EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of July 1, 2017, is by and
between SCIENTIFIC INDUSTRIES, INC., a Delaware corporation with
its principal executive offices at 00 Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxx Xxxx 00000 (the “Company”) and XXXXXX X.
XXXXXX, an individual residing at 00 Xxxxx Xxxxx, Xxxxxx, Xxx Xxxx
00000 (“Employee”).
W I T N E S S E T H:
WHEREAS,
the Company desires to continue to employ Employee as a senior
executive of the Company, and Employee desires to continue to serve
in such capacity, all on the terms and conditions set forth
below.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Retention of Services; Term.
The Company hereby retains the services of Employee, and Employee
agrees to furnish such services, upon the terms and conditions
hereinafter set forth. Subject to earlier termination on the terms
and conditions hereinafter provided, and further subject to certain
provisions hereof which survive the term of the employment of
Employee by the Company, the term of this Agreement shall be
comprised of a three year period of employment commencing on July
1, 2017 and ending on June 30, 2020 (the “Initial
Term”), and shall be extended thereafter for two additional
one-year periods (each an “Additional Term”, and
together with the Initial Term, the “Term”) unless or
until the Company or Employee provides no less than 90 days’
prior notice to the other party of the termination of this
Agreement at the end of the then-current Term.
2. Duties and Extent of Services During
Period of Employment.
During the Term, Employee shall: (a) remain employed by the Company
as President, Chief Executive Officer and Chief Financial Officer
of the Company; (b) perform such duties and services as are
commensurate with Employee’s positions; (c) devote
Employee’s full business time and exclusive business efforts
to serving the Company; (d) perform all duties incident to
Employee’s position to the best of Employee’s ability
and in compliance with the policies and procedures of the Company,
applicable law and past practice with respect to Employee’s
responsibilities; and (e) perform all of Employee’s
responsibilities and duties hereunder in Western or Central Suffolk
County, Long Island, New York, subject, however, to the reasonable
travel requirements of Employee’s position, which travel
requirements may include visits or occasional work at other offices
of the Company from time to time.
3. Remuneration. During the Term,
the Company shall pay to Employee as compensation for
Employee’s services hereunder:
(a) a base salary equal
to $175,000 per annum for the period from the date hereof through
June 30, 2018, payable in a manner consistent with the
Company’s payroll practices, which amount shall increase
thereafter on first day of each fiscal year, commencing as of July
1, 2018, by the greater of (i) three percent (3%) per annum, or
(ii) the percentage increase, if any, in the Consumer Price Index
for all urban consumers as published by the U.S. Bureau of Labor
Statistics (“CPI”) at the end of the immediate
preceding year over the CPI as of the beginning of such year
(measured in each case from the nearest date on or prior to the
relevant anniversary date of the Term for which CPI data is
published);
(b) an annual bonus of
$25,000 for the fiscal year ending June 30, 2018, if Employee is
employed by the Company as of such date, and, for each subsequent
fiscal year, such bonus or bonuses as may be determined by the
Board of Directors of the Company (the “Board”), or the
compensation committee thereof (the “Compensation
Committee”), in its sole discretion, in each case payable not
later than the 97th day of the next
fiscal year; and
(c) As soon as
reasonably practicable following the date of this Agreement, the
Company shall grant to Employee non-qualified options (the
“Stock Options”) to purchase up to 25,000 shares of
common stock of the Company, par value $.05 per share (the
“Common Stock”), exercisable at an exercise price equal
to the fair market value of the shares of Common Stock on the date
of grant, pursuant to the Company’s 2012 Stock Option Plan,
as amended (the “Plan”). The Stock Options will (i)
have a ten-year term, including for the maximum period after any
termination of Employee’s employment by the Company permitted
under the Plan, and (ii) become exercisable one-third on each of
the first, second and third anniversaries of the date of grant;
provided, however, such vesting shall be accelerated by 12 months
upon the occurrence of a Change in Control (as defined below) and
shall contain a cashless exercise provision.
4. Employee Benefits;
Expenses.
