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Exhibit 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated October 6, 1997,
between PALL CORPORATION, a New York corporation (the "Company"), and XXXX
XXXXXXXX ("Executive").
WHEREAS, the parties hereto are parties to an Employment Agreement
dated April 1, 1994 providing for a Term of Employment beginning on that date
and ending not earlier than March 31, 1999 (the "Original Agreement"); and
WHEREAS, the Original Agreement has heretofore been amended by
Amendment Dated July 11, 1994, and the parties desire to extend the term of and
make certain other amendments to the Original Agreement; and
WHEREAS, for convenience, the parties desire to restate the Original
Agreement as heretofore amended and as proposed to be amended so that, as thus
restated, there will be a single document embodying and constituting the
Original Agreement as amended to and including the date hereof,
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements hereinafter set forth, the parties hereto agree that from and after
the date hereof the Employment Agreement between them reads and provides as
follows:
Section 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
Section 2, for a term (hereinafter called the "Term of Employment") which began
April 1, 1994 (the "Term Commencement
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Date") and ending, unless sooner terminated under Section 2 or Section 4, 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 later of (i)
July 31, 2003 and (ii) the second anniversary of the date on which such notice
is given.
Section 2. Duties.
(a) As used herein, the term "chief executive officer" means the person
who has the title of chief executive officer of the Company and also has such
authority and duties as are customarily possessed by and assigned to a chief
executive officer. If at any time during the Term of Employment--
(i) the Board of Directors shall fail to elect Executive to,
or shall remove him from, the office which, in accordance with the
by-laws as then in effect or any resolution or resolutions of the Board
of Directors, carries with it the title, authority and duties of chief
executive officer, or
(ii) the by-laws are amended in such a way that, or the Board
of Directors takes any action the effect of which is that, Executive no
longer has the title of and the authority and duties which are
customarily possessed by and assigned to a chief executive officer,
then in either such event Executive shall have the right at his option to
terminate the Term of Employment by not less than 30 days' notice to the
Secretary of the Company given at any time thereafter. During any period of time
when Executive has the right to terminate under
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this paragraph but elects not to do so, he shall hold such office or offices in
the Company, and perform such duties and assignments relating to the business of
the Company, as the Board of Directors and/or the chief executive officer shall
direct except that Executive shall not be required to hold any office or perform
any duties or assignment inconsistent with his experience and qualifications or
not customarily performed by a senior executive corporate officer. So long as
Executive is performing or stands ready to perform duties and assignments in
accordance with the preceding sentence, the Term of Employment shall continue
until it thereafter terminates or is terminated pursuant to any applicable
provision hereof (including but not limited to termination at Executive's option
under this paragraph).
(b) During the Term of Employment, Executive shall, except during
customary vacation 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 subsidiaries and to promoting
the best interests of the Company and its subsidiaries, and he shall not, either
during or outside of such normal business hours, engage in any activity inimical
to such best interests.
Section 3. Compensation and Benefits During Term of Employment.
(a) Base Salary. With respect to the period beginning on the Term
Commencement Date and ending on July 31, 1997, the Company paid Executive a Base
Salary in accordance with the provisions of Section 3(a) of the Original
Agreement. With respect to the Contract Year beginning on August 1, 1997 and
ending on July 31, 1998, the Company
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shall pay to Executive a Base Salary (in addition to the compensation provided
for elsewhere in this Agreement) at the rate of $537,000 per annum (hereinafter
called the "Original Base Salary"). With respect to each Contract Year beginning
with the Contract Year which starts August 1, 1998, the Company shall pay
Executive a Base Salary at such rate as the Board of Directors may determine but
not less than the Original Base Salary adjusted as follows: The term "Contract
Year" as used herein means the period from August 1 of each year through July 31
of the following year. For each Contract Year during the Term of Employment
beginning with the Contract Year which starts August 1, 1998, the minimum
compensation payable to Executive under this Section 3(a) (hereinafter called
the "Minimum Base Salary") shall be determined by increasing (or decreasing) the
Original Base Salary by the percentage increase (or decrease) of the Consumer
Price Index (as hereinafter defined) for the month of June immediately preceding
the start of the Contract Year in question over (or below) the Consumer Price
Index for June 1997. The term "Consumer Price Index" as herein used means the
"Consumer Price Index for all Urban Consumers" compiled and published by the
Bureau of Labor Statistics of the United States Department of Labor for "New
York Northern New Jersey - Long Island, NY-NJ-CT." To illustrate the operation
of the foregoing provisions of this Section 3(a): Executive's Base Salary for
the Contract Year August 1, 1998 through July 31, 1999 shall be not less than
the Original Base Salary adjusted by the percentage increase (or decrease) of
the Consumer Price Index for June 1998 over (or below) said Index for June 1997.
