EXHIBIT 10.2
CONSULTING AGREEMENT
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This Agreement, effective as of January 1, 2007, by and between NEW
BRUNSWICK SCIENTIFIC CO., INC., a corporation organized and existing under the
laws of the State of New Jersey, having its executive offices at 00 Xxxxxxxx
Xxxx, X.X. Xxx 0000, Xxxxxx, Xxx Xxxxxx 00000-0000 (hereinafter "New Brunswick
Scientific") and XXXXX XXXXXXXX (hereinafter, "Consultant"), having a home
address of 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000.
WHEREAS, Consultant is a founder, an executive employee and currently is a
director and Chairman of the Board of Directors, Chairman of the Executive
Committee, and Chairman of the Innovation and Technology Committee;
WHEREAS, New Brunswick Scientific seeks to provide for a seamless
transition of the management of the company and to have access to the person
whose unique knowledge of the industry and its customers is of material value to
New Brunswick Scientific by retaining Consultant for a specified period of
years; and
WHEREAS, Consultant and New Brunswick Scientific seek to memorialize the
terms and conditions of the consulting arrangement in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
between New Brunswick Scientific and Consultant as contained herein, New
Brunswick Scientific and Consultant agree as follows:
1. TERM OF CONSULTING AGREEMENT
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a. Unless otherwise terminated by either Consultant or New Brunswick
Scientific in accordance with the provisions of Section 9(b) of this Agreement,
Consultant and New Brunswick Scientific agree that this Agreement shall commence
as of January 1, 2007 (the "Effective Date") and shall remain in full force
and effect through December 31, 2009 (the "Consulting Period").
b. During the Consulting Period, Consultant agrees to provide New Brunswick
Scientific with a maximum of One Hundred Twenty (120) hours of consulting
services during each calendar quarter of the Consulting Period, commencing as of
the Effective Date. The actual number of consulting service hours that
shall be performed by Consultant during any given calendar quarter (subject to
this quarterly limitation) shall be determined by New Brunswick Scientific in
its sole and final discretion. In the event that New Brunswick Scientific
requests consulting services to be performed by Consultant for any calendar
quarter which total less than 120 hours, Consultant shall be deemed to have
fulfilled his consulting obligations for such calendar quarter, and New
Brunswick Scientific shall compensate Consultant as if he provided 120 hours of
consulting services during said calendar quarter.
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2. CONSULTING SERVICES TO BE PERFORMED
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a. Subject to the provisions of Section 4 below, Consultant agrees to
provide consulting services and business management advice, at the times and in
the manner requested, to New Brunswick Scientific concerning all requested
aspects of its business operations.
b. Consultant's contact individual(s) at New Brunswick Scientific, with
respect to the nature and scope of the services to be provided herein shall be
the Chief Executive Officer of New Brunswick Scientific, the Board of Directors
of New Brunswick Scientific ("Board"), or any other executive of the company
whom the Chief Executive Officer or the Board shall designate.
It is intended that Consultant's services will be rendered on behalf of the
Edison, New Jersey headquarters of New Brunswick Scientific; provided, however,
that nothing in this Agreement shall require Consultant to be physically present
at the company's headquarters to perform such requested consulting services.
Nothing in this Agreement shall preclude or prevent Consultant from refusing to
undertake any consulting services which would require Consultant to travel to
any facility of New Brunswick Scientific, whether located within or without the
United States (other than the company's Edison, New Jersey headquarters);
provided that such refusal is communicated to the Board in writing as soon as
administratively practicable following any such request by New Brunswick
Scientific.
c. If requested, Consultant shall issue a written progress report to New
Brunswick Scientific, at such times and in such manner as requested by the Chief
Executive Officer or the Board. Consultant agrees to be available upon
reasonable advance notice to engage in discussions and meetings with the Chief
Executive Officer, the Board, or any other New Brunswick Scientific personnel
that either of the Chief Executive Officer or the Board shall direct. Such
meetings and discussions shall be held at times which are mutually convenient
for both the designated New Brunswick Scientific representative(s) and
Consultant.
