Employment Agreement
This Employment Agreement dated May 18, 2012
(the "Agreement") by and between ALTAMIRA INSTRUMENTS, INC,
a Delaware corporation (the "Company"), and XXXXXXXX P. MARCH,
who resides at 000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000
("March").
WITNESSETH:
WHEREAS, the Company has employed March pursuant to
various Employment Agreements, the most recent dated October 15, 2010,
providing for his employment through June 30, 2012 (collectively, the
"Employment Agreement"); and
WHEREAS, the Company and March desire to continue his
employment beyond June 30, 2012 pursuant to this Agreement which will
supersede commencing with the Effective Date all provisions of the
Employment Agreement.
NOW, THEREFORE, it is hereby agreed as follows:
1. Employment: The Company hereby continues the employment
of March for the Term as defined in Paragraph 2 below to perform the
duties described in Paragraph 3 hereof, as President and Director of
Sales and Marketing. As an officer of the Company he shall be entitled
to the rights to indemnification provided to officers of the Company
pursuant to its By-laws.
2. Employment Term: This Agreement shall be effective as
of June 1, 2012 ("Effective Date") and shall continue through June 30,
2014. It may continue thereafter for additional one-year terms with
the mutual consent of the Company and March, which shall be evidenced
in writing 90 days or more prior to the end of the previous term. The
period of employment from the date hereof until the last date of
employment (the "Termination Date") pursuant to this Agreement is herein
referred to as (the "Term").
3. Employee Duties: March shall devote his full time and
attention to the business and affairs of the Company and its subsidiaries,
performing duties substantially similar to the duties he has performed
during the 12-month period ended the date hereof, as well as such
additional duties reasonably designated by the Chief Executive Officer
of the Company (the "CEO"), with limits of authority clearly designated.
March shall report directly to the CEO. March will perform his duties
at the office of the Company in Pittsburgh, Pennsylvania or at such
offsite locations as March may reasonably determine his duties may be
performed including travel from time to time, as is reasonable and
customary.
4. Salary: As compensation hereunder for the duties set
forth in Paragraph 3, March shall be paid by the Company a salary at
the rate of $131,000 per annum for the year ending ended June 30, 2013
and $135,000 per annum for the year ending June 30, 2014. At the sole
and absolute discretion of the Board of Directors, the Company may pay
March a bonus in addition to the foregoing compensation in recognition
of his services and the results of the Company's operation for each of
the twelve month periods ending ending June 30, 2013 and June 30, 2014.
March shall be eligible to be granted stock options under the Stock
Option Plan of the Company's parent, Scientific Industries, Inc. ("SI")
or any other plan SI may adopt.
5. Expenses: March is authorized to incur reasonable and
necessary expenses in connection with the discharge of his duties
hereunder and in promoting the business of the Company. The Company
will provide March with, or reimburse him for, a cellular phone, all
expenses incurred for operating a laptop computer and wireless
connection and suitable software thereon, home fax, an American Express
Card annual fee, and dues for membership in one related professional
organization, upon presentation on a timely basis of a properly
itemized account of such expenditures. All equipment provided to
Employee by the Company is the property of the Company.
6. Other Benefits:
a. During the Term, March shall be entitled to
receive from the Company such medical, hospital, dental, life and
disability benefits consistent with those provided to other employees
of the Company or of SI.
b. March shall accrue annual vacation of 3 weeks
during each fiscal year during the Term.
7. Termination:
a. In the event of March's death during the Term, this
Agreement shall terminate automatically as of the date of death, except with
respect to any accrued but unsatisfied obligation as to salary, benefits and
expense reimbursement to the date of death.
b. In the event of March?s Disability (as hereinafter
defined) during the Term and continuing for thirty (30) consecutive calendar
days or sixty (60) calendar days in the aggregate during any twelve (12)
consecutive months, the Company shall have the right, by written notice to
March, to terminate this Agreement as of the date of such notice, except
(i) Paragraphs 8 and 9 shall remain in full force and effect, and (ii) with
respect to any accrued but unsatisfied obligation as to salary, benefits and
expense reimbursements under this Agreement to the date of such termination.
"Disability" for the purposes of this Agreement shall mean March?s physical
or mental disability so as to render him incapable of carrying out his
essential duties under this Agreement.
c. The Company has the right to discharge March during
the Term and terminate this Agreement for any reason. If such
termination is made, notice in writing shall be given as set forth in
Paragraph 12.
(i). If such termination is other than for Cause as
defined in Paragraph 7(c)(ii), the Company shall pay to March severance
payments equal to one year's salary at the rate of the compensation March
is receiving at the time of termination. All such severance payments shall
be payable bimonthly over the following 12 months and March shall receive
the benefits set forth in Paragraph 6(a), for a period of two years from
termination.
