consis-
tent with the Financial Statement; provided that the
Closing Statement shall in any event include as a liabil-
ity the pension obligation for Metco GmbH to be assumed
by the Purchaser pursuant to clause (iv) under the head-
ing "Assumed Liabilities" in this Section 1.2 in an
amount equal to the actuarially computed present value of
such obligation (computed on a basis consistent with past
valuations by the plan actuary). In addition, the Clos-
ing Statement shall be prepared using the Seller's corpo-
rate accounting policies and directives (a copy of cer-
tain of which is attached hereto as Schedule 1.2(A))
which shall be applied consistently on a worldwide basis
to the Purchased Assets and the Assumed Liabilities
reflected on such statement; provided, however, under no
circumstances shall the inventory obsolescence require-
ment for inventory included in the Purchased Assets be
determined using the Metco Obsolescence Procedure but it
shall instead be determined in accordance with Perkin-
Elmer Finance Manual Procedure 2-37 Inventory Obsoles-
cence. The Closing Statement shall be accompanied by an
unqualified opinion thereon of the Accountants.
"Employees" means persons employed by the
Division in connection with the Business.
"Environment" means exterior air, water vapor,
surface water, ground water, drinking water supply or
land, including land surface or subsurface, and includes
all fish, wildlife, biota and all other natural resourc-
es.
"Environmental Claim" means any claim, action,
cause of action, investigation or written notice by any
person or entity alleging potential liability (including,
without limitation, potential liability for investigatory
costs, cleanup costs, governmental response costs, natu-
ral resource damages, property damages, personal inju-
ries, or penalties) arising out of, based on or resulting
from (a) the presence, or release into the Environment,
of any Material of Environmental Concern on or prior to
the Closing Date on, in or under the Real Property, or
(b) the violation, or alleged violation, of any Environ-
mental Law arising out of the condition of or operations
conducted at the Real Property on or prior to the Closing
Date.
"Environmental Condition" means any state of
facts that exist at any time on or before the Closing
Date on, in or under the Real Property that relate to or
affect the compliance of the Real Property with all Envi-
ronmental Laws.
"Environmental Law(s)" means those United
States federal, state, local and foreign environmental
statutes and ordinances, as such laws have been amended
or supplemented as of the Closing Date, and lawfully pro-
mulgated rules and regulations pursuant thereto as of the
Closing Date relating to the protection of the Environ-
ment, including, without limitation, the Resource Conser-
vation and Recovery Act of 1976, as amended, the Clean
Air Act, as amended, the Federal Water Pollution Control
Act, as amended, the Comprehensive Environmental Re-
sponse, Compensation and Liability Act of 1980, as amend-
ed, the Toxic Substances Control Act, as amended, and
state statutes similar to or based upon the foregoing,
including, without limitation, Articles 17 and 27 of the
New York State Environmental Conservation Law and other
applicable laws and regulations relating to emissions,
discharges, releases or threatened releases of Materials
of Environmental Concern, or otherwise relating to the
manufacture, processing, use, treatment, storage, dis-
posal, transport, or handling of Materials of Environmen-
tal Concern.
"Environmental Liabilities" means any liabili-
ties and obligations of every kind, character and de-
scription based upon, arising out of or otherwise in
respect of (a) the violation or alleged violation of any
Environmental Law, as such laws may be amended or sup-
plemented after the Closing Date, including but not
limited to, any Environmental Claim or Environmental
Condition, or (b) the presence or release into the Envi-
ronment of any Material of Environmental Concern on, in
or under the Real Property.
"Estimated Purchase Price" means
[material at this point has been
omitted pursuant to a request for confidential treatment under
the Freedom of Information Act and has been filed separately with
the Securities and Exchange Commission]
"Excluded Assets" means all assets listed on
Schedule 1.2(B) hereto.
"Excluded Environmental Liabilities" means
[material at this point has been
omitted pursuant to a request for confidential treatment under
the Freedom of Information Act and has been filed separately with
the Securities and Exchange Commission]
of Environmental Liabilities first commenced
or asserted on or prior to the fifteenth anniversary of
the Closing Date and that are based on, arising out of or
otherwise in respect of the violation or alleged viola-
tion of any Environmental Law existing on or prior to the
Closing Date, an Environmental Claim, Environmental
Condition, or the presence of any Material of Environmen-
tal Concern on, in or under all or any portion of the
Real Property, as of the Closing Date.