Further adjustment in the Minimum Base Salary shall be made for
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each ensuing Contract Year, in each case (i) using the Consumer Price Index for
June 1997 as the base except as provided in the immediately following paragraph
hereof and (ii) applying the percentage increase (or decrease) in the Consumer
Price Index since said base month to the Original Base Salary to determine the
Minimum Base Salary. The Base Salary shall be paid in such periodic installments
as the Company may determine but not less often than monthly.
If with respect to any Contract Year (including the Contract Year
beginning August 1, 1998) the Board of Directors fixes the Base Salary at an
amount higher than the Minimum Base Salary, then (unless a resolution adopted
simultaneously with the resolution fixing such higher Base Salary for such
Contract Year provides otherwise), for the purpose of determining the Minimum
Base Salary for subsequent Contract Years: (i) the amount of the higher Base
Salary so fixed shall be deemed substituted for the Original Base Salary
wherever the Original Base Salary is referred to in the immediately preceding
paragraph hereof, and (ii) the base month for determining the Consumer Price
Index adjustment shall be June of the calendar year in which the Contract Year
to which such higher Base Salary is applicable begins (e.g., if the Board fixes
a Base Salary for the Contract Year beginning August 1, 1998 which is higher
than the Minimum Base Salary, then June 1998 would become the base month for the
purposes of making the CPI adjustment to determine the Minimum Base Salary for
subsequent Contract Years).
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(b) 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 ending July 30, 1994, 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 Section 3(b) be less than an amount computed by applying
to the fiscal year in question the following bonus formula:
"Bonus Compensation" means the amount, if any, payable to
Executive under this Section 3(b).
"Average Equity" means the average of stockholders' equity as
shown on the fiscal year-end consolidated balance sheet of the Company
as of the end of the fiscal year with respect to which 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 30, 1994
will be the average of stockholders' equity as of July 31, 1993 and
July 30, 1994) 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.
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"Net Earnings" means the after-tax consolidated net earnings
of the Company 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 years 1994 and 1995, "Zero Bonus Percentage" shall
mean a Return on Equity of 12.5%. For fiscal year 1994, "Maximum Bonus
Percentage" shall mean a Return on Equity of 19%. For fiscal years
after fiscal 1995, the Company shall determine the Zero Bonus
Percentage, and for fiscal years after fiscal 1994, the Company shall
determine 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 Bonus Compensation shall be payable. If Return on Equity equals or
exceeds the Maximum Bonus Percentage, the Bonus Compensation payable to
Executive shall be 75% of his Base Salary for fiscal 1994 and 100% of his Base
Salary for subsequent fiscal years. If Return on Equity is more than the Zero
Bonus Percentage and less than the Maximum Bonus Percentage, the Bonus
Compensation shall be increased from zero percent of Base Salary
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towards 100% of Base Salary (after fiscal 1994) 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 1995 is 15.75%
(the midpoint between 12.5% and 19%, the Company on July 11, 1994 having
determined the Maximum Bonus Percentage for fiscal 1995 to be 19%), the Bonus
Compensation shall be an amount equal to 50% of Executive's Base Salary (the
midpoint between zero percent of Base Salary and 100% of Base Salary).