(a) During the Term,
the Company shall provide to Employee the right to participate in
the Company’s then existing medical and dental insurance and
all other employee benefit plans and policies on the same terms as
are then generally available to the Company’s senior
executive employees, and not less than as currently provided to
Employee, including without limitation, medical insurance,
disability insurance, life insurance, holiday and sick pay, and the
right to participate in and receive matching contributions pursuant
to the Company’s plan under Section 401(k) of the Internal
Revenue Code.
(b) Employee shall be
entitled to paid vacation each calendar year during the term of
this Agreement at the rate of twenty (20) days per annum. Vacation
shall be taken each year and, if not taken, up to two weeks of
unused vacation days shall be carried over for up to a maximum
aggregate of 35 days carried over. In the event that
Employee’s employment by the Company is terminated for any
reason whatsoever, the Company shall pay to Employee an amount
equal to the number of carried over vacation days’ times
Employee’s then-current daily rate of salary pursuant to
Section 3(a) above, upon such termination. Employee shall also be
entitled to six (6) personal days per fiscal year during the Term.
In the event that Employee does not use all such personal days, the
Company shall pay to Employee for up to three of unused days’
times Employee’s then-current daily rate of salary pursuant
to Section 3(a) above.
(c) The Company shall
reimburse Employee, in accordance with the practice followed from
time to time for other executive officers of the Company, for a
cellular telephone, a laptop computer, including all expenses
relating to operating a laptop computer and wireless connections
and suitable software thereon, and all reasonable and necessary
business and traveling expenses and other disbursements incurred by
Employee for or on behalf of the Company in the performance of
Employee’s duties hereunder, upon presentation by Employee to
the Company of an appropriate documentation of such.
5. Disability.
This Agreement may be terminated at the option of the Company if,
as a result of any physical or mental disability, Employee is
unable to perform substantially all of Employee’s major
duties hereunder for a continuous period of four months or at least
90 days in any consecutive period of 180 days. Employee shall
continue to receive Employee’s full salary plus bonus
payments payable to Employee under Section 3 hereof regardless of
any illness or incapacity, unless and until this Agreement is
terminated. If Employee’s employment is terminated pursuant
to this Section 5, Employee (or Employee’s personal
representative, in the case of Employee’s death) shall be
entitled to receive Employee’s full salary through the
effective date of termination.
6.
Confidential Information; Proprietary
Rights.
(a) In
the course of Employee's employment by the Company, Employee will
have access to and possession of valuable and important
confidential or proprietary data or information of the Company.
Employee will not, during Employee's employment by the Company or
at any time thereafter, divulge or communicate to any person, nor
shall Employee direct any other employee, representative or agent
of the Company to divulge or communicate to any person or entity
(other than to a person or entity bound by confidentiality
obligations similar to those contained herein and other than as
necessary in performing Employee’s duties hereunder) or use
to the detriment of the Company, or for the benefit of any other
person or entity, including, without limitation, any competitor,
supplier, licensor, licensee or customer of the Company, any of
such confidential or proprietary data or information or make or
remove any copies thereof, whether or not marked or otherwise
identified as “confidential” or “secret.”
Employee shall take all reasonable precautions in handling the
confidential or proprietary data or information within the Company
to a strict need-to-know basis and shall comply with any and all
security systems and measures adopted from time to time by the
Company to protect the confidentiality of confidential or
proprietary data or information.
(b) The
term "confidential or proprietary data or information" as used in
this Agreement shall mean information not generally available to
the public, including, without limitation, any patent, patent application, license,
sublicense, 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, or which hereinafter may be sold, developed or
contemplated, by the Company through the date of termination of
this Agreement, including, but not limited to, the proprietary or
intellectual property of the Company, 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. Notwithstanding the foregoing, data
or information shall not constitute "confidential or proprietary
data or information" hereunder if it:
(i) is or becomes part
of the public domain other than due to the breach of this Agreement
by Employee;
(ii) is
already known to Employee on a non-confidential basis at the time
of disclosure by the Company;
(iii) becomes
known to Employee from a source other than the Company, provided
that such source has not entered into a confidentiality agreement
with the Company with respect to such information or obtained the
information from an entity or person who is a party to a
confidentiality agreement with the Company, and without a breach of
this Agreement or without a breach of duty owed by any other person
or entity to the Company;
(iv) is
proven by competent evidence by Employee that it was independently
conceived or discovered by Employee without reference to or use of
the Company’s confidential or proprietary information;
or
(v) is required by law
to be disclosed by Employee.