"Excluded Liabilities" means the following and
only the following:
(i) any and all liabilities and obligations,
direct or indirect, fixed or contingent, for Taxes (as
hereinafter defined) of the Seller, or any of the Asset
Subsidiaries or Stock Subsidiaries, whether or not as-
sessed prior to, on or after the Closing Date, attrib-
utable to the Pre-Closing Tax Period (as hereinafter
defined);
(ii) Excluded Environmental Liabilities;
(iii) any liability, duty or other obligation
contained in or arising out of any agreement, contract,
license agreement, lease or sublease Related to the Busi-
ness that is not an Assumed Contract which is fully and
effectively assigned to Purchaser;
(iv) any liability of the Seller for any
severance or similar payment for any Transferred Employee
(as hereinafter defined) to whom Purchaser makes an offer
of employment in conformity with the terms of Section
4.7(a); provided, however, all liabilities arising out of
or incurred in connection with those certain severance
agreements between the Sellers and Messrs. Thomas R.
Klein, Burton Kushner, Andrew B. Mazzone, Francis J.
McKendry, Vincent Meringolo and Robert P. Zounek are Ex-
cluded Liabilities;
(v) (A) any Product Liability related to an
occurrence (as hereinafter defined) prior to the Closing
of which the Seller had knowledge on the Closing Date, to
the extent of 100% of such Product Liability (a "Known
Product Liability") and (B) any Product Liability related
to an occurrence prior to the Closing of which the Seller
had no knowledge on the Closing Date, to the extent of
100% of the portion of such Product Liability covered by
the Seller's insurance and 50% of the portion of such
Product Liability not covered by the Seller's insurance.
For purposes of this definition, "occurrence" means an
accident, including continuous or repeated exposure to
substantially the same general harmful condition;
(vi) any liabilities of the Division resulting
from (A) any litigation, arbitration or other similar
proceeding, including labor grievances and administrative
agency actions with respect to employees or employment
practices of the Divison, or (B) any workers' compensa-
tion claims and automobile liability claims, in either
case pending or threatened in writing prior to the Clos-
ing Date;
(vii) any liabilities or obligations related
to the Excluded Assets;
(viii) subject to the provisions of Section
4.7 hereof, any liabilities or obligations of the Seller
under employee health, welfare and severance benefit
plans relating to the Employees, including but not limit-
ed to (A) all liabilities for such health, welfare and
severance benefits owed with respect to former salaried
and non-salaried Employees who are retired as of the
Closing, and (B) federal and state income tax liability,
arising by reason of the Seller's failure, through any
act or omission before, on or after the Closing Date, to
comply with the requirements of Section 4980 B of the
Internal Revenue Code of 1986, as amended (the "Code") or
Sections 601-607 of the Employee Retirement Income Secu-
rity Act of 1974, as amended ("ERISA") ("COBRA"), with
respect to any "qualified beneficiary" (as defined in
COBRA), whether the relevant "qualifying event" (as
defined in COBRA) occurs before, on or after the Closing
Date; provided, however, those liabilities and obliga-
tions of the Seller to those Employees who are actively
employed in the Business at Metco GmbH shall be Assumed
Liabilities;
(ix) all obligations of the Seller or any
Subsidiary to any banks or to Seller and its affiliates
with respect to money borrowed; and
(x) all liabilities under the lease agreement
with respect to the Seller's Farnborough (U.K.) facility.
"Final Statement" means the Closing Statement,
after giving effect to the provisions of Section 2.4(b)
hereof.
"Financial Statement" means the audited State-
ment of Net Assets of the Division at June 30, 1993
attached as Schedule 1.2(C) hereto.
"Liens" means all pledges, security interests,
liens, charges, encumbrances, equities, and options of
whatsoever nature, and any claims of any of the forego-
ing, except for statutory liens for taxes not yet due and
payable.
"Materials of Environmental Concern" means any
"hazardous waste," "hazardous material," "hazardous sub-
stance," "extremely hazardous waste," or "restricted
hazardous waste," "subject waste," "pollutant," "contami-
nant," "toxic waste" or "toxic substance" under any
provision of Environmental Law, including, but not limit-
ed to, asbestos, petroleum and polychlorinated biphenyls.
"Material Subsidiaries" means the Subsidiaries
listed on Schedule 1.2(G) hereto which are specifically
identified as "Material Subsidiaries".
"Pre-Closing Tax Period" means any taxable
period ending on or before the Closing Date.
