CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into on September 2,
2003 between New Brunswick Scientific Co., Inc. a New Jersey corporation (the
"Company"), and Xxxxxxx Xxxxxxxx (the "Consultant").
Whereas, the Company desires to obtain the benefit of the Consultants knowledge
and experience by retaining the Consultant, and the Consultant desires to accept
such position, for the term and upon the other conditions hereinafter set forth.
Now, THEREFORE, in consideration of the mutual promises and agreements contained
herein, the adequacy and sufficiency of which are hereby acknowledged, the
Company and the Consultant hereby agree as follows:
1. EFFECTIVE DATE AND CONSULTING TERM: This Agreement shall be effective on
the date first written above (the "Effective Date"). The Consultant shall
commence rendering his consulting services hereunder on September 2, 2003 and
shall continue to render such services for a one year term expiring on August
31, 2004 (the "Consulting Term"), unless this Agreement is terminated earlier in
accordance with Section 5 or 6 below.
2. POSITION AND DUTIES: During the Consulting Term, the Consultant shall,
at the request of the Company's President or Chief Executive officer, render
consulting services to the Company relating to treasury and financial matters.
During the Consulting Term, the Consultant shall not be required to devote more
than 40 hours per month to the rendering of his consulting services hereunder.
3. LOCATION: The Consultant's consulting services shall be rendered at the
Company's principal executive offices or at any other mutually agreeable
location. The Company will provide the Consultant with office space and
secretarial or other support services in connection with his rendering of
consulting services hereunder.
COMPENSATION: The Consultant shall be compensated by the Company at the rate of
$3,250 per month.
4.3 EXPENSES: During the Consulting Term, the Company shall reimburse the
Consultant for all previously approved business expenses reasonably incurred by
the Consultant in the performance of his consulting services hereinunder as
requested by the President or the Chief Executive Officer of the Company and
upon submission to the Company of appropriate documentation in respect of such
expenses.
4.4 BENEFITS: During the Consulting Term, the Consultant shall not be entitled
to any employee benefits (e.g. group health, insurance, vacation, sick leave,
severance or 401(k) participation) from the Company.
5. VOLUNTARY TERMINATION: The Consultant may voluntarily terminate his
consultancy for any reason upon providing the Company with thirty (30) days'
prior written notice. In the event the Consultant voluntarily terminates his
consultancy with the Company, the Consultant shall be entitled to no
compensation from the Company other than in respect of (i) any weekly
installment of consulting fees earned but not yet paid as of the effective date
of his termination and (ii) the reimbursement of his expenses in accordance with
Section 4 (c) above.
6. OTHER TERMINATION: The Consultant's consultancy may be terminated by the
Company in the event of the Consultant's death or disability (as defined below)
or for cause (as defined below). Upon termination under this Section 6, the
Consultant shall be entitled to no compensation from the Company other than in
respect of (i) any weekly installment of consulting fees earned but not yet paid
as of the effective date of his termination and (ii) the reimbursement of his
expenses in accordance with Section 4 (c) above. For purposes of this
Agreement, (a) "disability" means the Consultant's inability to perform services
for any consecutive 30-day period as a result of a physical and/or mental
impairment and (b) "for cause" means a termination of the Consultant's
consultancy by the Company for any of the following reasons: (i) any action
taken by the Consultant which has a material and detrimental effect on the
Company, its shareholders, its reputation or its business; (ii) the Consultant's
willful and continued refusal to perform any duty reasonably assigned to him in
accordance with the provisions of this Agreement; (iii) any breach of this
Agreement by the Consultant, which if curable, is not cured within ten (10) days
following written notice from the Company to the Consultant of such breach; (iv)
the Consultant's conviction (including any plea of guilty or nolo contendre) for
any criminal act which impairs the Consultant's ability to perform his duties
under this Agreement; or (v) the Consultant becoming an officer, director,
employee or agent of, or a consultant to, a corporation, person, firm or entity,
which in the reasonable determination of the Company results in, or is, likely
to result in, a conflict of interest with the Consultant's position as a
consultant to the Company.
7. NON-SOLICITATION: During the period from the Effective Date through the
end of the Consulting Term and for a twelve month period thereafter, the
Consultant will not, directly or indirectly, recruit, induce or otherwise
attempt to persuade any person who is new or who subsequently becomes an
employee of the Company to terminate his or her relationship with the Company.