(c) Employee
will at all times promptly disclose to the Company in such form and
manner as the Company may reasonably require, any inventions,
improvements or procedural or methodological innovations,
including, without limitation, those relating to programs, methods,
forms, systems, services, designs, marketing ideas, products or
processes (whether or not capable of being trademarked, copyrighted
or patented) conceived or developed or created by Employee during
or in connection with Employee’s employment with the Company
and which relate to the business of the Company (the "Intellectual
Property"). Employee agrees that all such Intellectual Property
shall be the sole property of the Company. Employee hereby assigns
all of Employee’s right, title and interest to the
Intellectual Property to the Company. Employee further agrees that
Employee will execute such instruments and perform such acts as may
reasonably be requested by the Company to transfer to and perfect
in the Company all legally protectable rights in such Intellectual
Property. To the extent any moral rights or other Intellectual
Property rights are not legally transferable to the Company,
Employee hereby waives and agrees to never assert any such rights
against the Company or any of its affiliates, even after
termination of employment with the Company.
(d) All
written materials, books, records and documents made by Employee or
coming into Employee’s possession during Employee’s
employment by the Company concerning any products, processes or
systems used, developed, investigated, purchased, sold or
considered by the Company or otherwise concerning the business or
affairs of the Company, including, without limitation, any files,
customer records such as names, telephone numbers, addresses and
e-mail addresses, lists, firm records, brochures and literature,
shall be the sole property of the Company, shall not be removed
from the Company’s premises or transmitted to third parties
by Employee, and upon termination of Employee’s employment by
the Company, or upon request of the Company during Employee’s
employment by the Company, Employee shall promptly deliver the same
to the Company. In addition, upon termination of Employee’s
employment by the Company, Employee will deliver to the Company all
other Company property in Employee’s possession or under
Employee’s control, including, but not limited to, financial
statements, marketing and sales data, customer and supplier lists
and information, account lists and other account information,
database information, plans, designs and other documents, and
Employee shall not retain any electronically stored versions of the
same.
(e)
During the term of this Agreement, Employee shall comply in all
respects with all applicable federal and state securities laws,
including without limitation with respect to xxxxxxx xxxxxxx, and
all policies and codes of conduct or ethics of the Company and its
affiliates with respect thereto.
7.
Non-Competition; Non-Interference;
Non-Solicitation.
(a)
During the Term and for a period of twelve months thereafter (the
"Restricted Period"), Employee shall not, without the written
consent of the Company, directly or indirectly, become associated
with, render services to, invest in, represent, advise or otherwise
participate in as an officer, employee, director, stockholder,
partner, member, promoter, agent of, consultant for or otherwise,
any business, wherever conducted, which is directly competitive
with the business conducted by the Company; or (ii) for
Employee’s own account or for the account of any other person
or entity (A) interfere with the Company’s relationship with
any of its suppliers, customers, accounts, brokers, representatives
or agents or (B) solicit or transact any business with any
customer, account or supplier of the Company who or which transacts
or has transacted business with the Company at any time during the
Term; or (iii) employ or otherwise engage, or solicit, entice or
induce on behalf of Employee or any other person or entity, the
services, retention or employment of any person who has been an
employee, principal, partner, stockholder, sales representative,
trainee, consultant to or agent of the Company within one year of
the date of such offer or solicitation. Notwithstanding any
provisions in this Section 7, (1) this Section 7 shall not prohibit
Employee from purchasing or owning up to five percent (5%) of the
outstanding capital stock of a company which is listed or
authorized for trading on any national securities exchange, Nasdaq
or the over-the-counter markets or has a class of securities
registered under Section 12 of the Securities Act of 1934, as
amended and (2) to the extent not inconsistent with
Employee’s obligations under this Agreement, Employee may
engage in charitable or civic activities and make passive
investments in businesses which are not competitive with the
business of the Company.
