EMPLOYMENT AGREEMENT
BETWEEN
NEW BRUNSWICK SCIENTIFIC CO., INC.
AND
XXXXX XXXXXXXX
JANUARY 1, 2002
EMPLOYMENT AND CONSULTING AGREEMENT
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AGREEMENT, made as of the 1st day of January 2002 between NEW BRUNSWICK
SCIENTIFIC, CO., INC., a New Jersey corporation, with its principal place of
business located at 00 Xxxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxx, Xxx Xxxxxx,
00000-0000 (referred to in this Agreement as the "Company") and XXXXX XXXXXXXX,
residing in Highland Park, New Jersey (referred to in this Agreement as
"Xxxxxxxx").
W I T N E S S E T H :
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WHEREAS, the Company currently employs Xxxxxxxx under an Employment
Agreement dated January 1, 1999 which expired December 31, 2001 and
WHEREAS, the Company desires to continue to retain Xxxxxxxx'x ser-vices as
an officer of the Company upon the terms and conditions set forth in this
Agreement, and Xxxxxxxx desires to continue such employment, and
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties agree as follows:
ARTICLE 1
EMPLOYMENT
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1.1 EMPLOYMENT. EMPLOYMENT. The Company hereby employs
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Xxxxxxxx and Xxxxxxxx hereby accepts such employment. Xxxxxxxx will devote his
best efforts and substantially all his full business time and atten-tion to
performing such duties.
1.2 PERFORMANCE OF SERVICES PERFORMANCE OF SERVICES. Xxxxxxxx
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shall ob-serve and comply with such rules, regulations and policies as may be
determined from time to time by the Board of Directors of the Company (the
"Board") in writing, within the scope of his duties.
ARTICLE 2
COMPENSATION
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2.1 SALARY. For his services under this Agreement, Xxxxxxxx shall
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receive a salary, payable in such regular intervals as shall be determined by
the Company, which shall be at the rate of Two Hundred and Sixty-Four Thousand
Six Hundred Dollars ($264,600.00).
2.2 SALARY INCREASES. The rate of salary provided for in Section 2.1
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shall be reviewed by the Board not less often than annually and may be increased
from time to time and in such amount as the Board, in its discretion, may
determine, on the basis of the same criteria used for other executive employees
of the Company.
2.3 BONUS. Xxxxxxxx shall be entitled to participate in bonus programs
or arrangements generally available for executive employees of the Company.
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2.4 WITHHOLDING. All payments of salary, bonuses and other
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compensation for services pursuant to this Agreement shall be subject to the
customary withhold-ing of taxes as required by law.
ARTICLE 3
FRINGE BENEFITSBENEFITS
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3.1 PARTICIPATION IN PLANS. (aFreedman shall be en-titled to all
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additional fringe benefits, including, but not limited to, health and life
insurance programs which may be generally available to other executive employees
of the Compan-y, subject to Section 3.1(c).
(b) Following termination of Xxxxxxxx'x services to the Company as an
employee, for any reason other than a termination pursuant to Section 4.3(b),
the Company shall pay all premiums necessary to continue the medical and life
insurance coverage previously provided to Xxxxxxxx and his spouse under Section
3.1(a), or other comparable coverage, until the death of Xxxxxxxx and his
spouse. However, following his period of service as an employee of the Company,
in place of the health insurance plan generally available for executive
employees of the Company, the Company shall thereafter provide for Xxxxxxxx and
for his spouse a policy of medical insurance that offers coverage as a
supplement to Medicare benefits. The basic terms of such policy shall provide,
in conjunction with Medicare, benefits that are comparable to the coverage
previously provided to Xxxxxxxx as an executive employee of the Company.
(c) All matters of eligibility for coverage of benefits under any plan
or plans of health, hospitalization, life or other insurance provided by the
Company shall be determined in accor-dance with the provisions of the insurance
policies. The Company shall not be liable to Xxxxxxxx, or his spouse or
beneficia-xxxx or other succes-sors, for any amount payable or claimed to be
payable under any plan of insurance. So long as Xxxxxxxx beneficially holds 10%
or more of the Common stock of the Company, he shall not be eligible to
participate in any plan of the Company involving the Common stock or any
derivative security of the Company (although otherwise eligible) where his
participation in that plan would prevent the Common stock or derivative
securities issued under that plan from qualifying for exemption under Section
16(b) of the Securities Exchange Act of 1934, as amended.
