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EXHIBIT 10.3(a)
EMPLOYMENT AGREEMENT
AGREEMENT made as of 7 June 2000 between PALL EUROPE LIMITED, Europa House,
Havant Street, Portsmouth PO1 3PD, (the "Company") and Neil MacDonald of 24
Havant Road, Horndean, Hants PO8 0DT (the "Executive").
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth,
the parties hereto agree as follows:
ss.1. EMPLOYMENT AND TERM
The Company hereby employs Executive, and Executive hereby agrees to
serve, as an Executive employee of the Company with the duties set
forth in ss.3, for a term (hereinafter called the "Term of Employment")
beginning from the date first mentioned above and ending, unless sooner
terminated under ss.5, on the effective date specified in a notice of
termination given by either party to the other except that such
effective date shall not be earlier than the second anniversary of the
date on which such notice is given.
ss.2. GENERAL
There shall be deemed to form part of the terms and conditions of this
Agreement the Terms and Conditions of Employment for Monthly Paid Staff
(as amended from time to time) and the terms of the Company's Technical
Patent and Confidentiality Agreement, copies of which the executive
acknowledges having received PROVIDED ALWAYS that in the event of
conflict between any part of those terms and this Agreement the terms
and conditions of this Agreement shall prevail.
ss.3. DUTIES
(a) Executive agrees that during the Term of Employment he will hold such
offices or positions with the Company, and perform such duties and
assignments relating to the business of the Company, as the Board of
Directors, the Managing Director of the Company or the Chief Executive
Officer of Pall Corporation shall direct except that Executive shall
not be required to hold any office or position or to perform any duties
or assignment inconsistent with his experience and qualifications or
not customarily performed by a corporate officer. The Company
represents to Executive that the Board of Directors (acting by its
Compensation Committee) has authorized the making of this Agreement and
expressed its present intention that during the Term of Employment
Executive will be an elected officer of the Company. The failure of any
future Board of Directors to elect Executive as an officer of the
Company shall not, however, be deemed to relieve either party hereto of
any of his or its obligations under this Agreement.
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(b) If the Board of Directors or the Chief Executive Officer of the Company
so directs, Executive shall serve as an officer of one or more
subsidiary or associated companies of the Company (provided that the
duties of such office are not inconsistent with Executive's experience
and qualifications and are duties customarily performed by a corporate
officer) and part or all of the compensation to which Executive is
entitled hereunder may be paid by such subsidiary or subsidiaries.
However, such employment and/or payment of Executive by a subsidiary or
subsidiaries shall not relieve the Company from any of its obligations
under this Agreement except to the extent of payments actually made to
Executive by a subsidiary.
(c) During the Term of Employment Executive shall, except during customary
holiday periods and periods of illness, devote substantially all of his
business time and attention to the performance of his duties hereunder
and to the business and affairs of the Company and its subsidiary and
associated companies and to promoting the best interests of the Company
and its subsidiary and associated companies and he shall not, either
during or outside of such normal business hours, engage in any activity
inimical to such best interests.
ss.4. SALARY AND OTHER BENEFITS
(a) Base Salary
THE Company or a subsidiary or associated company of the Company shall
pay to the executive during the continuance of his employment hereunder
a salary at the annual rate set out in the Schedule hereto (or such
rate as may from time to time be agreed or determined upon and notified
by the Company to the Executive). In the event of any alteration of
salary being so agreed or notified the alteration shall thereafter have
effect as if it were specifically provided for as a term of this
Agreement. Such salary shall be inclusive of any other sums receivable
as Director's fees or other remuneration from the Company or any of its
subsidiary or associated companies. The said salary shall be payable by
equal monthly payments in arrear by the last day of each month.
(b) Bonus Compensation
(i) Formula Bonus Compensation. With respect to each fiscal year of the
Company falling in whole or in part within the Term of Employment
beginning with the fiscal year in which the Term Commencement Date
occurs, Executive shall be entitled to a bonus (in addition to his Base
Salary) in such amount and computed in such manner as shall be
determined by the Board of Directors but in no event shall the bonus
payable to Executive under this ss.4(b) be less than an amount computed
by applying to the fiscal year in question the following bonus formula:
"Formula Bonus Compensation" means the amount, if any, payable to
Executive under this ss.4(b)(i) and "Bonus Compensation" means the
total amount payable under ss.4(b)(i) and ss.4(b)(ii).