"Purchased Assets" means all assets, properties
or rights (of every kind, nature and description, real,
personal or mixed, tangible or intangible and wherever
situated, and including the rights of the Division to the
use of properties and assets owned by Seller and the
Subsidiaries), goodwill and business as a going concern
that are Related to the Business (as hereinafter de-
fined), other than the Excluded Assets, including, with-
out limitation, the following:
(a) all real property Related to the
Business, whether owned (the "Owned Real Property") or
leased (the "Leased Real Property"; and, together with
the Owned Real Property, the "Real Property"), including
any buildings, structures and improvements thereon or
appurtenances thereto listed on Schedule 1.2(E) hereto;
(b) all accounts receivable arising out
of the sale or other disposition of goods or services
Related to the Business;
(c) all raw materials, supplies and
manufactured goods constituting inventories, together
with such additions thereto and deletions therefrom as
shall have occurred from the date hereof to the Closing
in the ordinary course of business, Related to the Busi-
ness;
(d) all machinery, tools, equipment,
automobiles and trucks, furniture, fixtures and other
personal property Related to the Business, whether owned
(the "Owned Equipment") or leased (the "Leased Equip-
ment"; and, together with the Owned Equipment, the
"Equipment");
(e) all intellectual property rights
Related to the Business, including all rights in or to
(i) patents, trademarks, service marks, and all appli-
cations therefor and registrations and recordings there-
of, (ii) copyrights, (iii) product designations, trade
names, permits, approvals, ideas, plans, specifications,
formulae, processing procedures, quality standards, data,
trade secrets, inventions, investigations, designs, pro-
cesses, production methods and techniques, know-how,
books, records, manuals and other information, including,
without limitation, all such rights listed on Schedule
1.2(F) hereto (the "Intellectual Property");
(f) all of the Seller's rights in and to
the name "Metco" and any variation thereof;
(g) (i) all assets, properties or rights
(of any kind, nature and description, real, personal or
mixed, tangible or intangible and wherever situated),
goodwill and business as a going concern, including,
without limitation, the specific assets listed in this
definition of Purchased Assets, of the divisions and
branches Related to the Business and held by the subsid-
iaries of Seller as described and listed on Schedule
1.2(G)(i) hereof (the "Asset Subsidiaries"); and
(ii) all outstanding capital stock of
those subsidiaries of Seller Related to the Business and
listed on Schedule 1.2(G)(ii) hereto (the "Stock Subsid-
iaries") and all interests, beneficial or otherwise, in
the joint ventures of Seller or any affiliate of Seller
Related to the Business and listed on Schedule
1.2(G)(iii) hereto (the "Joint Ventures"); provided,
however, that the Stock Subsidiaries shall not include
the Asset Subsidiaries listed on Schedule 1.2(G)(i) here-
to. (The Asset Subsidiaries, the Stock Subsidiaries and
the Joint Ventures are herein referred to as the "Subsid-
iaries," except for purposes of Sections 3.1 and 4.5,
wherein the term "Subsidiaries" shall not include Joint
Ventures);
(h) all right, title and interest of the
Seller in and to all contracts and license agreements
listed or referred to on Schedule 1.2(H) hereto (the "As-
sumed Contracts");
(i) all permits, licenses, franchises,
consents, authorizations of any foreign or domestic
federal, state or local governmental body Related to the
Business, except to the extent that the transfer thereof
to the Purchaser would violate applicable laws or regula-
tions;
(j) all documents, files, records and
other materials Related to the Business; and
(k) without limiting the generality of
the foregoing, all assets, properties and rights reflect-
ed on the Final Statement.
"Purchase Price" means the amount of the Clos-
ing Date Net Assets plus [material at this point has been
omitted pursuant to a request for confidential treatment under
the Freedom of Information Act and has been filed separately with
the Securities and Exchange Commission].
"Related to the Business" means primarily
related to, or used primarily in connection with, or
primarily arising out of or in connection with, the
operations of the Business prior to the Closing.
"Remedial Action" means all actions required
under Environmental Law to clean up, remove, treat or in
any other way address any Material of Environmental Con-
cern that is on, in or under the Real Property on or
prior to the Closing Date.
"Straddle Period" means any taxable period of
the Seller or any Subsidiary that begins before the Clos-
ing Date and ends after the Closing Date.
"Taxes" means any and all taxes, charges, fees,
levies or other like assessments (including penalties,
interest or additions to tax imposed in connection there-
with or with respect thereto, if applicable), including
but not limited to income, transfer, gains, gross re-
ceipts, excise, inventory, property (real, personal or
tangible), sales, use, license, withholding, payroll,
employment, social security, unemployment, occupation,
premium, windfall profits, capital stock, franchise, ser-
vice, ad valorem or value added taxes or customs duties
imposed by the United States or any state, local or
foreign government or subdivision or agency thereof,
whether computed on a unitary, combined or any other
basis.
"Tax Returns" means all reports, returns,
information, statements, and other documentation (includ-
ing any additional or supporting material) filed or
maintained, or required to be filed or maintained, in
connection with the calculation, determination, assess-
ment or collection of any Taxes.
"Unknown Liabilities" means all liabilities (as
defined in Section 3.1(s)) Related to the Business which
are not specifically referred to in clauses (i), (ii) and
(iv) of the definition of "Assumed Liabilities". No Ex-
cluded Liability, Product Liability or Environmental Lia-
bility shall be an Unknown Liability, and no Unknown
Liability shall be either a Product Liability or an Envi-
ronmental Liability.