(b) If
any one or more of the restrictions contained in this Section 7
shall for any reason be held to be unreasonable with regard to
time, duration, geographic scope or activity, the parties
contemplate and hereby agree that such restriction shall be
modified and shall be enforced to the full extent compatible with
applicable law. The parties hereto intend that the covenants
contained in this Section 7 shall be deemed a series of separate
covenants for each country, state, county and city. If, in any
judicial proceeding, a court shall refuse to enforce all the
separate covenants deemed included in this Section 7 because, taken
together, they cover too extensive a geographic area, the parties
intend that those of such covenants (taken in order of the cities,
counties, states and countries therein which are least populous)
which if eliminated would permit the remaining separate covenants
to be enforced in such proceeding shall, for the purpose of such
proceeding, be deemed eliminated from the provisions of this
Section 7.
8. Remedies.
Employee acknowledges that the covenants contained in Sections 6
and 7 are fair and reasonable in order to protect the
Company’s business and were a material and necessary
inducement for the Company to agree to the terms of this Agreement
and to the employment of Employee by the Company. Employee further
acknowledges that any remedy at law for any breach or threatened or
attempted breach of the covenants contained in Sections 6 and 7 may
be inadequate and that the violation of any of the covenants
contained in Sections 6 and 7 will cause irreparable and continuing
damage to the Company. Accordingly, the Company shall be entitled
to specific performance or any other mode of injunctive and/or
other equitable relief to enforce its rights hereunder, including,
without limitation, an order restraining any further violation of
such covenants, or any other relief a court might award, without
the necessity of showing any actual damage or irreparable harm or
the posting of any bond or furnishing of other security, and that
such injunctive relief shall be cumulative and in addition to any
other rights or remedies to which the Company may be entitled. The
covenants in Sections 6 and 7 shall run in favor of the Company and
its affiliates, successors and assigns. The provisions of Sections
6 and 7 and this Section 8 shall survive the termination of this
Agreement.
9.
Termination.
(a) The
Company may terminate Employee’s services hereunder "for
cause" by delivering to Employee not less than ten (10) days prior
to the date on which the termination is to be effective, a written
notice of termination for cause specifying the act, acts or failure
to act that constitute the cause. For the purposes of this
Agreement, “for cause” shall mean: (i) any act of
material fraud or embezzlement, (ii) commission by Employee of any
felony or entry of a plea of nolo contendere to a felony charge;
(iii) commission by Employee of a crime involving moral turpitude
or any knowing violation of any federal or state banking or
securities law, (iii) any repeated refusal by Employee to perform
Employee’s duties consistent with the terms of this Agreement
after reasonable notice and opportunity to cure, (iv) any material
breach by Employee of this Agreement, if such material breach, if
capable of cure, is not cured within twenty (20) days after written
notice thereof, (v) the gross negligence or gross misconduct
(including conflict of interest in carrying out Employee's duties
under this Agreement), or (vi) the death of Employee.
(b) If
(i) the Company terminates Employee’s employment hereunder
"for cause" as set forth in Section 9(a) hereof or (ii) Employee
voluntarily terminates Employee’s employment by the Company
other than for “Good Reason” (as defined below), the
Company shall pay to Employee any unpaid compensation payable
pursuant to Section 3 hereof, which payment (y) shall include all
compensation earned up until and including the date on which the
termination is effective, and (z) shall be made within 30 days
after the termination date, and no other compensation shall be
payable to Employee.