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"Average Equity" means the average of stockholders' equity as shown on
the fiscal year-end consolidated balance sheet of Pall Corporation as
of the end of the fiscal year with respect to which Formula Bonus
Compensation is being computed hereunder and as of the end of the
immediately preceding fiscal year (e.g., "Average Equity" to be used in
computing Bonus Compensation for the fiscal year ending July 31, 2000
will be the average of stockholders' equity as of August 1, 1999 and
July 31, 2000) except that the amount shown as the "equity adjustment
from foreign currency translation" on each such consolidated balance
sheet shall be disregarded and the amount of $3,744,000 shall be the
equity adjustment (increase) from foreign currency translation used to
determine stockholders' equity at each such year-end balance sheet
date.
"Net Earnings" means the after-tax consolidated net earnings of Pall
Corporation and its subsidiaries as certified by its independent
accountants for inclusion in the annual report to stockholders.
"Return on Equity" means Net Earnings as a percentage of Average
Equity. For fiscal year 2000, "Zero Bonus Percentage" shall mean a
Return on Equity of 12.5% and "Maximum Bonus Percentage" shall mean a
Return on Equity of 17.0%. For fiscal years after fiscal 2000 Pall
Corporation shall determine the Zero Bonus Percentage and the Maximum
Bonus Percentage, consistent in each case with expected results based
upon the Company's normal projection procedures, or based on sound
statistical or trend data, and the determination by the Company of such
percentages shall be conclusive and binding on Executive.
If Return on Equity for the fiscal year in question is the Zero Bonus
Percentage or less, no Formula Bonus Compensation shall be payable. If
Return on Equity equals or exceeds the Maximum Bonus Percentage, the
Formula Bonus Compensation payable to Executive shall be 12.5% of his
Base Salary. If Return on Equity is more than the Zero Bonus Percentage
and less than the Maximum Bonus Percentage, the Formula Bonus
Compensation shall be increased from zero percent of Base Salary
towards 12.5% of Base Salary in the same proportion that Return on
Equity increases from the Zero Bonus Percentage to the Maximum Bonus
Percentage. Thus, for example, if Return on Equity for fiscal 2000 is
14.75% (the midpoint between 12.5% and 17%) the Formula Bonus
Compensation shall be an amount equal to 6.25% of Executive's Base
Salary (the midpoint between zero percent of Base Salary and 12.5% of
Base Salary).
(ii) Business Segment Bonus Compensation. Inasmuch as Executive's
services for the Company relate primarily to the operations of a
subsidiary, a division or other segment of the overall operations of
the Company and its subsidiary or associated companies (a "Business
Segment"), Executive shall be considered for additional bonus
compensation for each fiscal year based on the results of operations of
such Business Segment for such fiscal year. The amount of such
additional bonus compensation, if any, shall be determined by the chief
executive officer of Pall Corporation in his sole discretion but in no
event shall such additional bonus compensation exceed 12.5% of
Executive's Base Salary.
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(iii) The Bonus Compensation shall be paid in instalments as follows:
o 50% of the estimated amount thereof in the October following
the end of the fiscal year with respect to which the Bonus
Compensation is payable, and
o the balance thereof not later than March 31 next following the
end of the fiscal year with respect to which the Bonus
Compensation is payable.
With respect to any fiscal year of Pall Corporation which
falls in part but not in whole within the Term of Employment,
the Bonus Compensation to which Executive is entitled under
this ss.4(b) shall be prorated on the basis of the number of
days of such fiscal year falling within the Term of Employment
except that if the Term of Employment ends within five days
before or after the end of a fiscal year, there shall be no
proration and the Bonus Compensation shall be payable with
respect to the full fiscal year ending within such five-day
period.
(c) Fringe Benefits and Perquisites
(i) There shall be refunded to the Executive all out-of-pocket expenses
properly incurred by him in the performance of his duties including
expenses of entertainment, subsistence and travelling. The Executive
shall produce to the Company at its request all supporting vouchers and
documents in respect of such expenses.
(ii) The Executive shall be entitled without loss of remuneration to
such holiday in each year (in addition to Bank and other public
holidays occurring when not on holiday) as stated in the Terms and
Conditions of Employment for Monthly Paid Staff or as may otherwise be
determined by the Board of Directors to be taken at such time or times
as may be approved by the Board of Directors. No holiday entitlement
may be carried over from year to year and the Executive shall not be
entitled to be paid in lieu of untaken holiday.
(iii) The Executive shall be entitled to participate in such benefit
schemes as may be provided by the Company from time to time including
but not limited to medical insurance and life insurance, stock options
or purchase plans, and the executive supplementary pension scheme in
accordance with the rules and regulations and announcements applicable
to the said schemes from time to time in force.