The Bonus Compensation shall be paid in installments as follows:
(i) 50% of the estimated amount thereof in July of the fiscal
year with respect to which the Bonus Compensation is payable (e.g., 50%
in July 1994 with respect to Bonus Compensation for the fiscal year
ending July 30, 1994), based on the then current projections of Return
on Equity, and
(ii) the balance thereof not later than January 15 next
following the end of the fiscal year with respect to which the Bonus
Compensation is payable. With respect to any fiscal year of the Company
which falls in part but not in whole
within the Term of Employment, the Bonus Compensation to which Executive is
entitled under this Section 3(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
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Compensation shall be payable with respect to the full fiscal year ending within
such five-day period, provided, however, that for the purpose of computing Bonus
Compensation for the fiscal year ending July 30, 1994, the period of August 1,
1993 to the Term Commencement Date shall be deemed part of the Term of
Employment under this Agreement.
(c) Fringe Benefits and Perquisites. During the Term of Employment,
Executive shall enjoy the customary perquisites of office, including but not
limited to office space and furnishings, secretarial services, expense
reimbursements, and any similar emoluments customarily afforded to senior
executive officers of the Company. Executive shall also be entitled to receive
or participate in all "fringe benefits" and employee benefit plans provided or
made available by the Company to its executives or management personnel
generally, such as, but not limited to, group hospitalization, medical, life and
disability insurance, and pension, retirement, profit-sharing and stock option
or purchase plans.
(d) Vacation. Executive shall be entitled each year to a vacation or
vacations in accordance with the policies of the Company as determined by the
Board or by an authorized senior officer of the Company from time to time. The
Company shall not pay Executive any additional compensation for any vacation
time not used by Executive.
(e) Relocation Expenses. If at any time during the Term of
Employment Executive changes the location of his principal office, either at the
request of the Company or because it is in the best interests of the Company for
him to do so, to a location more than one hour's commuting time from the present
principal office of the Company in East Hills, Long Island,
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New York, the Company shall reimburse Executive for all costs and expenses
reasonably related to or arising from such relocation, including but not limited
to the cost of suitable housing at the new location, the cost of continuing to
maintain his residence at the old location if he so elects, moving expenses, and
the amounts necessary to equalize Executive's taxes and cost of living between
the old and new locations so that Executive will not have suffered any financial
disadvantage from having relocated.
Section 4. Termination by Reason of Disability, Death,
Retirement or Change of Control.
(a) Disability or Death. If, during the Term of Employment,
Executive, by reason of physical or mental disability, has been incapable of
performing his principal duties hereunder for an aggregate of 130 working days
out of any period of 12 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 12-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, 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.
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(b) Retirement.
(i) The Term of Employment shall end automatically, without
action by either party, on Executive's 65th birthday unless prior to
such birthday Executive and the Company have agreed in writing that the
Term of Employment shall continue past such 65th birthday. In that
event, unless the parties have agreed otherwise, the Term of Employment
shall be automatically renewed and extended each year, as of
Executive's birthday, for an additional one-year term, unless either
party has given a Non-Renewal Notice. A Non-Renewal Notice shall be
effective as of Executive's ensuing birthday only if given not less
than 60 days before such birthday and shall state that the party giving
such notice elects that this Agreement shall not automatically renew
itself further, with the result that the Term of Employment shall end
on Executive's ensuing birthday.
(ii) If the Term of Employment ends pursuant to this paragraph
by reason of a notice given by either party as herein permitted or
automatically at age 65 or any subsequent birthday, the Company shall
pay to Executive, or to another payee specified by Executive to the
Company in writing, Executive's Base Salary and Bonus Compensation
prorated to the date on which the Term of Employment ends.
(iii) Anything hereinabove to the contrary notwithstanding, if
any provision of this paragraph violates federal or applicable state
law relating to discrimination on account of age, such provision shall
be deemed modified or suspended to the extent
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necessary to eliminate such violation of law. If at a later date, by
reason of changed circumstances or otherwise, the enforcement of such
provision as set forth herein would no longer constitute a violation of
law, then it shall be enforced in accordance with its terms as set
forth herein.