d. Notwithstanding the provisions of Section 1(b) of this Agreement, in the
event that New Brunswick Scientific requests that Consultant engage in any
particular consulting assignment which is likely to exceed the hourly time
parameters of Section 1(b) hereof for any calendar quarter, Consultant and New
Brunswick Scientific shall agree, in advance of the commencement of any
consulting services associated therewith, as to the total estimated amount of
time Consultant shall expend on such particular task or service. Once
determined, Consultant shall have the right to allocate such estimated time in
any manner he chooses; provided, however, that Consultant shall be subject to
any overall project deadlines imposed by New Brunswick Scientific. Consultant
agrees to notify New Brunswick Scientific as soon as practicable if the time to
be expended by him in completing the requested consulting project will exceed
the previously communicated estimates, or if Consultant will be unable to meet
any previously agreed upon deadline.
e. Consultant and New Brunswick Scientific acknowledge and agree that
Consultant is an independent contractor who shall provide consulting services to
New Brunswick Scientific
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solely under the terms of this Agreement. Nothing in this Agreement shall be
deemed or characterized by either party so as to create an employment
relationship between Consultant and New Brunswick Scientific. As Consultant is
not an employee of New Brunswick Scientific, and as this Agreement does not
constitute an employment contract, Consultant agrees not to represent himself as
an employee of New Brunswick Scientific to any individual or entity for any
reason.
f. By his execution of this Agreement, Consultant acknowledges and agrees
that despite his unique familiarity with the business operations and products of
New Brunswick Scientific, Consultant may not be the exclusive provider of
the types of consulting services covered by this Agreement. As such, New
Brunswick Scientific shall be permitted to engage the services of other
individuals or entities to provide similar consulting services on its behalf.
Similarly, subject only to the restrictions of Sections 5, 6 and 7 of this
Agreement, nothing in this Agreement shall prevent Consultant from providing
similar consulting services to clients (whether individuals or entities) other
than New Brunswick Scientific during the term of this Agreement; provided,
however, that no such activity shall preclude, interfere or otherwise relieve
Consultant from fulfilling his service obligations under the terms of this
Agreement.
g. Consultant and New Brunswick Scientific agree that Consultant shall be
solely responsible for the payment of any and all federal, state and/or local
income taxes, self-employment taxes or other tax liabilities which may be
imposed upon Consultant as a result of his receipt of remuneration for services
received from New Brunswick Scientific under this Agreement.
h. Consultant acknowledges and agrees that as an independent contractor, he
is not eligible to receive any employee benefits from New Brunswick Scientific
as a result of this Agreement or his provision of services on its behalf,
including, but not necessarily limited to, participation in any employee
retirement plan sponsored by New Brunswick Scientific (whether such plan is
qualified or non-qualified), any employee medical insurance coverage plan
sponsored by New Brunswick Scientific, or the receipt of vacation pay, sick pay,
or any other employee fringe benefits; provided, however, that nothing in
this Agreement shall prevent, preclude or otherwise interfere with Consultant's
eligibility for, or receipt of, any employee benefits or other benefits under
the terms of any other agreement between Consultant (in his individual capacity
as other than a consultant) and New Brunswick Scientific, including, but not
limited to, the terms of any employment separation agreement, severance
agreement, retirement agreement or similar arrangement which may have previously
been executed by and between Consultant and New Brunswick Scientific.