(iv) The Company shall provide a motor car for the use of the Executive
for the performance of his duties under this Agreement, or a cash
alternative as shall be determined by the Board of Directors to be
consistent with the Executive's office or position.
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ss.5. TERMINATION BY REASON OF DISABILITY, DEATH, RETIREMENT, CHANGE OF
CONTROL OR BREACH OF THIS AGREEMENT
(a) Disability or Death. If, during the Term of Employment, Executive,
by reason of physical or mental disability, is incapable of
performing his principal duties hereunder for an aggregate of 130
working days out of any period of twelve consecutive months, the
Company at its option may terminate the Term of Employment
effective immediately by notice to Executive given within 90 days
after the end of such twelve-month period. If Executive shall die
during the Term of Employment or if the Company terminates the
Term of Employment pursuant to the immediately preceding sentence
by reason of Executive's disability, the Company shall pay to
Executive, or to Executive's legal representatives, or in
accordance with a direction given by Executive to the Company in
writing, the following: (i) Executive's Base Salary to the end of
the month in which such death or termination for disability occurs
and Executive's Bonus Compensation prorated to said last day of
the month and (ii) for the period from the end of the month in
which such death or termination for disability occurs until the
earlier of (x) the first anniversary of the date of death or
termination and (y) the date on which the Term of Employment would
have ended but for such death or termination for disability,
monthly payments at one-half of the rate of Executive's Base
Salary plus one-half of Executive's Bonus Compensation (prorated
to the last day of such period) which would have been payable with
respect to such period but for such death or termination.
(b) Retirement. At any time after the Executive's 65th birthday
(irrespective of whether the Executive is age 65 when this
Agreement is entered into), by notice to the Executive effective
on the date specified in such notice;
(c) Change of Control. In the event of a Change in Control (as
hereinafter defined) of the Company, the Executive shall have the
right to terminate this Agreement by giving not less than 3
months' and not more than 24 months' prior written notice to the
Company such notice to be given not more than 24 months following
such Change in Control.
(d) Breach of this Agreement. By summary notice if the Executive shall
have committed any serious breach or have repeated or have
continued (after warning) any material breach of his obligations
hereunder or shall have been guilty of conduct tending to bring
himself or the Company or any of its subsidiary or associated
companies into disrepute or shall have become bankrupt or
compounded with his creditors generally or have been convicted of
any criminal offence involving a custodial sentence;
(e) Upon the termination of this Agreement howsoever arising the
Executive shall at any time or from time to time thereafter upon
the request of the Company, resign without claim for compensation
from office as a Director of the company and all offices held by
him in subsidiary and associated companies of the Company and
should he fail so to do the Company is hereby irrevocably
authorised to appoint some person in his name and on his behalf to
sign and do any documents or things necessary or requisite to give
effect thereto. If the Executive shall cease to be an officer of
the Company or any of its subsidiaries or associated companies
(other than ceasing to be a Group Vice President of Pall
Corporation) this Agreement shall not hereby automatically
terminate.
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ss.6. COMPANY'S RIGHT TO INJUNCTIVE RELIEF
Executive acknowledges that his services to the Company are of a unique
character, which gives them a peculiar value to the Company, the loss
of which cannot be reasonably or adequately compensated in damages in
an action at law, and that therefore, in addition to any other remedy
which the Company may have at law or in equity, the Company shall be
entitled to injunctive relief for a breach of this Agreement by
Executive.
ss.7. INVENTIONS AND PATENTS
All inventions, ideas, concepts, processes, discoveries, improvements
and trademarks (hereinafter collectively referred to as intangible
rights), whether patentable or registrable or not, which are conceived,
made, invented or suggested either by Executive alone or by Executive
in collaboration with others during the Term of Employment, and whether
or not during regular working hours, shall be disclosed to the Company
and shall be the sole and exclusive property of the Company. If the
Company deems that any of such intangible rights are patentable or
otherwise registrable under any federal, state or foreign law,
Executive, at the expense of Pall Corporation, shall execute all
documents and do all things necessary or proper to obtain patents
and/or registrations and to vest the Company with full title thereto.
ss.8. TRADE SECRETS AND CONFIDENTIAL INFORMATION
Executive shall not, either directly or indirectly, except as required
in the course of his employment by the Company, disclose or use at any
time, whether during or subsequent to the Term of Employment, any
information of a proprietary nature owned by the Company, including but
not limited to, records, data, formulae, documents, specifications,
inventions, processes, methods and intangible rights which are acquired
by him in the performance of his duties for the Company and which are
of a confidential information or trade-secret nature. All records,
files, drawings, documents, equipment and the like, relating to the
Company's business, which Executive shall prepare, use, construct or
observe, shall be and remain the Company's sole property. Upon the
termination of his employment or at any time prior thereto upon request
by the Company, Executive shall return to the possession of the Company
any materials or copies thereof involving any confidential information
or trade secrets and shall not take any material or copies thereof from
the possession of the Company.
ss.9. HEADINGS
THE headings in this Agreement are not part of the provisions hereof,
are merely for the purpose of reference and shall have no force or
effect for any purpose whatsoever, including the construction of the
provisions of this Agreement, and if any heading is inconsistent with
any provisions of this Agreement, the said provisions shall govern.