(c) Change of Control. In event of a Change of Control (as hereinafter
defined), Executive shall have the right to terminate the Term of Employment, by
notice to the Company given at any time after such Change of Control, effective
on the date specified in such notice, which date shall not be more than (but can
be less than) one year after the giving of such notice. A Change of Control
shall be deemed to have occurred at such time as a majority of the directors
then in office are not Continuing Directors as defined in subparagraph (C)(6) of
Paragraph 12 of the Company's Restated Certificate of Incorporation dated
November 23, 1993 and filed by the New York Department of State on December 7,
1993.
Section 5. Severance.
Executive shall be entitled to receive severance pay from the Company,
in the amount determined as hereinafter in this paragraph provided, in the event
that the Term of Employment is terminated by the Company under Section 1 hereof
or by Executive under Section 2 or Section 4(c) hereof. The amount of such
severance pay shall be an amount equal to the Base Salary which would have been
payable to Executive during the 24 months following the date on which the Term
of Employment ends by reason of such termination, plus 100% of such Base
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Salary (representing the maximum Bonus Compensation payable under Section 3(b)
hereof). Executive shall have the option of (i) having such severance payment
made in installments, over the 24 months following the end of the Term of
Employment, at the same times at which Executive's Base Salary and Bonus
Compensation would have been paid had the Term of Employment not been terminated
or (ii) accepting as such severance pay an amount equal to the present value, as
of the date on which the Term of Employment ends, of the stream of payments
payable under clause "(i)" of this sentence, except that if Executive elects a
lump-sum payment under this clause "(ii)," there shall be no cost-of-living
adjustment of the Base Salary as would otherwise be made in accordance with
Section 3(a) hereof (because at the time such lump-sum payment is made, the
amount of the cost-of-living adjustment would not be known). In determining such
present value, a discount rate of 8% shall be utilized. The severance payment
provided for herein if Executive elects a lump sum shall be made within 20 days
after the end of the Term of Employment.
Section 6. Annual Contract Pension and Medical Coverage After Term of
Employment.
(a) For a period of 120 consecutive months beginning at the end of the
Term of Employment (unless Executive is entitled to severance pay under Section
5 hereof, in which event said period of months shall begin on the second
anniversary of the end of the Term of Employment), the Company shall pay
(i) to Executive during his lifetime, and
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(ii) if Executive is not living at the time any such payment
is due, then to such payee or payees (including a trust or trusts) as
Executive may at any time (whether during or after the Term of
Employment) designate by written notice to the Company or in his last
will and testament or, if no such designation is made, then to the
legal representatives of Executive's estate (any such designated payee
or estate being hereinafter called "Executive's Successor")
an "Annual Contract Pension" computed as follows: The term "Final Pay" as used
herein means one-third of the aggregate of Executive's total cash compensation
(i.e., Base Salary plus incentive compensation and any other bonus payments) for
those three full fiscal years out of the last five full fiscal years of the Term
of Employment with respect to which three fiscal years Executive received the
highest total cash compensation. The Annual Contract Pension payable to
Executive for each "Retirement Year" (as hereinafter defined) shall be an amount
determined by (I) adjusting Executive's Final Pay for changes in the Consumer
Price Index in the manner set forth in Section 3(a) except that for purposes of
the adjustment under this Section 6, the base month, instead of being June 1997,
shall be the month preceding the month in which payment of the Annual Contract
Pension commences and the comparison month shall be the same month in each
succeeding year and (II) multiplying the Final Pay as so adjusted by 60% and
subtracting therefrom the amount which, as of the last day of the Term of
Employment (i.e., the effective date of termination of the Term of Employment
under any of the provisions of Sections 1, 2 or 4 hereof), is the maximum annual
benefit payable, in accordance with
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Section 415(b)(1)(A) of the Internal Revenue Code (or successor section), as
adjusted by the Secretary of the Treasury to such last day under Section 415(d)
of the Code (or successor section), under a pension plan which qualifies under
Section 401(a) of the Code (or successor section). Such maximum annual benefit
is hereinafter called the "Maximum Qualified Plan Pension". Each 12-month period
beginning on the first day of the month in which the Annual Contract Pension
first becomes payable hereunder and on the first day of the same month during
each of the succeeding years in which the Annual Contract Pension is payable
hereunder is herein called a "Retirement Year." There shall be no adjustment of
the Final Pay based on the Consumer Price Index for the purpose of determining
the Annual Contract Pension for the first Retirement Year so that during such
first Retirement Year the Annual Contract Pension shall be 60% of Final Pay
minus the Maximum Qualified Plan Pension; there shall be such adjustment of
Final Pay for the purpose of determining the Annual Contract Pension for the
second and each succeeding Retirement Year.