ARTICLE II
The Closing
2.1 Closing. The closing of the Purchase (the
"Closing") shall take place at the offices of Skadden,
Arps, Slate, Meagher & Flom, 919 Third Avenue, New York,
NY at 10:00 a.m., New York time, on the later of (i) May
31, 1994, and (ii) the month end next following the date
on which the last to be satisfied or waived of the condi-
tions set forth in Article V hereof shall be satisfied or
waived in accordance with this Agreement; or at such
other time, day or place as the parties hereto shall
mutually agree. The day on which the Closing takes place
is herein referred to as the "Closing Date."
2.2 Deliveries and Payments by the Purchaser.
At the Closing, the Purchaser shall deliver the following:
(a) The Estimated Purchase Price, payable to
the Seller in immediately available funds by wire transfer
to a United States bank account to be designated by Seller
in writing not less than three business days prior to the
Closing Date; and
(b) Such instruments of assumption and other
instruments or documents as may be reasonably necessary to
carry out the Purchase and to comply with the terms here-
of.
2.3 Deliveries by the Seller. At the Closing,
the Seller shall deliver the following:
(i) the Purchased Assets;
(ii) with respect to the Purchased Assets
other than the Real Property, such bills of sale and
other instruments of conveyance or assignment or docu-
ments in form and substance reasonably satisfactory to
the Purchaser and its counsel as may be necessary to vest
in the Purchaser all of the right, title and interest of
the Seller in and to the Purchased Assets, including,
without limitation, such bills of sale and other instru-
ments or documents as shall be necessary to vest in the
Purchaser good title, free and clear of all Liens;
(iii) certificates or other statements from
the Secretary of State of the State of New York which
indicate that as of the Closing Date there are no filings
against Seller under the Uniform Commercial Code of New
York which would be a Lien on the Equipment included in
the Purchased Assets (other than such filings, if any, as
are being released at the time of the Closing) unless
such filing secures an obligation that is an Assumed
Liability;
(iv) written notices executed by the Seller
changing the address for payment on accounts and services
and written notices of the Purchase jointly signed by
Seller and the Purchaser, as the Purchaser shall reason-
ably request;
(v) with respect to the Owned Real Property,
bargain and sale deeds, in the customary form in the
jurisdictions in which the Owned Real Property is locat-
ed, with covenants against grantor's acts, in recordable
form, subject only to the Permitted Encumbrances, togeth-
er with any third party consents listed on Schedule
3.1(j) to be obtained from any such third party related
to the Owned Real Property; and with respect to the
Leased Real Property, assignments of lease, in the cus-
tomary form in the jurisdictions in which the Leased Real
Property is located, in recordable form, subject only to
the Permitted Leasehold Encumbrances, together with any
third party consents listed on 3.1(j), to be obtained
from any such third party related to the Leased Real
Property;
(vi) a true, correct and complete affidavit of
non-foreign status of the Seller in a form which complies
with the provisions of Section 1445 of the Code, and the
regulations thereunder (the "FIRPTA Affidavit") which
attests to Seller's non-foreign status;
(vii) estoppel certificates, in the form
reasonably satisfactory to the Purchaser, executed by
each Landlord which is a party to any leases on the
Leased Real Property; provided, however (i) as to the
Leased Real Property in the United States, in the event
that the Seller, after using its reasonable efforts, is
unable to obtain such estoppel certificates, or (ii) as
to the other Leased Real Property in the event that the
Seller is unable to obtain such estoppel certificates,
then in lieu thereof, the Seller shall execute and deliv-
er a reasonably acceptable tenant's estoppel certificate
for such Leased Real Property; and
(viii) all other documents, instruments and
writings required to be delivered by the Seller pursuant
to this Agreement or otherwise reasonably required in
connection herewith.
2.4 Purchase Price Adjustment. (a) As soon
as practicable, but not more than ninety (90) calendar
days after the Closing Date, the Seller shall deliver to
the Purchaser the Closing Statement. During the prepara-
tion and audit of the Closing Statement by the Seller and
the Accountants and during the period of any dispute
within the contemplation of Section 2.4(b) hereof, the
Purchaser shall provide the Seller, the Accountants and
the Seller's authorized representatives reasonable access
to the books, records, facilities and employees of the
Business and shall cause the Business to cooperate with
the Seller, the Accountants and the Seller's authorized
representatives, in each case to the extent reasonably
required in order to prepare the Closing Statement and to
investigate the basis for any such dispute. The Purchas-
er and its representatives, including Deloitte & Touche
(the "Purchaser's Accountants"), shall have the right to
communicate with and to review the work papers, sched-
ules, memoranda and other documents prepared or reviewed
by the Seller and/or the Accountants in connection with
their preparation and/or audit of the Closing Statement,
and the Purchaser and its representatives shall have
access to the Accountants and such employees of the
Seller and to all relevant books and records, to the
extent reasonably required by them in order to complete
their review of the Closing Statement and to investigate
the basis for any potential dispute contemplated by
Section 2.4(b). Subject to Section 2.4(b), the Closing
Statement shall be conclusive and binding as the "Final
Statement."