3.2 HOLIDAYS AND SICK LEAVE. Xxxxxxxx shall be entitled to such paid
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holidays and sick leave, and other benef-it programs, as and to the extent that
the Company generally provides the same from time to time to other executive
employe-es.
3.3 VACATION AND PROFESSIONAL LEAVE Xxxxxxxx shall be entitled to
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vacation and addition-al leave to attend conven-tions and professional meet-ings
each year during this Agreement as permitted under the employment policies of
the Company in effect at such time.
3.4 BUSINESS EXPENSES3.4 BUSINESS EXPENSES. The parties
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acknowledge that Xxxxxxxx shall incur, from time to time, for the benefit of the
Company and in furtherance of the Company's business, various business expenses.
The Company agrees that it shall either pay such expenses directly, advance sums
to Xxxxxxxx to be used for payment of such expen-ses, or reimburse Xxxxxxxx for
such expenses incurred by him. Xxxxxxxx agrees to submit to the Company such
documen-tation as may be reasonably necessary to substantiate that all expenses
paid or reimbursed hereunder were reasonably related to the performance of his
duties.
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3.5 COMPANY CAR3.5 COMPANY CAR. The Company recognizes
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that Xxxxxxxx -requires the use of an automobile in the performance of his
duties and therefore agrees to furnish an automobile to Xxxxxxxx for his sole
use. Title to such automobile shall at all times remain with the Company. The
automobile will be replaced upon request by Xxxxxxxx, but not more frequently
than every three (3) years. The Company shall pay for the fuel, insurance,
maintenance, and repair costs associated with said automobile, except the cost
of fuel consumed in driving the automobile for personal use. Upon termination
of this Agreement for any reason, the automobile shall be returned to the
Company unless Xxxxxxxx- elects, within thirty (30) days after such
termina-tion, to purchase the automobile from the Company. Any purchase
pur-suant to the preceding sentence shall be at book value unless a lesser price
is mutually agreed to and shall be completed within sixty (60) days after the
termination of this Agreement.
3.6 SPLIT-DOLLAR INSURANCE COVERAGE. The Company and Xxxxxxxx are
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currently parties to a split-dollar life insurance agreement, providing for the
division of rights and obligations in connection with a One Million Dollar
($1,000,000.00) life insurance policy on Xxxxxxxx'x life. The Company and
Xxxxxxxx hereby ratify that agreement and further provide that, following
termination of this Agreement and for remainder of Xxxxxxxx'x life, the Company
will continue to contribute the sum of Forty Thousand Dollars ($40,000.00) (or
the actual amount of the premiums, whichever is less) towards each annual
premium due under such policy, or replacement policy obtained by Xxxxxxxx. The
Company, following the termination of this Agreement, will permit Xxxxxxxx to
borrow against the cash surrender value of the policy, in order to pay his share
of the premiums. The Company's contribution following the termination of this
Agreement shall be taken into account in determining the amount to which the
Company is entitled to receive from the policy proceeds upon Xxxxxxxx'x death.
Except, as specifically set forth in this Section 3.6, all matters regarding the
insurance policy shall be governed by the terms of the split-dollar life
insurance agreement pertaining to the policy.
ARTICLE 4
TERM AND TERMINATION OF EMPLOYMENT
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4.1 EMPLOYMENT TERM4.1 EMPLOYMENT TERM. The employment term
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of this Agreement shall be three (3) years commencing on January 1, 2002 (the
"Employment term"), unless terminated prior to such date in accordance with the
terms of this Agreement.
4.2 TERMINATION. This Agreement shall terminate prior to the
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expira-tion of its term upon occurrence of any one or more of the following
events:
(A) MUTUAL AGREEMENT. The parties may mutually agree to terminate this
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Agreement at any time.