(b) The Company hereby represents to and agrees with Executive, in
order to induce Executive to enter into this Amended and Restated Employment
Agreement, as follows: For purposes of the Company's Supplementary Pension Plan,
the amount of the offset pursuant to Section 3.1(b)(i) thereof shall be the
amount of the pension in fact payable to Executive under the Pall Corporation
Pension Plan, after giving effect to any distribution theretofore made under
said Plan pursuant to a qualified domestic relations order. The immediately
preceding sentence shall not, however, be deemed to modify the last sentence of
said Section 3.1, which reads and provides as follows:
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"For purposes of this Section, the amount of the pension payable to the
Member under any Other Retirement Program shall be deemed to be the
amount equal to the form of pension payable only to, and during the
lifetime of, the Member, whether or not the Member receives payment of
such pension in some other form permitted under such Other Retirement
Program; but the amount of such pension shall be taken into account
only on and after the date on which payment of the Member's pension
under such Other Retirement Program is to commence."
(c) The Annual Contract Pension shall be paid in equal monthly
installments on the last business day of each month during the period with
respect to which the Annual Contract Pension is payable.
(d) So long as Executive is living it shall be a condition of the
payment of the Annual Contract Pension that, to the extent permitted by
Executive's health, he shall be available for advisory services requested by the
Board of Directors of the Company, the Executive Committee of said Board or the
chief executive officer of the Company, provided that such advisory services
shall not require more than 15 hours in any month. The Company shall reimburse
Executive for all travel and other expenses which he incurs in connection with
such advisory services.
(e) At the option of the Board of Directors of the Company, payment of
the Annual Contract Pension shall cease and the right of Executive and
Executive's Successor to all future such payments shall be forfeited if
Executive shall, without the written consent of the chief executive officer of
the Company, render services to any corporation or other entity engaged in any
activity, or himself engage in any activity, which is competitive to any
material extent with the business in which the Company or any of its
subsidiaries shall be
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engaged at the end of the Term of Employment and in which the Company or any
such subsidiary shall still be engaged at the date such services or activity is
rendered or engaged in by Executive, provided, however, that if the Company
terminates under Section 1 following a Change of Control (as defined in
Section 4(c)), the provisions of this Section 6(e) shall be deemed deleted from
this Agreement and shall have no force or effect.
(f) Beginning at the end of the Term of Employment, the Company at its
sole expense shall provide "full medical coverage" (as hereinafter defined) for
Executive during his lifetime. As used herein, "full medical coverage" means
coverage which, when taken in conjunction with any government-financed medical
coverage available to Executive, will pay or reimburse Executive for all
"Medical Expenses," which term as used herein means and includes all costs of
doctors, hospitalization and related services incurred by Executive, provided,
however, that Executive shall not be required to participate in or utilize any
government-financed medical coverage or scheme (i) which does not allow the
participants a free choice of doctors and hospitals or (ii) which is available
only if the participant passes a "means test"; i.e., has assets or income below
a specified level. The Company shall have the option of providing such coverage
either through insurance (a group policy or an individual policy, at the
Company's option) or if for any reason such insurance coverage is not available
or is deemed by the Company to be unduly expensive, the Company shall itself pay
or reimburse Executive for all Medical Expenses in excess of the portion thereof
paid
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by any government-financed coverage which Executive is obligated to utilize
under the preceding provisions of this paragraph.
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Section 7. Internal Revenue Code Section 4999.