(b) The Purchaser may dispute any amounts re-
flected on the Closing Statement, based solely on wheth-
er such disputed amounts were arrived at in accordance
with the provisions with respect to the preparation of
the Closing Statement set forth in Section 1.2 under the
heading "Closing Statement"; provided that the Purchaser
shall notify the Seller in writing of each disputed
item, and specify the amount thereof in dispute and the
basis for such dispute, within forty-five (45) calendar
days of the Purchaser's receipt of the Closing State-
ment. In the event of such a dispute, the Purchaser,
the Seller and their respective independent certified
public accountants shall attempt to reconcile their
differences and any resolution by the Purchaser and the
Seller as to any disputed amounts shall be in writing
and signed by the Purchaser and the Seller and shall
thereafter be final, binding and conclusive. If the
Purchaser and the Seller are unable to reach a resolu-
tion with such effect within fifteen (15) business days
of the Seller's receipt of the Purchaser's written no-
tice of dispute, then the Purchaser and the Seller shall
submit the items remaining in dispute for resolution to
KPMG Peat Marwick, or another independent "big six" ac-
counting firm (other than the Accountants or the
Purchaser's Accountants) mutually appointed by the Sell-
er and the Purchaser (such accounting firm being herein
referred to as the "Independent Accounting Firm"), which
shall, within thirty (30) calendar days after submis-
sion, determine such disputed items in accordance with
the provisions with respect to the preparation of the
Closing Statement set forth in Section 1.2 under the
heading "Closing Statement," and report to the parties
which report shall be final, binding and conclusive.
The fees and disbursements of the Independent Accounting
Firm shall be allocated equally between the Purchaser
and the Seller.
(c) If the Purchase Price exceeds the Esti-
mated Purchase Price, then the Purchaser shall pay to
the Seller an amount equal to such excess, together with
simple interest thereon from the Closing Date to the
date of payment at the rate of 6% per annum, calculated
on the basis of a 365-day year. If the Estimated Pur-
chase Price exceeds the Purchase Price, then the Seller
shall pay to the Purchaser an amount equal to such ex-
cess, together with simple interest thereon from the
Closing Date to the date of payment at the rate of 6%
per annum, calculated on the basis of a 365-day year.
(d) Any amount payable pursuant to Section
2.4(c) hereof shall be paid by wire transfer of immedi-
ately available funds to a bank account designated by the
Purchaser or the Seller, as the case may be, as soon as
practicable following the determination of the Final
Statement, but in no event more than three (3) days
thereafter.
ARTICLE III
Representations and Warranties
3.1 Representations and Warranties of the
Seller. The Seller hereby represents and warrants to the
Purchaser as follows:
(a) Organization of the Seller and Material
Subsidiaries. The Seller and each of the Material Sub-
sidiaries are corporations duly organized, validly exist-
ing and in good standing under the laws of their respec-
tive jurisdictions of incorporation or organization and
each such entity has all necessary corporate power to
own, lease and operate its respective Purchased Assets
and to carry on the Business conducted by it as now being
conducted. The Seller and each of the Material Subsid-
iaries are duly qualified and in good standing to do
business in all jurisdictions in which the Purchased
Assets owned or used by it or the Business conducted by
it makes such qualification necessary, except for those
jurisdictions where the failure to be so duly qualified
will not have a material adverse effect on the Purchased
Assets, the Assumed Liabilities or the business, finan-
cial condition or results of operations of the Business,
taken as a whole (a "Material Adverse Effect").
(b) Authorization and Noncontravention. The
execution, delivery and performance of this Agreement has
been duly authorized by the Seller and no other corporate
proceedings on the part of the Seller are necessary to
authorize this Agreement or the transactions contemplated
hereby. The Seller has full corporate power and authori-
ty to enter into this Agreement and to perform its obli-
gations hereunder. This Agreement has been duly and
validly executed and delivered by the Seller and consti-
tutes a valid and legally binding obligation of the
Seller enforceable against the Seller in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles. The execution
and the delivery by the Seller of this Agreement and the
consummation by the Seller of the Purchase will not (i)
violate any term or provision of the Restated Certificate
of Incorporation or By-laws of the Seller; (ii) subject
to obtaining any required authorizations, approvals,
consents or waivers set forth in Schedule 3.1(j) hereto,
conflict with or result in a breach of or constitute a
default under or result in the termination of, or entitle
any party to accelerate (whether after the filing or
notice or lapse of time or both), any agreement to which
the Seller or any Material Subsidiary is a party or by
which it is bound or to which any of its assets are
subject, or result in the creation of any lien or encum-
brance upon any of said assets, other than conflicts,
breaches, defaults, terminations, accelerations, liens or
encumbrances which, individually or in the aggregate,
would not have a Material Adverse Effect or materially
impair the ability of the parties hereto to consummate
the Purchase; or (iii) subject to obtaining the authori-
zations, approvals, consents or waivers set forth in
Schedule 3.1(j) hereto and to the expiration of the
applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), the Omnibus Trade and Competitiveness Act of 1988
(the "Exon-Florio Amendment") and the Federal Republic of
Germany's Act Against Restraints of Competition (the "GWB
Act"), violate or result in a breach of or constitute a
default under any judgment, order, decree, law, rule,
regulation or other restriction of any court, government
or governmental agency to which the Seller, any Subsid-
iary or any of the Purchased Assets are subject, other
than violations, breaches or defaults which individually
or in the aggregate would not have a Material Adverse
Effect or materially impair the ability of the parties
hereto to consummate the Purchase.