i. In the event any governmental entity, agency or department, whether
federal, state or local, shall determine that, notwithstanding the applicable
terms of this Agreement and the understanding of both Consultant and New
Brunswick Scientific, Consultant is an employee of New Brunswick Scientific,
Consultant acknowledges and agrees that he shall not be eligible to receive any
employee benefits which Consultant would otherwise be eligible to receive as a
result of such determination. Upon such a determination, the employee benefits
that Consultant will not be eligible to receive shall include, but not
necessarily be limited to, participation in an employee retirement plan (whether
such plan is qualified or non-qualified) or employee medical insurance
coverage plan, or the receipt of vacation pay, sick pay, or any other employee
fringe
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benefits. Notwithstanding the provisions of this paragraph, or any
determination that Consultant is an Employee of New Brunswick Scientific,
nothing in this Agreement shall prevent, preclude or otherwise interfere with
Consultant's eligibility for or receipt of any employee benefits under the terms
of any other agreement between Consultant (in his individual capacity as other
than a consultant) and New Brunswick Scientific, including, but not limited to,
the terms of any employment separation agreement, severance agreement,
retirement agreement or similar arrangement which may have previously been
executed by and between Consultant and New Brunswick Scientific.
In the event Consultant is determined to be an employee of New Brunswick
Scientific as provided above, Consultant shall be responsible for any and all
tax consequences, whether federal, state or local, and whether income taxes or
otherwise, resulting from such determination.
3. ANCILLARY SERVICES/ DIRECTORSHIP APPOINTMENT
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a. Nothing in this Agreement shall prevent or preclude Consultant from
providing other services, whether similar to those required under the terms of
this Agreement or otherwise, to New Brunswick Scientific in any mutually
agreeable capacity; provided, however, that any such arrangement for the
provision of ancillary services shall be subject to a separate and mutually
agreeable contract or agreement between Consultant (in his individual capacity)
and New Brunswick Scientific.
b. Given Consultant's prior relationship with New Brunswick Scientific, it
is intended that the company may periodically offer Consultant an opportunity to
serve as a member of the Board and/or a specific Committee of the Board.
In the event that Consultant is offered any such Board position(s), Consultant
agrees to accept said appointment and to serve as a member of the Board in
accordance with all applicable corporate governance provisions. Consultant's
compensation as a member of the Board shall be as determined by New Brunswick
Scientific, and shall be in addition to any compensation amounts payable to
Consultant under the provisions of Section 4 of this Agreement.
4. PAYMENT FOR SERVICES
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a. In consideration of Consultant's agreement to provide the consulting
services required under the terms hereof, New placeCityBrunswick Scientific
agrees to pay Consultant a fee of Ten Thousand Dollars ($10,000.00) per month.
Each consulting fee payment shall be made by New Brunswick Scientific no later
than the last day of the calendar month.
b. Notwithstanding any provision of this Agreement to the contrary, to the
extent that New Brunswick Scientific requests that consulting services be
provided by Consultant in excess of 120 hours in any calendar quarter, such
additional consulting services shall be the subject of separate negotiations
between New Brunswick Scientific and Consultant, with the intent of implementing
a supplementary consulting agreement. Consultant shall not be required to
provide consulting services for any calendar quarter in excess of the above
referenced 120 hour limitation unless such a supplementary consulting agreement
is in effect. Consultant and New Brunswick Scientific shall mutually agree as
to the terms and conditions of any
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supplementary consulting agreement covering the additional consulting hours
requested; provided, however, that the amount of Consultant's fees payable under
the terms of a supplemental consulting agreement shall not be less than the
amounts payable to Consultant under the provisions of paragraph "a" of this
Section 4.
5. CONFIDENTIAL INFORMATION
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a. In the course of his provision of consulting services, Consultant may be
provided with certain confidential and proprietary information concerning New
Brunswick Scientific's business operations, client relationships, and business
plans ("Confidential Information"), including information which is otherwise
acquired by or developed by Consultant in conjunction with the consulting
services to be provided under the terms of this Agreement, or which was obtained
by Consultant during his employment with New Brunswick Scientific. Such
Confidential Information includes, but is not limited to: (1) client lists,
accounts, and agreements; (2) sales information and strategies; (3) financial
information of New Brunswick Scientific, any client or perspective client
thereof, or any related entity; (4) confidential client information of any kind
and form; (5) business development plans, information and strategies; (6)
marketing information, strategies and plans; (7) pending or current projects
and/or proposals of any kind; (8) proprietary processes and models, including,
but not limited to, financial models and spreadsheets, projection processes and
assumptions, proprietary software and other computer programs, reporting
processes, historical proprietary data, calculations, projections, or other
similar materials; and (9) technological data and prototypes. The term
"Confidential Information", for purposes of this Agreement, does not include
information that (i) is or becomes generally available to the public other than
by disclosure in violation of this Agreement, or (ii) becomes available to the
relevant party on a nonconfidential basis.Confidential Information shall include
the above referenced information whether communicated to Consultant either
orally, visually, in writing, or through electronic transmission.
