Attached files
Employment Agreement
This Employment Agreement dated as of October 1, 2010 (the
"Agreement") is agreed to by and between ALTAMIRA INSTRUMENTS, INC, a
Delaware corporation (the "Company"), and BROOKMAN P. MARCH, who resides
at 105 Cambridge Court, Harwick, Pennsylvania 15049 ("March").
WITNESSETH:
WHEREAS, the Company has employed March pursuant to an Employment
Agreement, dated November 30, 2006, as amended by an Amended Employment
Agreement, dated October 30, 2008, providing for his employment through
at least November 30, 2010 (the "Employment Agreement"); and
WHEREAS, the Company and March desire to continue his employment
beyond November 30, 2010 pursuant to this Agreement which will supersede
all provisions of the Employment Agreement and the Amended 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 the Company. 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: The term of this Agreement shall begin on
the date hereof ("Effective Date") and shall continue through June 30,
2012. 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 $121,900 per annum for the period from the date hereof and ending
ended November 30, 2010 and $128,000 per annum for the period December
1, 2010 through the termination date. 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 period
ending November 30, 2010, the seven month period ending June 30, 2011,
and the fiscal year ending June 30, 2012. 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 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 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 in as set forth in Paragraph 12, a
nd all compensation and benefits shall cease upon such 90th date.
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 biotech products or items which the
Company during the Term has advised March, 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 or SI or a subsidiary of the Company or of 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 s
hall not solicit or induce any employee of the Company, SI or a
subsidiary of the Company or of 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
of 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 and perform all actions
reasonably requested by the relevant Company Group member 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 mark, 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,
biotech products, 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
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 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 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, upon
termination of this Agreement or at any other time at the Company'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., 70 Orville Drive, Bohemia, New York, 11716,
attention: Chief Executive Officer, with a copy of any notice to the
Company to be sent to Leo Silverstein, Esq., Reitler Kailas & Rosenblatt
LLC, 885 Third Avenue, New York, New York 10022 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 Schnader
Harrison Segal & Lewis LLP, Attention: Jeffrey W. Letwin, Esq. 2700
Fifth Avenue Place, 120 Fifth Avenue, Pittsburgh, Pennsylvania 15222-3010.
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 Amended Agreement
as of the year and date first above written.
ALTAMIRA INSTRUMENTS, INC.,
By: /s/ Helena R. Santos
Name: Helena R. Santos
_________________________________
Title: Chief Executive Officer
BROOKMAN P. MARCH
/s/ Brookman P. March
______________________________________