(B) TERMINATION FOR CAUSE. The Company may terminate this Agreement
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for cause at any time. "Cause" shall include, but not be limited to the
following: any material violation of the terms of this Agreement by Xxxxxxxx;
conviction of Xxxxxxxx of any crime (or found criminally liable for any fraud)
against the Company or its property or any crime involving moral turpitude or
reaso-nab-ly likely to bring discredit upon the Company; material failure to
perform or meet reasonable standards of perfor-xxxxx xx-tablished in writing by
the Board of Directors of the Company with respect to Xxxxxxxx'x position; and
any material violation of reasonable operat-ing policy formally adopted by the
Company from time to time. The determination of whether Cause exists shall be
made in good faith by a majority vote of the entire Board.
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(C) DEATH OF XXXXXXXX. This Agreement shall immediately terminate upon
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the death of Xxxxxxxx.
(D) DISABILITY OF XXXXXXXX. In the event that Xxxxxxxx- becomes
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"disabled", as defined below, the Company shall have the option to terminate
this Agreement by giving 30-days' advance written notice to Xxxxxxxx. For
purposes of this Agree-ment, the term "disabled" or "di-sability" shall mean the
inability of Xxxxxxxx to perform his regular duties for the Company for a period
of six (6) consecutive months, as reasonably determined by the Board, in
accordance with uniform rules consis-tently applied to all employees and
supported by the written opinion of at least one (1) physician. For purposes of
this Agreement, Xxxxxxxx shall first be deemed dis-abled on the date that is six
(6) months after the initial onset of his condition, as described above.
4.3 TERMINATION BENEFITS. Following termination of this Agreement or
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any extension thereof or upon Xxxxxxxx'x retirement from the Company, the
Company shall make the following payments to Xxxxxxxx, as applicable, subject,
however, to Sections 2.4 and 4.5, and without limitation on Xxxxxxxx'x rights
and obligations, if any, arising other than under this Agreement:
(A) ACCRUED COMPENSATION. Regardless of the reason for termination of
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this Agreement, the Company shall pay, within a reasonable period of time
following such termination, all compensation payments (including accrued and
unused xxxx-tion compensation) and reimbursement for expenses as may be due,
accrued or payable as of the date of such termination. Following termination of
this Agreement, Xxxxxxxx, or his successors, as the case may be, shall also be
entitled to the fringe benefits as expressly provided in Article 3 with regard
to the period after termination of this Agreement.
(B) DEATH BENEFIT. In the event that this Agreement is terminated by
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reason of Xxxxxxxx'x death, the Company shall pay to Xxxxxxxx'x beneficiary (as
desig-nated in writing by Xxxxxxxx and delivered to the Compan-y during the
lifetime of Xxxxxxxx), or if no such benef-iciary is so designated, then to the
personal representative of Xxxxxxxx'x estate, a death benefit equal to the
annual compensation (exclusive of fringe benefits under Article 3) payable by
the Company to Xxxxxxxx at the time of his death. The payment by the Company
shall be made within forty-five (45) days of such termina-tion of employment.
(C) DISABILITY BENEFIT. In the event that this Agreement is terminated by
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reason of Xxxxxxxx'x disability, the Company shall pay to Xxxxxxxx (or his
personal representative) a disability benefit equal to the annual compensation
(exclusive of fringe benefits under Article 3) payable by the Company to
Xxxxxxxx at the time of such disability. The payment by the Company shall be
made within forty-five (45) days of such termination of employment.
4.4 RETIREMENT. In the event that this Agreement is terminated by
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reason of Xxxxxxxx'x retirement or upon Xxxxxxxx'x retirement upon termination
of this Agreement or any extension thereof, the Company shall pay to Xxxxxxxx a
retirement benefit equal to three (3) times the annual salary payable by the
Company to Xxxxxxxx at the time of such retirement, which shall be payable to
Xxxxxxxx, or his personal representative, over 36 months in equal installments
(without interest) as determined by the Company (but no less frequently than
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monthly), commencing on the first day of the month following the date of
retirement. In the event of Xxxxxxxx'x death after his retirement from the
Company, the Company shall continue to make the balance of the payments to
Xxxxxxxx'x beneficiary (as designated in writing by Xxxxxxxx and delivered to
the Company during Xxxxxxxx'x lifetime), or if no such beneficiary is so
designated, then to Xxxxxxxx'x personal representative.