b. During the term of the Consulting Period and for all periods subsequent
there to, Consultant shall not disclose, furnish or transmit to anyone, whether
for Consultant's benefit or for the benefit of any other individual or entity,
any Confidential Information of New Brunswick Scientific other than to an
authorized employee of New Brunswick Scientific or such persons to whom New
Brunswick Scientific has given its prior written consent; provided, however,
that Consultant may disclose Confidential Information that is required to be
disclosed by law, governmental regulation or court order. If such disclosure is
required or sought under such circumstances, Consultant will give New
Brunswick Scientific advance written notice so that the company may seek a
protective order or take other appropriate action, as the Board shall determine,
in light of the prevailing circumstances.
c. Under the terms of this Agreement Consultant acknowledges and agrees that
all data, forms, studies, protocols, monitoring tools, reports,
specifications, documents processes, and any and all other items generated
during the course of Consultant's services for New Brunswick Scientific are the
company's sole proprietary property. Originals and copies of all such items
generated by Consultant in connection with or as a result of his work related to
the consultancy services under this Agreement shall be delivered to New
Brunswick Scientific by Consultant on or before the date of the termination of
this Agreement.
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d. New Brunswick Scientific, its affiliates and assigns, shall be free to
use all information and items that Consultant may convey to it as a result of
this Agreement without any further obligation to Consultant, including but not
limited to any further compensation therefor.
6. INTELLECTUAL PROPERTY
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Consultant shall and does hereby irrevocably grant and assign the entire
assignable right, title and interest, without further compensation, in and to
any and all of the works of authorship created by Consultant in the specific
performance of the services herein for New Brunswick Scientific, and any and all
intellectual property created by Consultant during such period, together with
the right to register the copyrights or patents thereon in any and all countries
of the world.
7. PROPRIETARY INFORMATION
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Consistent with the provisions of Section 5 herein, since the nature of the
consulting services to be provided by Consultant under the terms of this
Agreement is likely to bring him into contact with Confidential Information of
New Brunswick Scientific, Consultant agrees that he will not offer to any
competitor of New Brunswick Scientific, or disclose thereto, any information
directly or indirectly related to any services in which he may be or has been
involved, or which he may have performed or be performing as a Consultant for
New Brunswick Scientific under the terms of this Agreement.
8. REPRESENTATIONS AND WARRANTIES
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Consultant represents and warrants that he is under no obligation to any
third party that would interfere with his rendering to New Brunswick Scientific
the consulting services as herein defined or reasonably contemplated, or which
would be inconsistent with any of his representations or obligations under this
Agreement.
9. DURATION AND TERMINATION
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a. Except for the obligations described in Sections 5, 6 and 7 above, which
shall survive termination of this Agreement, this Agreement shall be in effect
for the Consulting Period as provided in Section 1(a) above. If mutually agreed
by both New Brunswick Scientific and Consultant, this Agreement may be renewed
prior to its expiration date by the execution of a renewal agreement by both New
Brunswick Scientific and Consultant.
b. Either New Brunswick Scientific or Consultant may terminate this
Agreement at any time for any reason; provided, however, that the terminating
party shall provide written notice to the non-terminating party of his or its,
as the case may be, intent to terminate this Agreement at least thirty (30) days
prior to the proposed termination date. In the event that New Brunswick
Scientific seeks to terminate this Agreement, such termination may only occur
following the appropriate action of the Board.