(c) If
the Company terminates Employee’s employment hereunder for
any reason other than "for cause" as set forth in Section 9(a)
hereof, including by non-renewal of the Term, or Employee
terminates Employee’s employment hereunder for “Good
Reason” (as defined below), the Company shall pay to Employee
compensation payable pursuant to Section 3(a) hereof, as specified
herein, for one calendar year from the date of termination (the
“Severance Payments”), including any accrued but unused
vacation and sick time as of the termination date pursuant to
Section 4(b), and provide the Employee with health insurance
benefits at the cost of the Company for one year after date of
termination; provided, however, that no
Severance Payments shall be paid to Employee if Employee is paid
the Change of Control Payment (as defined below). Employee and the
Company acknowledge that the foregoing provisions of this Section
9(c) are reasonable and are based upon the facts and circumstances
of the parties at the time of entering into this Agreement, and
with due regard to future expectations.
(d) Resignation
for Good Reason. Employee may terminate Employee 's
employment hereunder for "Good Reason". For purposes of this
Agreement, "Good Reason" shall mean (i) a substantial diminution or
change of the duties of the Employee which is materially
inconsistent with Employee's duties and services provided for in
Section 2 hereof, (ii) a material breach by the Company of this
Agreement after notice and such breach has not been cured within
twenty days after receipt of such notice, or (iii) any purported
termination by the Company of Employee's employment otherwise than
expressly permitted by this Agreement.
10. Change
of Control.
(a) In the event that
Employee’s employment is terminated by the Company, or any
successor thereof, for any reason other than "for cause" as set
forth in Section 9(a) hereof, or Employee terminates
Employee’s employment hereunder for Good Reason, within one
year following a Change in Control (as defined below), Employee
shall have the right to immediately receive as a lump sum payment
an amount equal to three (3) times the average of the total annual
compensation paid by the Company to Employee, with respect to the
five fiscal years of the Company immediately prior to the Change of
Control, minus $1.00 (the “Change of Control
Payment”).
(b)
For purposes of this Agreement, a “Change in Control”
of the Company shall be deemed to have taken place (A) if as the
result of, or in connection with, any cash tender or exchange
offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing
transactions, the persons who were directors of the Company within
twelve months before such transaction shall cease to constitute a
majority of the Board of the Company of any successor entity; (B)
the consummation of a merger or consolidation of the Company, with
or into another entity or any other corporate reorganization, if
more than 50% of the combined voting power of the contributing or
surviving entity’s issued shares or securities outstanding
immediately after such merger, consolidation or other
reorganization is owned beneficially by persons other than the
shareholders who owned beneficially more than 50% of the combined
voting power of the Company’s securities immediately prior to
such merger, consolidation or other reorganization; (C) the sale,
transfer of other disposition of all or substantially all of the
Company’s assets.
11. Indemnification;
Insurance.
(a) The
Company agrees to indemnify Employee and hold Employee harmless
against any and all losses, claims, damages, liabilities and costs
(and all actions in respect thereof and any legal or other expenses
in giving testimony or furnishing documents in response to a
subpoena or otherwise), including, without limitation, the
reasonable costs of investigating, preparing or defending any such
action or claim, whether or not in connection with litigation in
which Employee is a party, as and when incurred, directly or
indirectly caused by, relating to, based upon or arising out of any
work performed by Employee in connection with this Agreement to the
full extent permitted by the Delaware General Corporation Law and
by the Certificate of Incorporation and Bylaws of the Company, as
may be amended from time to time.
(b) The
indemnification provision of this Section 11 shall be in addition
to any liability which the Company may otherwise have to
Employee.
(c) If
any action, proceeding or investigation is commenced as to which
Employee proposes to demand such indemnification, Employee shall
notify the Company with reasonable promptness. The Company shall
have the right to retain counsel of its own choice to represent
Employee, subject to Employee’s reasonable consent, and the
Company shall pay all reasonable fees and expenses of such counsel;
and such counsel shall, to the fullest extent consistent with such
counsel’s professional responsibilities, cooperate with the
Company and any counsel designated by the Company. The Company
shall be liable for any settlement of any claim against Employee
made with the Company’s written consent, to the fullest
extent permitted by the Delaware General Corporation Law and any
other applicable law, the Certificate of Incorporation and Bylaws
of the Corporation, as may be amended from time to time. No such
settlement of any claim shall be made by Employee without the
written consent of the Company.