If any payments to Executive, whether under this Agreement or
otherwise, would be subject to excise tax under Section 4999 of the Internal
Revenue Code of 1986, as amended, then payments hereunder shall be reduced or
deferred to the extent required (and only to the extent required) to avoid the
application of Section 4999; provided, however, that no such reduction or
deferral shall be made unless as a result thereof Executive's after-tax economic
position (taking into account not only payments under this Agreement and the
taxes thereon, but also the taxes that would otherwise be imposed on any
payments to which Executive is otherwise entitled) would be improved. In making
the determination whether Executive's after-tax economic position would be so
improved, the judgment of a certified public accountant or attorney chosen by
Executive shall be final. In the event of a reduction or deferral of payments
pursuant to this paragraph, Executive shall be entitled to specify which
payments shall be reduced or deferred.
Section 8. Acceleration of Stock Options.
On the date which is 30 days before the date on which the Term of
Employment will end by reason of a notice of termination given by either party
hereto under any of the provisions hereof, all employee stock options held by
Executive shall become exercisable in full (i.e., to the extent that any such
option or portion thereof is not yet exercisable, the right to exercise the same
in full shall be accelerated) and such option shall thereafter be fully
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vested and exercisable in full (to the extent not theretofore exercised) until
it expires by its terms.
Section 9. Covenant Not to Compete.
For a period of 18 months after the end of the Term of Employment if
the Term of Employment is terminated by notice to the Company given by Executive
under Section 1, Section 2 or Section 4 hereof, or for a period of 12 months
after the end of the Term of Employment if the Term of Employment is terminated
by notice to Executive given by the Company under Section 1 or Section 4 hereof
or terminates under Section 4 by reason of Executive's attaining the age of 65,
Executive shall not render services to any corporation or other entity engaged
in any activity, or himself engage directly or indirectly in any activity, which
is competitive to any material extent with the business of the Company or any of
its subsidiaries, provided, however, that if the Company terminates under
Section 1 following a Change of Control (as defined in Section 4(c)), the
foregoing covenant not to compete shall not apply.
Section 10. 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.
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Section 11. 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 the Company, 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.
Section 12. 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
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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.
Section 13. Mergers and Consolidations; Assignability.
In the event that the Company, or any entity resulting from any merger
or consolidation referred to in this Section 13 or which shall be a purchaser or
transferee so referred to, shall at any time be merged or consolidated into or
with any other entity or entities, or in the event that substantially all of the
assets of the Company or any such entity shall be sold or otherwise transferred
to another entity, the provisions of this Agreement shall be binding upon and
shall inure to the benefit of the continuing entity in or the entity resulting
from such merger or consolidation or the entity to which such assets shall be
sold or transferred. Except as provided in the immediately preceding sentence of
this Section 13, this Agreement shall not be assignable by the Company or by any
entity referred to in such immediately preceding sentence. This Agreement shall
not be assignable by Executive, but in the event of his death it shall be
binding upon and inure to the benefit of his legal representatives to the extent
required to effectuate the terms hereof.
Section 14. Captions.
The captions 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,
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including the construction of the provisions of this Agreement, and if any
caption is inconsistent with any provisions of this Agreement, said provisions
shall govern.
Section 15. Choice of Law.
This Agreement is made in, and shall be governed by and construed in
accordance with the laws of, the State of New York.
Section 16. Entire Contract.
This Agreement 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.
Section 17. Notices.
All notices given hereunder shall be in writing and shall be sent by
registered or certified mail or overnight delivery service such as Federal
Express or delivered by hand, and, if intended for the Company, shall be
addressed to it (if sent by mail or overnight delivery service) or delivered to
it (if delivered by hand) at is 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 or
overnight delivery service) 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 on which it
is mailed or received by the overnight delivery service or, if delivered
personally, on the date so delivered.
IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated
Employment Agreement as of the day and year first above written.
PALL CORPORATION
By: /s/ Xxxxxx Xxxxxxx-Surry
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Xxxxxx Xxxxxxx-Surry,
President and Treasurer
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
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