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c. Following the termination of this Agreement, New Brunswick Scientific
shall be responsible only for the payment of remuneration, if any, to Consultant
for services performed by him under the terms of this Agreement prior to
the termination date. New Brunswick Scientific shall not be responsible for the
payment to Consultant for any services performed under the terms of this
Agreement after the termination date.
d. Notwithstanding the provisions of paragraph "b" of this Section 9, it is
the intention of New Brunswick Scientific and Consultant that this Agreement
shall survive a "Change of Control" of the company, and shall continue to remain
in full force and effect throughout the Consulting Period. As such, in the
event of a Change of Control of New Brunswick Scientific (as defined in this
paragraph "d"), Consultant shall be entitled to an early termination payment in
the event that this Agreement is terminated by any successor to New Brunswick
Scientific following such a Change of Control and prior to the last day of the
Consulting Period. Such early termination payment shall be the lesser of: (i)
the consulting fees that would have been paid to Consultant under the provisions
of Section 4 of this Agreement had the Agreement continued in effect until the
last day of the Consulting Period; and (ii) an amount which is equal to the
consulting fees payable to Consultant under the provisions of Section 4 of this
Agreement for a twelve (12) month period.
For purposes of this Agreement, a "Change of Control" shall mean a Change
of Control as defined in the Treasury Regulations promulgated under Section 409A
of the Internal Revenue Code of 1986, as amended, and any guidance issued
thereunder by the Internal Revenue Service.
e. Should a party hereto fail to perform any material covenant of this
Agreement on its part to be performed, then upon written notice of such failure
from the other party, the party not in breach or default may cancel or terminate
this Agreement upon written notice, unless this Agreement shall specify
other remedies. Termination of the Agreement under this Paragraph "e" shall not
waive any other remedies. Termination under this Section 9 shall not relieve
Consultant of his obligations under Sections 5, 6 and 7 hereof, nor shall it
relieve Consultant from any liability arising from any breach of this Agreement.
10. MISCELLANEOUS PROVISIONS
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a. Any notice or other communication required or permitted by this Agreement
shall be deemed to have been validly given if the same shall be mailed by
registered or certified mail, postage prepaid, and addressed to the proper party
at the address provided at the outset of this Agreement. Notices to New
Brunswick Scientific shall be directed specifically to the Chief Executive
Officer of New Brunswick Scientific at New Brunswick Scientific's executive
office address, unless otherwise directed.
b. This Agreement may not be assigned by Consultant without the express
written consent of New Brunswick Scientific.
c. Consultant shall not use New Brunswick Scientific's name or any
adaptation of it in any advertising, promotion or sales literature without the
prior written approval of New Brunswick Scientific.
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d. All services described herein are to be performed personally by
Consultant. Any incidental support services performed by others must be
authorized in advance and in writing by New Brunswick Scientific. If so
authorized, the performance of such services shall comply with all the
conditions prescribed by this Agreement and said others must sign a written
agreement to that effect prepared by New Brunswick Scientific.
e. This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of New Brunswick Scientific to which this Agreement
relates and shall be binding upon and inure to the benefit of the successors and
assigns of Consultant.
f. This Agreement shall be construed, interpreted and applied in accordance
with and governed by the procedural and substantive laws of the State of New
Jersey.
g. This Agreement constitutes the entire Agreement between the parties
hereto with respect to the subject matter hereof. No modification of this
Agreement shall be effective unless it is in writing and is signed by each
party. There are no understandings, representations or warranties except as
herein expressly set forth.
h. The persons executing this Agreement in duplicate originals, on behalf of
the parties, represent and warrant that they have authority to execute such
Agreement on behalf of their respective party.
IN WITNESS WHEREOF, the parties acknowledge and agree to the terms and
conditions of this Agreement as of the Effective Date reflected therein.
NEW BRUNSWICK SCIENTIFIC CO., INC.
By: /s/ PeterA.Schkeeper
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Name and Title: Xxxxx X. Xxxxxxxxx, Lead Independent Director
XXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
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