(d) Further,
the Company agrees to include Employee
in the coverage of any directors' and officers' liability it
provides on behalf of its directors or senior executive officers
and, if Employee is a fiduciary under a Company plan, coverage
under the applicable fiduciary liability insurance policy. Employee
agrees to cooperate with the Company in the Company's efforts to
obtain and maintain a term insurance policy on the life of Employee
with the Company as sole beneficiary in such principal amount as
may be determined by the Board.
12. Taxes
and Compliance with Section 409A.
(a)
This Agreement is intended to comply with Section 409A of the
Internal Revenue Code (the “Code”) (as amplified by any
regulations promulgated thereunder (the “Treasury Regulations”) or other
Internal Revenue Service or U.S. Treasury Department guidance), and
shall be construed and interpreted in accordance with such intent.
If either the Company or Employee reasonably determine that the
Agreement does not meet the requirements of Code Section 409A and
that the Agreement may be amended or modified to meet the
requirements of Code Section 409A, the Agreement shall be amended
or modified in order to meet the requirements of Code Section 409A;
provided, that any
such amendment or modification shall be subject to the mutual
agreement of Employee and the Company. Moreover, if, upon
Employee’s separation from service, Employee is then a
“specified employee” (as defined in Section 409A of the
Code), then only to the extent necessary to comply with Code
Section 409A and avoid imposition of taxes under Code Section 409A,
the Company will defer payment of certain of the amounts owed to
Employee under this Agreement until the earlier of Employee’s
death or the first business day of the seventh month following
Employee’s separation from service.
(b) Any
right to a series of installment payments pursuant to this
Agreement is to be treated as a right to a series of separate
payments. To the extent permitted under Section 409A of the Code,
any separate payment or benefit under this Agreement or otherwise
shall not be deemed “nonqualified deferred
compensation” subject to Section 409A of the Code to the
extent provided in the exceptions in Treasury Regulation Section
1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable
exception or provision of Section 409A of the Code.
(c) To
the extent that any payments or reimbursements provided to Employee
under this Agreement are deemed to constitute compensation to
Employee to which Treasury Regulation Section 1.409A-3(i)(1)(iv)
would apply, such amounts shall be paid or reimbursed reasonably
promptly, but not later than the 75th day of the fiscal
year following the year in which the expense was incurred. The
amount of any such payments eligible for reimbursement in one year
shall not affect the payments or expenses that are eligible for
payment or reimbursement in any other taxable year, and
Employee’s right to such payments or reimbursement of any
such expenses shall not be subject to liquidation or exchange for
any other benefit. No offset by the Company shall be permitted
against amounts that constitute deferred compensation subject to
Code Section 409A.
13. Notices.
All notices, claims or other communications to be given or
delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when
delivered personally to the recipient, when sent by email,
facsimile or other electronic transmission, the receipt of which is
electronically confirmed, or one (1) day after being sent to the
recipient by reputable overnight courier service (charges prepaid).
Such notices, claims and other communications shall be sent to the
addresses indicated below or to such other address or to the
attention of such other Person as the recipient party has specified
by prior written notice to the sending party. All notices, claims
and other communications hereunder may be given by any other means,
but shall not be deemed to have been duly given unless and until it
is actually received by the intended recipient:
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If to
the Employee, to:
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Xxxxxx
Xxxxxx
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00
Xxxxx Xxxxx
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Xxxxxx, Xxx Xxxx
00000
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Telephone: (000)
000-0000
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Facsimile:
(000)000-0000
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Email:
xxxxxxxxxxxxx@xxxxx.xxx
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With a
copy to:
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Xxxxxxx &
Associates, LLC
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000
Xxxxx Xxxxxxx, Xxxxx X-00
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Xxxxxxxxx, Xxx
Xxxx 00000
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Attention: Xxxx X.