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ss.10. DEFINITIONS
IN this Agreement:-
(i) words and phrases defined for the purposes of Section 736 of
the Companies Act 1985 shall bear the same meaning;
(ii) "associated company" means any company which is (a) a company
having an ordinary share capital of which not less than 25 per
cent is owned directly or indirectly by the Company applying
the provisions of Section 838 of the Income and Corporation
Taxes Act 1988 in the determination of ownership or (b) a
holding company of the Company or a subsidiary of any such
holding company or (c) a company to which the Company or any
of its subsidiaries renders managerial, administrative or
technical service otherwise than in the ordinary course of its
business;
(iii) "the Board of Directors" means the Board of Directors of the
Company as the same may be constituted from time to time and
includes any duly appointed committee thereof;
(iv) "Change of Control" - a Change in Control of the Company shall
be deemed to have occurred if:
(a) the Company or its holding company sells or agrees to
sell the whole or substantially the whole of the
undertaking and assets of the Company; or
(b) the Company or its holding company sells or agrees to
sell the whole or not less than 50% of the equity
share capital of the Company; or
(c) a member of the Company or its holding company obtains
control of the composition of the Board of Directors of
the Company. For the purpose of this paragraph (c) the
composition of the Company's Board of Directors shall
be deemed to be controlled by a member if (but only if)
the member by the exercise of some power exercisable by
it without the consent or concurrence of any other
person can appoint or remove all or a majority of the
Directors of the Company.
ss.11. PROPER LAW
THE construction validity and performance of this Agreement shall be
governed in all respects by English law and the parties agree that the
English Courts shall have exclusive jurisdiction in respect of any
dispute suit action or proceedings which may arise out of or in
connection with this Agreement and hereby submit to the jurisdiction of
the English Courts.
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ss.12. ENTIRE CONTRACT
This instrument contains the entire agreement of the parties on the
subject matter hereof except that the rights of the Company hereunder
shall be deemed to be in addition to and not in substitution for its
rights under the Company's standard printed form of "Employee's Secrecy
and Invention Agreement" or "Employee Agreement" if heretofore or
hereafter entered into between the parties hereto so that the making of
this Agreement shall not be construed as depriving the Company of any
of its rights or remedies under any such Secrecy and Invention
Agreement or Employee Agreement. This Agreement may not be changed
orally, but only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, modification, extension or
discharge is sought.
ss.13. NOTICES
All notices given hereunder shall be in writing and shall be sent by
registered or certified mail or delivered by hand, and, if intended for
the Company, shall be addressed to it (if sent by mail) or delivered to
it (if delivered by hand) at its principal office for the attention of
the Secretary of the Company, or at such other address and for the
attention of such other person of which the Company shall have given
notice to Executive in the manner herein provided, and, if intended for
Executive, shall be delivered to him personally or shall be addressed
to him (if sent by mail) at his most recent residence address shown in
the Company's employment records or at such other address or to such
designee of which Executive shall have given notice to the Company in
the manner herein provided. Each such notice shall be deemed to be
given on the date of mailing thereof or, if delivered personally, on
the date so delivered.
ss.14. TERMINATION OF ANY PRIOR EMPLOYMENT AGREEMENT
Any Employment Agreement in effect between the Company and Executive on
the date hereof is hereby terminated by mutual consent effective as
from the date of commencement of this Agreement and is superseded and
replaced by this Agreement.
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IN WITNESS WHEREOF the Company has affixed its Common Seal and the Executive has
set his hand and seal the day and year first above written.
THE COMMON SEAL OF )
PALL EUROPE LIMITED )
was hereunto affixed )
in the presence of:- )
A T Scully /s/ A Scully
D M Louch /s/ D Louch
SIGNED SEALED AND DELIVERED )
by the said )
Neil MacDonald ) /s/ N MacDonald
in the presence of: )
J K Hayward-Surry /s/ J Hayward-Surry
SCHEDULE
Pursuant to Clause 4 (A) the annual salary of the Executive shall be
(pound)87,500.00
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