(ii). If such discharge is for "Cause" as hereinafter
defined this Agreement shall terminate, except Paragraphs 8 and 9 shall
remain in full force and effect, upon the failure of March to cure the
Cause by the end of the 30 day period following delivery of written
notice of such termination to March setting forth the Cause. For the
purpose of this Agreement, "Cause" shall mean (i) conviction of a felony
or (ii) gross neglect or gross misconduct (including conflict of
interest) in the carrying out of March's duties under this Agreement.
In the event of a termination by the Company pursuant to this Paragraph
7(c)(ii), the Company shall not be under any further obligation to March
hereunder except to pay March, subject to the rights and remedies of the
Company under the circumstances, (x) salary and benefits accrued and
payable up to the date of such termination, and (y) reimbursement for
expenses accrued and payable under Paragraph 5 hereof through the date
of termination.
d. March may terminate this Agreement for any reason
or no reason upon 90 days written notice as set forth in Paragraph 12,
and all compensation and benefits shall cease upon such 90th date, but
not beyond the date his employment would have terminated absent such
notice.
8. Non-Competition:
a. Subject to the Company not then being in default
of its obligations under this Agreement, March agrees that for a period
ending on a date which is two years following the last day of his
employment by the Company or a subsidiary of the Company (the "Non-
Competition Period"), he shall not:
i. engage directly or indirectly in the "Restricted Area" as
defined below in the business of developing, producing, marketing or
selling catalytic research instruments or components, laboratory
equipment products or items or bioprocessing products or systems
which the Company during the Term has advised March, that the Company,
SI or any of their subsidiaries intends to produce or sell
(collectively the "Non-Competition Activities") or;
ii. perform services (including without limitation as an employee,
independent contractor, officer, director or consultant) for, or
otherwise be engaged by or have any financial interest in or affiliation
with any individual corporation, partnership or any other
entity involved in the Non-Competition Activities ("Competitor Entity") or;
iii. own, along with his affiliates, including parents, siblings and
members of their families, directly or indirectly (the "March
Group"), at least 2% in the aggregate of the outstanding equity interests
of any Competitor Entity; provided, however, that nothing contained
in this Paragraph 8(a) shall prevent March from purchasing as an
investment securities of any corporation whose securities are regularly
traded on any national securities exchange or in the over-the-counter
market if such purchase would not result in the March Group owning at
the time of the purchase more than 3% of the outstanding equity interests
of the Competitor Entity.
iv. Restricted Area shall mean the United States or any other nation
in which the Company, SI or a subsidiary of the Company or SI engages or,
to his knowledge, intends to engage in a Non-Competition Activity.
b. During the Non-Competition Period and subject to
the Company's not being in breach of the terms of this Agreement, March
shall not solicit or induce any employee of the Company, SI or a subsidiary
of the Company or SI to leave its employ.
c. If the final judgment of a court of competent
jurisdiction declares that any term or provision of Paragraphs 8(a) or (b)
above, is invalid or unenforceable, the parties to this Agreement agree
that the court making the determination of invalidity or unenforceability
shall have the power to reduce the scope, duration or area of the term or
provision, to delete specific words or phrases, or to replace any invalid
or unenforceable term or provision with a term or provision that is valid
and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified.
9. Confidential Information.
a. March agrees that during and after the Term he
will not, directly or indirectly, disclose to any person, or use or
otherwise exploit for the benefit of March or for the benefit of anyone
other than the Company, SI or a subsidiary of the Company or SI
(collectively the "Company Group") any Confidential Information (as
defined in Section 9(c)). March shall have no obligation hereunder to
keep confidential any Confidential Information if and to the extent
disclosure thereof is specifically required by law; provided, however,
that in the event disclosure is required by applicable law, March
shall provide the Company with prompt notice of such requirement,
prior to making any disclosure, so that the Company on behalf of
itself or the applicable member of the Company Group may seek an
appropriate protective order.
b. At the request of the Company, March agrees to
deliver to the Company at any time during the Term, or thereafter, all
Confidential Information which March may possess or control. March
agrees that all Confidential Information of a Company Group member
(whether now or hereafter existing) conceived, discovered or made by
March during the Term exclusively belongs to the relevant Company Group
member (and not to March). March will promptly disclose such Confidential
Information to the Company Group member and perform all actions reasonably
requested by the relevant Company Group member to establish and confirm
such exclusive ownership.