(c) The Purchased Assets. Except as set forth
Schedule 3.1(c) hereto, the Purchased Assets constitute
in all material respects the rights, properties and
assets (real, personal or mixed, tangible or intangible)
used in the conduct of the Business as currently con-
ducted by the Seller and the Subsidiaries. The Seller
has good and valid title to the owned Purchased Assets
(other than the Owned Real Property, which is the subject
of Section 3.1(d) hereof, and the Intellectual Property,
which is the subject of Section 3.1(k) hereof), free and
clear of all Liens except for Liens set forth on Schedule
3.1(c) hereto, which shall be released on or prior to the
Closing.
(d) Real Property. Seller and each Subsid-
iary has fee simple and insurable title, or the equiva-
lent of fee simple and insurable title under applicable
law in the case of the Owned Real Property located out-
side the United States, to the Owned Real Property iden-
tified as belonging to it on Schedule 1.2(E), free and
clear of all liens, covenants, conditions, restrictions,
rights of way, easements, encroachments, charges and
encumbrances or other adverse claims or interests of any
nature other than: (i) liens for current taxes not yet
due and payable; (ii) liens for installments for special
or other assessments not yet due and payable; (iii) the
matters set forth on Schedule 3.1(d) hereto; (iv) laws,
ordinances and governmental regulations (including, but
not limited to, building and zoning ordinances) restrict-
ing and regulating but not prohibiting the occupancy, use
or enjoyment of the Owned Real Property for the business
presently conducted thereon, or regulating the character,
dimensions or location of any improvement now or hereaf-
ter erected on the Owned Real Property provided the same
are not materially violated by any existing improvements
or the use thereof and provided the same do not prohibit
a transfer of the Owned Real Property, (v) such other
encroachments, easements, overlaps, gaps, boundary line
disputes or claims and any other matters which would be
disclosed by an accurate survey or inspection which,
individually or in the aggregate, do not materially
interfere with the use or operation of the particular
Owned Real Property affected as presently used and oper-
ated, and (vi) such other imperfections of title, encum-
brances, covenants, conditions and restrictions which
individually or in the aggregate, do not materially
interfere with the use and operation of the particular
Owned Real Property affected as presently used and oper-
ated. Collectively, items (i), (ii), (iii), (iv), (v)
and (vi) above are herein referred to as the "Permitted
Encumbrances." The Seller and each Subsidiary, with
respect to each Leased Real Property identified on Sched-
ule 3.1(l) as belonging to it, has a good and valid
leasehold interest free and clear of all liens, charges
and encumbrances or other adverse claims or interests of
any nature other than: (i) claims for rent and additional
rent not yet due and payable, and all other obligations
of the tenant pursuant to each such lease, provided that
tenant is not in default beyond applicable notice and
grace provisions under such lease, (ii) matters set forth
in Schedule 3.1(d) hereto, (iii) matters affecting its
landlord's title, and (iv) laws, ordinances and govern-
mental regulations (including, but not limited to, build-
ing and zoning ordinances) restricting and regulating but
not prohibiting the occupancy, use or enjoyment of the
Leased Real Property for the use permitted by each such
lease and the business presently conducted in the premis-
es demised under each such lease, or regulating the
character, dimensions or location of the demised premises
or the business presently conducted on the demised pre-
mises provided the same are not materially violated.
Collectively, items (i), (ii), (iii) and (iv) above are
herein referred to as the "Permitted Leasehold Encum-
brances". Except as set forth on Schedule 3.1(d), Seller
(A) has not pre-paid or anticipated rent or additional
rent under any such lease, except as required by the
terms of any Lease, (B) knows of no requirement that any
third party (including the landlord under each such
lease) consent to the assignment or transfer of each such
lease or consent to the transfer of the stock of any
Subsidiary which is a tenant under any such lease and (C)
knows of no guarantee of the obligations of a tenant
under any such lease by Seller or any Subsidiary except
as shown on Schedule 4.15.
