Amended Employment Agreement
This Amended Employment Agreement dated as of October 30th, 2008 is
agreed to 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 as described in the Employment
Agreement dated November 30, 2006 (the "Employment Agreement"); and
WHEREAS, the Company and March desire to amend the Employment
Agreement as set forth in this Amended Employment Agreement ("Amended
Agreement") which commencing December 1, 2008, except for Paragraph 1 which
commencing the date hereof, will supersede 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 of Altamira Instruments, Inc. The Company agrees that March
as President shall be deemed an officer of the Company within the meaning
and shall be entitled to the rights to indemnification provided to officers
of the Company pursuant to its By-laws.
2. Employment Term: The term of this Amended Agreement shall begin
on the date after the date of expiration of the Employment Agreement
("Effective Date") and shall continue through November 30, 2010. It may
continue thereafter for additional one-year terms but not beyond November
30, 2012 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 any subsidiaries,
performing duties substantially similar to the duties he has performed
during the 12-month period ended the date of execution of this Amended
Agreement, 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
$110,000 per annum during the 12 months ended November 30, 2008; $115,000
per annum during the 12 months ended November 30, 2009, which shall increase
by $6,900 to $121,900 during the 12 months ended November 30, 2010.
Subject to March's written consent, the Company may pay all or a portion of
the $6,900 increase by the issuance of options to purchase shares of the
Common Stock of Scientific Industries Inc., the parent of the Company ("SI").
At the sole and absolute discretion of the Board of Directors, the Company
may pay March a bonus in addition to the annual compensation in recognition
of his services and the results of the Company's operation for the year.
March shall be eligible to be granted stock options under the Scientific
Industries Stock Option Plan 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 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 12-month period during the Term.
7. Termination:
a. In the event of March's death during a Term under this
Amended Agreement, this Amended 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 Amended 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 and
terminate this Amended Agreement for any reason. If such termination
is made, notice in writing shall be given as set forth in Paragraph 12.
If such termination is other than for Cause as defined in Paragraph 7(d),
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,
subsection a, for a period of two years from termination.
d. The Company shall have the right to discharge March and
terminate this Agreement, except Paragraphs 8 and 9 shall remain in full
force and effect, for Cause (as hereinafter defined) 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(d), 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.
e. March may terminate this Amended Agreement for any reason
or no reason upon 90 days written notice in as set forth in Paragraph 12, and
all compensation and benefits shall cease upon the date of 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 which the Company during the Term
has advised March it, its subsidiary or SI, 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 or subsidiary 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 or a subsidiary,
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, 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 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 the Company (whether now or hereafter existing)
conceived, discovered or made by March during the Term exclusively belongs
to the Company (and not to March). March will promptly disclose such
Confidential Information to the Company and perform all actions reasonably
requested by the Company to establish and confirm such exclusive ownership.
c. "Confidential Information" means any confidential
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,
or which hereinafter may be sold, developed or contemplated, by the Company
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 any
industrial or laboratory processes, apparatus or equipment relating thereto
(the "Products") or other 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. 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 Company's line of business 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 SI and their respective
subsidiaries shall be the property of the Company or SI, as the case may be,
and shall be delivered by March to the Company, upon termination of
this Agreement or at any other time at the Company's request.
12. Notices. Any notices pertaining to this Amended 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., Reitler Xxxxx & 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 Addendum, 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 Amended Agreement and the Employment
Agreement contain the entire agreement of the parties respecting the subject
matter contained herein. Where the terms of the Amended Agreement conflict
with the Employment Agreement, the Amended Agreement will be deemed
controlling. No modification of any provision hereof shall be effective
except by a written agreement signed by the parties hereto. This Amended
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 Amended 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 Amended 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 Amended Agreement as
of the year and date first above written.
ALTAMIRA INSTRUMENTS, INC.,
By s/s Xxxxxx X. Xxxxxx
________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
XXXXXXXX P. MARCH
/s/ Xxxxxxxx P. March
______________________