Xxxxxxx
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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Email:
xxxxxxxx@xxxxxxx-xxxxxxxxxx.xxx
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If to
the Company, to:
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Scientific
Industries, Inc.
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00
Xxxxxxx Xxxxx, Xxxxx 000
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Xxxxxxx, Xxx Xxxx
00000
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Attention:
Chairman of Compensation Committee
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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Email:
xxxxxx@xxxxxxxxxxxxxxxxxxx.xxx
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14. Successors
and Assigns; Third Party Beneficiaries. This Agreement shall
be binding upon and inure to the benefit of the successors and
assigns of the Company, and unless clearly inapplicable, all
references herein to the Company shall be deemed to include any
such successor. In addition, this Agreement shall be binding upon
and inure to the benefit of Employee and Employee’s heirs,
executors, legal representatives and assigns; provided, however,
that the obligations of Employee hereunder may not be delegated
without the prior written approval of the Company. In the event of
any consolidation or merger of the Company into or with any other
corporation during the term of this Agreement, or the sale of all
or substantially all of the assets of the Company to another
corporation, person or entity during the term of this Agreement,
such successor corporation shall assume this Agreement and become
obligated to perform all of the terms and provisions hereof
applicable to the Company, and Employee's obligations hereunder
shall continue in favor of such successor corporation.
15.
Acknowledgment.
Employee acknowledges that Employee has carefully read this
Agreement, has had an opportunity to consult counsel regarding this
Agreement and hereby represents and warrants to the Company that
Employee’s entering into this Agreement, and the obligations
and duties undertaken by Employee hereunder, will not conflict
with, constitute a breach of or otherwise violate the terms of any
other agreement to which Employee is a party and that Employee is
not required to obtain the consent of any person, firm, corporation
or other entity in order to enter into and perform Employee’s
obligations under this Agreement.
16.
Waiver of Jury
Trial.
EACH
PARTY TO THIS AGREEMENT HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, ANY RELATED
DOCUMENTS, ANY DEALINGS BETWEEN OR AMONG THEM RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT.
17.
Enforcement. It is
the desire and intent of the parties hereto that the provisions of
this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, to the extent that a
restriction contained in this Agreement is more restrictive than
permitted by the laws of any jurisdiction where this Agreement may
be subject to review and interpretation, the terms of such
restriction, for the purpose only of the operation of such
restriction in such jurisdiction, shall be the maximum restriction
allowed by the laws of such jurisdiction and such restriction shall
be deemed to have been revised accordingly herein. If any provision
of this Agreement shall be held by a court of competent
jurisdiction to be contrary to law or public policy, the remaining
provisions shall remain in full force and effect.
18. Miscellaneous.
This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of New York, without regard
to conflicts of laws. The parties hereto hereby irrevocably submit
to the exclusive jurisdiction of any New York State or Federal
court sitting in Suffolk County, New York over any suit, action or
proceeding arising out of or relating to this Agreement. This
Agreement contains the entire agreement of the parties relating to
the subject matter hereof and supersedes any other agreements
entered into between Employee and the Company prior to the date of
this Agreement relating thereto. This Agreement may not be altered,
modified, amended or terminated except by a written instrument
signed by each of the parties hereto. No term or provision hereof
shall be deemed waived and no breach consented to or excused,
unless such waiver, consent or excuse shall be in writing and
signed by the party claimed to have waived, consented or excused. A
consent, waiver or excuse of any breach shall not constitute a
consent to, waiver or, or excuse of any other or subsequent breach
whether or not of the same kind of the original breach. This
Agreement may be executed and delivered by facsimile signature and
in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument. Counterparts may be delivered via facsimile,
electronic mail (including pdf or any electronic signature
complying with the U.S. federal ESIGN Act of 2000, e.g., xxx.xxxxxxxx.xxx) or other
transmission method and any counterpart so delivered shall be
deemed to have been duly and validly delivered and be valid and
effective for all purposes. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect
the meaning hereof.
[SIGNATURE PAGE TO
FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day of and year first above written.
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Scientific Industries, Inc.
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Secretary
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/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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