8. CONFIDENTIALITY: The Consultant shall not, commencing on the Effective
Date and at all times thereafter, directly or indirectly communicate or divulge
to, or use for the Consultant's own benefit or for the benefit of any other
person, or entity, any of the Company's trade secrets, proprietary data and
confidential information (including without limitation, non public information
pertaining to or derived from (i) meetings at the Company and (ii) discussions
with any officer or employee or former officer or employee of the Company
communicated to or otherwise learned or acquired by the Consultant in the course
of his service hereunder or during the period when he was an employee of the
Company.
9. MUTUAL RELEASE: The Consultant on behalf of himself and his successors,
assigns and heirs and on behalf of each person or entity claiming through any of
them, and the Company, on behalf of itself and its affiliates, their respective
successors and assigns and each person or entity claiming through them, hereby
forever relieves, releases and discharges the other (and, as applicable, any
released party's successors, predecessors, assigns, heirs, agents, directors,
officers and employees) from any and all claims, debts, liabilities, demands,
obligations, actions, or causes of action, whether arising out of acts or
omissions occurring before the execution of this Agreement, whether known or
unknown, apparent or concealed; provided, however, that nothing herein shall be
deemed to release. (i) the Company or the Consultant in connection with their
respective rights and obligations under this Agreement, (ii) the Consultant's
rights to indemnification or reimbursement under the Company's by-laws, articles
of incorporation or insurance policies and (iii) the Consultant's rights to
reimbursement of expenses incurred in respect of his service to the Company.
10. DISPUTE RESOLUTION: In the event of any dispute or claim relating to or
arising out of the Consultant's relationship with the Company, this Agreement or
the termination of the consultancy with the Company for any reason (including
but not limited to, any claims of breach of contract, wrongful termination or
age, disability or other discrimination), any dispute or claim shall be fully,
finally and exclusively resolved by binding arbitration conducted by the
American Arbitration Association in Middlesex County.
11. OWNERSHIP OF COMPANY DOCUMENTS: All memoranda, notes, lists, records,
reports, presentation material, and other documents, as well as all records or
information stored and/or transmitted in electronic media (and all copies
thereof), made or compiled by the Consultant or made available to the Consultant
concerning the business of the Company, and all confidential information of the
Company in any form shall be the Company's property and shall be delivered to
the Company promptly upon the termination of this Consulting Agreement or at any
other earlier time requested by the Company.
12. MISCELLANEOUS:
12.1 REMEDIES: In view of the difficulty of determining the amount of
damages which may result from a violation by the Consultant of one or more of
his convenants, obligations or agreements contained in this Consulting
Agreement, Consultant acknowledges and agrees that the Company shall be entitled
to such relief in both law and equity as an appropriate court or judicial
tribunal, awards, to the Company, including, but not limited to, injunctive
relief and specific performance.
12.2 SEVERABILITY AND REFORMATION: If any part of this Agreement shall be
held unenforceable, the remainder of the Agreement shall nevertheless remain in
full force and effect.
12.3 SURVIVAL: Each relevant obligation of each party shall survive any
termination of this Agreement or of the Consultant's engagement hereunder.
12.4 RELATIONSHIP BETWEEN THE PARTIES: It is expressly agreed between the
parties that the Consultant is retained by the Company only for the purposes and
to the extent set forth in this Agreement. The relationship of the Consultant
to the Company is that of an independent contractor and not as an employee or
agent of the Company.
12.5 ASSIGNMENT: Neither this Agreement nor any of the rights and
obligations hereunder may be assigned by either party hereto without the prior
written consent of the other party; provided, however, that this Agreement may
------------------
be assigned by the Company to any of its affiliates or in connection with any
merger, consolidation or sale of all or substantially all of its assets.
12.6 WAIVER: The waiver by either party of a breach of any provision
contained herein shall be in writing and shall in no way be construed as a
waiver of any succeeding breach of such provision or of the waiver of the
provision itself.
12.7 GOVERNING LAW: This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New Jersey without regard to its
conflicts of law principles.
12.8 HEADINGS: The section or paragraph headings used in this Agreement are
included solely for convenience and shall not affect or be used in connection
with the interpretation of this Agreement.
12.9 AMENDMENTS: No amendments or additions to this Agreement shall be
binding unless the same is in writing and signed by both parties.
12.10 ENTIRE AGREEMENT: This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements with respect to such subject matter.
IN WITNESS WHEREOF, this Agreement has been executed the day and year first
above written.
WITNESS: NEW BRUNSWICK SCIENTIFIC CO., INC.
By: Xxxxx Xxxxxxxx
Title: Chief Executive Officer
Date:
WITNESS:
By: Xxxxxxx Xxxxxxxx
Date:
