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CONSULTING AGREEMENT
Consulting Agreement, dated as of March 1, 2019
(this “Agreement”), between Scientific Industries Inc., a
Delaware Corporation (the “Company”), and John A. Moore
(“Moore”).
WHEREAS,
Moore has been a Director of the Company since January 23,
2019;
WHEREAS, the Company desires that commencing with
the date hereof, Moore be available to provide consulting services
as to the operations of the Company and of Scientific Bioprocessing
Inc. (“SBI”), principally with respect to the business
development and strategy of SBI, and Moore desires to make himself
available to provide such services on a timely basis at the
reasonable request of the Company.
NOW
THEREFORE, IT IS HEREBY AGREED as follows:
1. Moore agrees at the
reasonable request of the Chief Executive Officer of the Company or
such other officer of the Company designated by the Board of
Directors of the Company, to advise and consult with such officer
or an employee of the Company designated by such officer as to the
operations of the Company and of SBI, including, but not limited to
strategy, planning, administration, sales, operations, etc., as to
SBI.
2. In no event shall
Moore be required to perform any consulting services as to which he
reasonably and timely objects based on location, period or nature
of the services requested.
3. Subject to the
prior written approval of the Chief Executive Officer of the
Company, Moore is authorized to incur on behalf of the Company
reasonable and necessary expenses in connection with the
performance of his services on behalf of the Company or SBI
hereunder, it being understood that he is not entitled to receive
any health, pension or other benefits provided or made available to
employees of the Company or of SBI.
4. For each full month
that services are provided, the Company shall pay or cause SBI to
pay Moore a fee of $10,000 in cash and issue to Moore that number
of stock options with a grant date fair value of $3,000 as measured
using the Black-Scholes option pricing model. The options shall be
issued in accordance with the terms and conditions set forth in the
Company’s 2012 Stock Option Plan. Such compensation shall be
pro-rated for services provided for a partial month. Moore shall
submit to the Chief Executive Officer of the Company a written
report by the third business day following the end of each calendar
month during the Term as to the number of hours he provided
consulting services and a brief description of the services or
matters for which he rendered consulting services, and the
description of the out-of-pocket expenses incurred pursuant to
Paragraph 3 hereof. The Company shall pay or cause SBI to pay Moore
upon receipt of his invoice the fees and expenses set forth therein
which were incurred for the services provided pursuant to this
Agreement.
5. None of the
consulting services to be performed pursuant to this Agreement
shall include the services or time Moore provides as or in
connection with his duties as a Director of the Company or a
Director of SBI.
6. The services being
provided hereunder shall be provided by Moore in his capacity as an
independent contractor.
7. The
“Term” of this Agreement shall be the six-month period
ending August 31, 2019, unless terminated earlier by written notice
by the Company or Moore delivered to the other. At the end of the
Term, this Agreement may be renewed by the mutual written agreement
of the parties hereto.
8. Consultant agrees
to execute and deliver to the Company the Confidentiality
Information Agreement and Non-Competition Agreement, in the form of
Exhibits A and B attached hereto which agreements shall survive the
expiration or termination of this Agreement for whatever
reason.
9. This Agreement
shall be deemed to have been made in the State of New York and
shall be governed by and construed in accordance with the laws of
the State of New York without regard to conflict of law rules
thereof.
10. If any restriction
contained in this Agreement shall be deemed to be invalid, illegal,
or unenforceable by reason of the extent, duration, or geographical
scope thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent, duration,
geographical scope, or other provisions hereof, and in its reduced
form such restriction shall then be enforceable in the manner
contemplated hereby
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SCIENTIFIC
INDUSTRIES, INC.
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/s/ John A.
Moore
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/s/ Helena R.
Santos
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John A.
Moore
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Helena R.
Santos
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President and Chief
Executive Officer
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Exhibit A
Confidential Information Agreement
February 28, 2019
Dear John:
This letter, when executed by the parties hereto,
will constitute an agreement between Scientific Industries, Inc., a
Delaware corporation (the "Company"), with its principal office in Bohemia, New York
and which owns the outstanding capital stock of Scientific
Bioprocessing, Inc., a Delaware Corporation
(“SBI”), and John A. Moore ("Consultant") with respect to certain aspects of their
continuing consulting relationship under the terms and conditions
set forth below.
1. The
Company has engaged Consultant to perform principally on behalf of
SBI, consulting services and Consultant desires to perform such
services, as set forth in a separate agreement (the "Consulting Agreement"), during the
period set forth in the Consulting Agreement (the
“Term of
Engagement”). As an inducement to the Company to
engage Consultant as aforesaid, the parties hereto set forth the
following additional terms and conditions.
2. (a) During
and after the Term of Engagement, Consultant will not, directly or
indirectly, disclose to any person, or use or otherwise exploit for
the benefit of Consultant or for the benefit of anyone other than
the Company or SBI, any Confidential Information (as defined
below). Consultant shall have no obligation hereunder to keep
confidential any Confidential Information if and to the extent
disclosure is specifically required by law; provided, however, that in the event
disclosure is required by applicable law, Consultant shall provide
the Company or SBI, as the case may be, with prompt notice of such
requirement, prior to making any disclosure, so that the Company or
SBI may seek an appropriate protective order.
(b) At
the request of the Company, Consultant agrees to deliver to the
Company or SBI, as the case may be, at any time during the Term of
Engagement, or thereafter if secured later, all Confidential
Information which Consultant may possess or control. Consultant
agrees that all Confidential Information of the Company or SBI
(whether now or hereafter existing) conceived, discovered or made
by Consultant during the Term of Engagement exclusively belongs to
the Company or SBI, as the case may be (and not to Consultant).
Consultant will promptly disclose such Confidential Information to
the Company or SBI, as the case may be, and perform all actions
reasonably requested by the Company or SBI to establish and confirm
such exclusive ownership. “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, accounting records and other financial
information, customer pricing and 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
its subsidiaries, including SBI (collectively, the
“Company
Group”), or which hereinafter may be sold, developed
or contemplated, by a member of the Company Group through the date
of termination of the Term of Engagement, including, but not
limited to, bioprocessing products, mixers, including vortex
mixers, rotating, catalytic research instruments, balances, scales,
moisture analyzers, force gauges, 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
members 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 Consultant not permissible
hereunder.
3. Consultant
agrees to indemnify and save the Company and SBI, their respective
directors, officers, stockholders, agents, representatives,
employees and consultants (and such persons' respective affiliates)
harmless from any and all loss, damage, claims, liabilities,
judgments and other cost and expense of every kind and nature which
may be incurred by such persons by reason of the transactions
contemplated by the Consulting Agreement or this letter agreement
or the breach of any representation, warranty, covenant or
agreement contained or refined to therein or herein (including,
without limitation, reasonable attorneys' fees and expenses),
except in the case of such person’s own willful default or
gross negligence.
4. The
covenants, agreements, representations, and warranties contained in
or made pursuant to this letter agreement shall survive termination
of Consultant's engagement, irrespective of any investigation made
by or on behalf of any party. If any restriction contained in this
letter agreement shall be deemed to be invalid, illegal, or
unenforceable by reason of the extent, duration, or geographical
scope thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent, duration,
geographical scope, or other provisions hereof, and in its reduced
form such restriction shall then be enforceable in the manner
contemplated hereby.
5. This
letter agreement shall be deemed to have been made in the State of
New York and shall be governed by and construed in accordance with
the laws of the State of New York without regard to conflict of law
rules thereof. Any action, suit or proceeding arising out of, or in
connection with, this letter agreement shall be adjudicated in a
court of competent jurisdiction located in Nassau or Suffolk
County, State of New York. The parties hereto unconditionally waive
any right to a trial by jury and any objection which either of them
may now or hereafter have to the establishment of venue as
aforementioned or that any action, suit or proceeding has been
brought in an inconvenient forum.
If
Consultant is in agreement with the foregoing, please execute two
copies of this letter in the space provided below and return them
to the undersigned.
Very
truly yours,
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Scientific
Industries, Inc.
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By:
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/s/ Helena R.
Santos
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Helena R.
Santos
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President and Chief
Executive Officer
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AGREED
AND ACCEPTED TO:
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By:
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/s/ John A.
Moore
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John A.
Moore
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Exhibit
B
Non-Competition Agreement
February 28, 2019
Dear John:
This letter, when executed by the parties hereto,
will constitute an agreement between John A. Moore
("Consultant") and Scientific Industries, Inc., a Delaware
corporation (the “Company”), on behalf of itself and its subsidiaries
including Scientific Bioprocessing, Inc., a Delaware corporation
(“SBI”, the Company, SBI and the subsidiaries of
the Company collectively, the “Company
Group”), with respect to
certain aspects of your continuing relationship with members of the
Company Group, under the terms and conditions set forth
below.
1. The
Company has engaged Consultant to perform services for the Company,
principally on behalf of SBI, and Consultant desires to perform
such services, on the terms and conditions which are the subject of
a Consulting Agreement for a period of time (the
“Term
of Engagement”) as more
fully set forth in such Consulting Agreement. In addition to the
compensation to which Consultant is already entitled, as a further
inducement to the Company to engage Consultant as aforesaid, the
parties hereto set forth the following additional terms and
conditions.