c. "Confidential Information" means any information
including, without limitation, any patent, patent application, copyright,
trademark, trade name, service xxxx, service name, "know-how", trade
secrets, customer lists, vendor lists, customer pricing or terms, details
of client or consultant contracts, pricing policies, cost information,
operational methods, marketing plans or strategies, product development
techniques or plans, business acquisition plans or any portion or phase
of any business, scientific or technical information, ideas, discoveries,
designs, computer programs (including source or object codes), processes,
procedures, formulae, improvements, information relating to the products
currently being sold, developed or contemplated, by the Company Group
member, or which hereinafter may be sold, developed or contemplated, by
the Company Group member through the date of termination of March's
employment, including, but not limited to, catalytic research instruments,
mixers, including vortex mixers, rotating, shaking or oscillating
apparatus, thermoelectric apparatus, or bioprocessing systems or
products; or any industrial or laboratory processes, apparatus or
equipment relating thereto (the "Products") or other proprietary or
intellectual property of the Company Group member, whether or not in
written or tangible form, and whether or not registered, and including
all memoranda, notes, summaries, plans, reports, records, documents
and other evidence thereof. The term "Confidential Information"
does not include, and there shall be no obligation hereunder with respect
to, information that becomes generally available to the public other than
as a result of a disclosure by March not permissible hereunder.
10. Key Man Insurance. March agrees to cooperate with the
Company obtaining and maintaining during the Term at its expense a term
insurance policy on his life with the Company as the sole beneficiary in
such principal amount as may be determined by the Board of Directors
of the Company, currently anticipated to be $350,000.
11. For Hire. The Company shall own forever and throughout
the world all rights of any kind or nature now or hereafter known in and to
all of the product of March's employment hereunder in any capacity and any
and all parts thereof relating to the line of business of the Company or a
Company Group Member as conducted during any period of March's employment,
including, without limitation, patents (exclusively during the current and
renewed or extended term of the patent issued anywhere in the world and
thereafter, non-exclusively), trade names, trademarks, copyrights and all
other property or proprietary rights in or to any ideas, concepts, designs,
drawings, plans, prototypes or any other similar creative works and to
the product of any or all of such services, March acknowledging and
agreeing that for the foregoing purposes, March is performing his services
as the Company?s employee-for-hire. Without limiting the generality of
the previous sentence, March acknowledges and agrees that all memoranda,
notes, records and other documents made or compiled by March or made
available to March during his employment by the Company concerning the
business of the Company or of a Company Group member shall be the
property of the Company or of a Company Group member, as the case may be,
and shall be delivered by March to the Company or Company Group Member,
upon termination of this Agreement or at any other time at the Company's
or the member's request.
12. Notices. Any notices pertaining to this Agreement if to
the Company shall be addressed to Altamira Instruments Inc., c/o Scientific
Industries Inc., 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx, 00000, attention:
Chief Executive Officer, with a copy of any notice to the Company
to be sent to Xxx Xxxxxxxxxxx, Esq., Xxxxxxx Xxxxxx & Xxxxxxxxxx LLC,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and if to March shall be
addressed to him at his address stated in the opening Paragraph of
this Agreement, with a copy of any notice to March to be sent to
Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP, Attention: Xxxxxxx X. Xxxxxx,
Esq. 0000 Xxxxx Xxxxxx Place, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000. All notices shall be in writing and shall be deemed duly
given if personally delivered or sent by registered or certified mail,
overnight or express mail or by telefax. If sent by registered or
certified mail, notice shall be deemed to have been received and
effective three days after mailing; if by overnight or express mail or by
telefax, notice shall be deemed received the next business day after
being sent. Any party may change its address for notice hereunder by
giving notice of such change in the manner provided herein.
13. Entire Agreement. This Agreement contains the entire
agreement of the parties respecting the subject matter contained herein.
No modification of any provision hereof shall be effective except by a
written agreement signed by the parties hereto. This Agreement may be
executed in counterparts (each of which may be transmitted via facsimile)
with the same effect as if all parties had signed the same document, and
all counterparts shall be construed together and shall constitute the
same instrument.
14. Miscellaneous.
a. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania applicable
to contracts entirely made and performed therein.
b. This Agreement shall be binding upon and inure to
the benefit of the parties, their respective successors, heirs and assigns
(where permitted).
c. The waiver by one party hereto of any breach by the
other (the "Breaching Party") of any provision of this Agreement shall not
operate or be construed as a waiver of any other (prior or subsequent) breach
by the Breaching Party, and waiver of a breach of a provision in one
instance shall not be deemed a waiver of a breach of such provision in any
other circumstance.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the year and date first above written.
ALTAMIRA INSTRUMENTS, INC.,
By /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Title: CEO
XXXXXXXX P. MARCH
/s/ Xxxxxxxx P. March
_____________________