4.5 LIMIT ON TERMINATION PAYMENTS. In no event shall the amounts
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payable by the Company pursuant to Section 4.4 exceed the amounts that would be
deductible by the Company under the provisions of Section 280G of the Internal
Revenue Code of 1986, as amended. The amount deductible by the Company shall be
determined by the independ-ent auditors regularly retained by the Company.
4.6.1 COMPETITION AFTER RETIREMENT. For one (1) year after the termination
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of this Agreement or upon his retirement, Xxxxxxxx shall not advertise or offer
services or perform services or otherwise be engaged or interested in any way,
directly or indirectly, as proprietor, partner, officer, director, stockholder
(except as the owner of up to 1% of the voting securities of a publicly held
corporation), consultant, advisor, employee, principal, agent, representative,
or in any other capacity, in any business or other activity which is in any way
competitive with the business and activities of the Company or any of its
subsidiaries.
ARTICLE 5
MISCELLANEOUS
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5.1 ASSIGNMENT PROHIBITED. This Agreement is personal to Xxxxxxxx
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hereto and he may not assign or delegate any of his rights or obligations
hereunder without first obtaining the written consent of the Company. The
Company may not assign this Agreement without the written consent of Xxxxxxxx,
except in connection with (i) a merger or consolidation of the Company (in which
case the merged or consolidated entity shall remain fully liable for its
obligations as the Company under this Agreement), or (ii) a transfer of this
Agree-ment to a subsidiary or affiliate, provided that the subsidiary or
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af-filiate continues the primary business of the Company, and further, provided
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that, in the case of a transfer to a sub-sidiary or affiliate, the Company shall
remain liable for its obliga-tions under this Agreement.
5.2 AMENDMENTS. No amendments or additions to this agre-ement shall be
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binding unless in writing and signed by the party against whom enforcement of
such amend-ment or addition is sought.
5.3 PARAGRAPH HEADINGS. The paragraph headings used in this Agreement
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are included solely for convenience and shall not affect or be used in
connection with the interpretation of this Agree-ment.
5.4 LEGAL EXPENSES OF ENFORCEMENT. If either party commen-ces a legal
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action or other proceeding for enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees and other costs incurred in connection with that
action or proceeding, in addition to any other relief to which it may be
entitled.
5.5 SEVERABILITY. If any provision of this Agreement is declared
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invalid by any tribunal, then such provision shall be deemed automatically
modified to conform to the requirements for validity as declared at such time,
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and as so modified, shall be deemed a provision of this Agreement as though
origin-ally included herein. In the event that the provision invalid-ated is of
such a nature that it cannot be so modified, the provision shall be deemed
deleted from this Agreement as though the provision had never been included
herein. In either case, the remaining provisions of this Agreement shall remain
in effect.
5.6 ARBITRATION. Any controversy, claim or dispute arising out of or
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relating to this Agreement or its construc-tion and interpretation shall be
settled by arbitration in accordance with the rules of the American Arbitration
Associa-tion, and judgment upon the award rendered in such arbitration may be
entered in any court having jurisdic-tion thereof. In addition, any
controversy, claim or dispute concerning the scope of this arbitration clause or
whether a particular dis-pute falls within this arbitration clause shall also be
settled by arbitration in accordance with the rules of the American Arbitra-tion
Association.
5.7 CHOICE OF LAW. This Agreement shall be governed by and construed
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in accordance with the laws of the State of New Jersey.
5.8 OTHER AGREEMENTS. This Agreement is not intended to and shall not
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affect the rights and obligations of the Company or Xxxxxxxx under any other
agreement between them, pertaining to stock option rights, severance benefits,
or otherwise.
5.9 NOTICES. All notices required or permitted hereunder shall be in
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writing and shall be delivered in person or sent by certified or registered
mail, return receipt re-quested, postage prepaid to each party at the address
first written above or at such other address as provided in writing.
5.10 BINDING EFFECT. This Agreement shall be binding upon, and inure
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to the benefit of, the parties, their heirs, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ATTEST: NEW BRUNSWICK SCIENTIFIC CO., INC.
[Corporate Seal]
By:_____________________
Xxxxx X. Xxxxxx
_______________________
Secretary
_______________________ ______________________
Witness Xxxxx Xxxxxxxx
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