(e) Condemnation. There is no pending or, to
knowledge of the Seller, threatened condemnation of the
Owned Real Property or, to the knowledge of Seller,
pending or threatened condemnation of the Leased Real
Property or any part thereof or, to the knowledge of
Seller, any general or special assessment relating to any
condemnation referred to in this paragraph.
(f) Financial Statement. The Seller has
previously furnished to the Purchaser (i) the audited
statements of net sales and direct costs and expenses and
sources and uses of cash of the Division for the fiscal
year ended June 30, 1993 (the "Special Purpose State-
ments"), and (ii) the Financial Statement. Except as set
forth in the notes to the Special Purpose Statements, the
Financial Statement and Schedule 3.1(f) hereto, the
Financial Statement presents fairly the June 30 Net
Assets at June 30, 1993, and the Special Purpose State-
ments present fairly the related net sales and direct
costs and expenses and sources and uses of cash for the
fiscal year then ended, in each case in accordance with
generally accepted accounting principles consistently
applied on a worldwide basis in accordance with the
Seller's corporate accounting policies and directives.
(g) Absence of Certain Changes. Except as set
forth in Schedule 3.1(g) hereto, since June 30, 1993
there has not been with respect to the Business (i) any
material adverse change in the business, financial condi-
tion or results of operations of the Business, taken as a
whole; (ii) other than in the ordinary course of busi-
ness, any expenditures or commitments, including capital
expenditures or commitments for capital expenditures,
made by the Seller for additions to property, plant,
equipment or intangible capital assets which exceed
$50,000 individually or $250,000 in the aggregate, other
than as described on Schedule 4.1; (iii) any failure to
maintain in full force and effect substantially the same
level and types of insurance coverage as in effect on
June 30, 1993; (iv) any destruction, damage to, or loss
of any Purchased Asset (whether or not covered by insur-
ance) which would have a Material Adverse Effect; (v) any
change in accounting methods, principles or practices;
(vi) any sale, assignment or transfer of any material
tangible or intangible Purchased Assets, including any
material Intellectual Property, other than licenses of
Purchased Assets entered into in the ordinary course of
business; or (vii) any agreement or understanding to take
any of the actions described in this Section.
(h) Litigation. Except as set forth in Sched-
ule 3.1(h) or 3.1(k) hereto, there are no written claims,
actions, suits, or proceedings, nor has the Seller re-
ceived any notice of governmental investigations (i) in-
volving the Business pending or, to the knowledge of the
Seller, threatened or (ii) relating to the products of
the Business or any products alleged to have been manu-
factured or sold by the Seller or any Subsidiary in con-
nection with the Business, based on allegations that such
products are defective or improperly designed or manufac-
tured pending or, to the knowledge of the Seller, threat-
ened. Except as set forth in Schedule 3.1(h) or 3.1(k)
hereto, neither the Seller nor any Subsidiary is subject
to any judgment, order or decree in any lawsuit or pro-
ceeding Related to the Business.
(i) Compliance with Law. Except as set forth
in Schedule 3.1(i) hereto and except with respect to
Environmental Laws (compliance with which is the subject
of Section 3.1(p) hereof), to the knowledge of the Seller
(i) the Business is being conducted in compliance in all
material respects with all applicable laws, rules and
regulations and orders and (ii) the Seller has not re-
ceived any written complaint or notice from any govern-
mental authority alleging that the Seller has violated
any laws, rules, regulations or orders.
(j) Approvals and Consents. Except for com-
pliance with the HSR Act, the Exon-Florio Amendment and
the GWB Act and other than as set forth in Schedule
3.1(j) hereto, (1) there are no authorizations, approv-
als, consents or waivers required to be obtained from or
notices or filings required to be given to or made with,
any government or governmental agency by the Seller in
connection with the Purchase, and (2) there are no autho-
rizations, approvals, consents or waivers required to be
obtained by the Seller or any Subsidiary from any third
party or notices required to be given by the Seller or
any Subsidiary to any third party, in either case pursu-
ant to any Material Agreement in connection with the Pur-
chase.
(k) Intellectual Property. (i) Schedule
1.2(F) sets forth a complete and accurate list of all
trademarks, patents and material copyrights registered or
applied for, Related to the Business, owned by the Seller
or any Subsidiary. Except as set forth in Schedule
3.1(k) hereto, either the Seller or such Subsidiary is
the sole and exclusive beneficial owner of the Intel-
lectual Property, free and clear of all Liens. Except as
set forth in Schedule 3.1(k) hereto, to the knowledge of
the Seller (x) there are no actions or proceedings pend-
ing or threatened which challenge the Seller's right to
use any of its material Intellectual Property in connec-
tion with the Business and (y) the Seller's use of Intel-
lectual Property in connection with the Business does not
infringe upon or otherwise violate the rights of others.