2. Consultant
acknowledges that services to be provided by Consultant resulting
from his knowledge of the business and his prior relationship with
the Company, and the customers and competitors of the Company Group
members, principally SBI, are unique and that obtaining or use of
same by a competitive business or business similar to that of the
Company or SBI would cause irreparable injury to the Company or
SBI, as the case may be. Consultant covenants and agrees
that:
(a) From
the date hereof through the date of termination of the Term of
Engagement, Consultant will not, without the express written
approval of the Board of Directors or the Chief Executive Officer
of the Company, directly or indirectly, own, manage, operate,
control, invest or acquire an interest in, or otherwise engage or
participate in, or be associated with in any way, any business
which competes directly or indirectly with the business or proposed
business of a member of the Company Group (a "Competitive
Business"); provided,
however,
that Consultant may, directly or indirectly, with his spouse own,
invest or acquire an interest in the aggregate of up to two percent
(2%) of the capital stock of a corporation whose capital stock is
traded publicly.
(b) Additionally,
from the date hereof through the date which is 18 months after the
date of termination of the Term of Engagement (the
“Restricted
Period”), Consultant will
not, without the express written approval of the Board of Directors
or the Chief Executive Officer of the Company, directly or
indirectly, become associated with a Competitive Business, or
otherwise engage in or assist in any enterprise, which develops,
markets, sells, manufactures or designs products currently being
sold, developed or contemplated, by a member of the Company Group,
or which hereinafter may be sold, developed or contemplated, by a
member of the Company Group, as of the date of termination of the
Term of Engagement, 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”). Consultant may, during the Restricted
Period, become associated with a Competitive Business to the extent
association of the Consultant is not related in any way to the
development, manufacture, design, marketing or sale of the Products
or products which are intended to compete with the
Products.
(c) During
the Restricted Period, Consultant will not, without the express
prior written approval of the Board of Directors or Chief Executive
Officer of the Company, (i) directly or indirectly, in one or a
series of transactions, recruit, solicit or otherwise induce or
influence any proprietor, partner, stockholder, lender, director,
officer, employee, sales agent, joint venturer, investor, lessor,
supplier, customer, consultant, agent, representative or any other
person which has a business relationship with a member of the
Company Group or to cause such person to discontinue, reduce or
modify such employment, agency or business relationship with a
member of the Company Group, or (ii) employ or seek to employ or
cause any Competitive Business to employ or seek to employ any
person or agent who is then (or was at any time within one (1) year
prior to the date the Competitive Business employs or seeks to
employ such person) engaged or retained by a member of the Company
Group.
(d) Since
a breach of the provisions of this paragraph 2 could not adequately
be compensated by money damages, the Company shall be entitled, in
addition to any other right and remedy available to it, to an
appropriate order from a court of competent jurisdiction
restraining such breach or a threatened breach, and in any such
case, no bond or other security shall be required to be posted in
connection therewith, and Consultant hereby consents, to the
issuance of such order. Consultant agrees that the provisions of
this paragraph 2 are necessary and reasonable to protect the
Company in the conduct of the business of the Company Group. If any
restriction contained in this paragraph 2 shall be deemed to be
invalid, illegal, or unenforceable by reason of the extent,
duration, or geographical scope thereof, or otherwise, then the
court making such determination shall have the right to reduce such
extent, duration, geographical scope, or other provisions hereof,
and in its reduced form such restriction shall then be enforceable
in the manner contemplated hereby.
3. Consultant
agrees that from the date of this letter agreement and continuing
indefinitely thereafter, Consultant shall not say or do anything
which could disparage, undermine or be reasonably interpreted to
denigrate the capabilities, performance, integrity or reputation of
any member of the Company Group or any of its directors, officers,
stockholders, agents, employees, representatives or
consultants.
4. Consultant
agrees to indemnify and save the Company and its directors,
officers, stockholders, agents, representatives, employees and
consultants (and such persons' respective affiliates) harmless from
any and all loss, damage, claims, liabilities, judgments and other
cost and expense of every kind and nature which may be incurred by
such persons by reason of the breach of any representation,
warranty, covenant or agreement contained herein (including,
without limitation, reasonable attorneys' fees and expenses),
except in the case of such persons own willful default or gross
negligence.
5. The
covenants, agreements, representations, and warranties contained in
or made pursuant to this letter agreement shall survive the
termination of the Term of Engagement, irrespective of any
investigation made by or on behalf of any
party.
6. This
letter agreement shall be deemed to have been made in the State of
New York and shall be governed by and construed in accordance with
the laws of the State of New York without regard to conflict of law
rules thereof. Any action, suit or proceeding arising out of, or in
connection with, this letter agreement shall be adjudicated in a
court of competent jurisdiction located in Nassau or Suffolk
County, State of New York. The parties hereto unconditionally waive
any right to a trial by jury and any objection which either of them
may now or hereafter have to the establishment of venue as
aforementioned or that any action, suit or proceeding has been
brought in an inconvenient forum. If you are in agreement with the
foregoing, please execute two copies of this letter in the space
provided below and return them to the
undersigned.
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Scientific
Industries, Inc.
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By:
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/s/ Helena R.
Santos
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Helena R.
Santos
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President and Chief
Executive Officer
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ACCEPTED AND AGREED TO: |
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By:
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/s/ John A.
Moore
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John A.
Moore
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