(ii) All registered trademarks, patents and
material copyrights are validly registered, and, except
as set forth in Schedule 3.1(k) the Seller or a Subsid-
iary is the current record owner of all such registra-
tions or applications therefor. The Seller is not a
party to any settlement agreement, consent or waiver
which restricts the use of such Intellectual Property in
connection with the Business. To the knowledge of the
Seller, no other person is infringing upon the Seller's
rights in the Intellectual Property, except as set forth
in Schedule 3.1(k).
(iii) Except as set forth on Schedule 3.1(k),
the Seller does not pay any royalty to anyone relating to
the Intellectual Property. There is no restriction or
limitation of Seller's rights to transfer the Intellectu-
al Property as herein contemplated.
(iv) Schedule 3.1(k) contains a complete and
accurate list of all contracts, licenses, agreements or
understandings, written or oral, Related to the Business,
pursuant to which (a) a third party is licensing its in-
tellectual property to the Seller, and (b) the Seller is
licensing any Intellectual Property to a third party (the
"Licenses"). The Seller is in compliance with all mate-
rial terms of the Licenses and to the knowledge of the
Seller each of the Licenses is in full force and effect.
All royalties due and payable under the Licenses have
been paid.
(l) Material Agreements. Listed on Schedule
3.1(l) is (i) each agreement, contract, license and per-
sonal property lease and sublease, written or oral,
Related to the Business involving an obligation of the
Seller or a Subsidiary or of the other party or parties
thereto of more than $100,000 in any year (other than
contracts cancelable upon up to sixty (60) days notice,
without penalty), (ii) each lease of real property Relat-
ed to the Business (collectively, the "Leases"), (iii)
each agreement which by its terms is over one year in
length of obligation of the Seller or a Subsidiary Relat-
ed to the Business (other than contracts cancelable upon
up to sixty (60) days notice, without penalty), (iv) each
agreement or contract which by its terms will result in a
loss to the Business in excess of $50,000, and (v) all
agreements or contracts which by their terms will result
in an aggregate loss to the Business in excess of
$500,000 (hereinafter collectively called the "Material
Agreements"). Except as set forth in Schedule 3.1(l)
hereto, to the knowledge of the Seller, none of the
Seller, any Subsidiary or the other party or parties to
any Material Agreement is in default with respect to any
material term or condition thereof and no event has oc-
curred which through the passage of time or the giving of
notice, or both, would constitute such a default. Nei-
ther the Seller nor any Subsidiary has received any
written notice of any default by the Seller or any Sub-
sidiary under any of the Material Agreements. The list
of Material Agreements on Schedule 3.1(e) hereto includes
all amendments and modifications to such Material Agree-
ments. Copies of all Material Agreements and Assumed
Contracts, including all supplements and amendments
thereto, have been or will be made available to the
Purchaser prior to the Closing.
(m) Employee Benefit Plans. (i) Schedule
3.1(m)(i) hereto lists all "employee benefit plans,"
within the meaning of Section 3(3) of ERISA, covering
persons employed or formerly employed in the United
States by the Division in connection with the Business
(the "U.S. Employees"). True and complete copies of all
plan documents and summary plan descriptions pertaining
to all such plans (the "ERISA Plans") have been, or as
soon as practicable after the date of this Agreement will
be, made available to the Purchaser.
(ii) All ERISA Plans are in substantial com-
pliance with ERISA. To the knowledge of the Seller, each
ERISA Plan intended to be qualified under Section 401(a)
of the Code has received a favorable determination letter
from the Internal Revenue Service (except with respect to
amendments to such ERISA Plans adopted after August 1,
1986), and the Seller is not aware of any circumstances
likely to result in revocation of any such favorable de-
termination letter. Except as set forth on Schedule
3.1(m)(ii) hereto, there is no material pending or, to
the knowledge of the Seller, threatened action, suit or
claim with respect to the ERISA Plans (other than routine
claims for benefits in the ordinary course). None of the
ERISA Plans is a multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA.
(iii) Assuming the Purchaser makes the offers
of employment provided for in Section 4.7(a) hereof, the
consummation of the transactions contemplated by this
Agreement will not, in and of themselves, (a) entitle any
current or former employee of Seller or any Transferred
Employee (as defined in Section 4.7 hereof) to any sever-
ance pay, unemployment compensation or any other payment,
(b) accelerate the time of payment or vesting, or in-
crease the amount of compensation due to any such em-
ployees, or (c) result in any employment-related expenses
or liabilities, in every such case the full cost of which
will not be paid by Seller.
(iv) Schedule 3.1(m)(iv) sets forth a list of
all plans, agreements or arrangements pursuant to which
any Employee receives any employee benefits from Seller
or any Subsidiary, including without limitation, bonus,
deferred compensation, pension, profit-sharing, severance
and health insurance plans, agreements o