-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, H6URrxLRK0HTcKRkTEGt0ZbZ1SDgjrAM+6ikAFS8hV9mgQot6wrSfqRAGgVOzFop EFoJhHYUj7zegFZjZbDsIA== 0000071241-06-000028.txt : 20061218 0000071241-06-000028.hdr.sgml : 20061218 20061215175757 ACCESSION NUMBER: 0000071241-06-000028 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20061214 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20061218 DATE AS OF CHANGE: 20061215 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEW BRUNSWICK SCIENTIFIC CO INC CENTRAL INDEX KEY: 0000071241 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY APPARATUS & FURNITURE [3821] IRS NUMBER: 221630072 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-06994 FILM NUMBER: 061281599 BUSINESS ADDRESS: STREET 1: 44 TALMADGE RD STREET 2: PO BOX 4005 CITY: EDISON STATE: NJ ZIP: 08818-4005 BUSINESS PHONE: 9082871200 MAIL ADDRESS: STREET 1: 44 TALMADGE ROAD STREET 2: PO BOX 4005 CITY: EDISON STATE: NJ ZIP: 08818-4005 8-K 1 form8kdfreedmanretirement.txt FORM 8K D.FREEDMAN RETIREMENT 12.12.06 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): December 12, 2006 NEW BRUNSWICK SCIENTIFIC CO., INC. -------------------------------------------- (Exact name of registrant as specified in its charter) NEW JERSEY 0-6994 22-1630072 - ----------------------------- ------------ ------------------- (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) P.O. BOX 4005 44 TALMADGE ROAD EDISON, NEW JERSEY 08818-4005 - ---------------------------------------- ----------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (732) 287-1200 N/A (Former name or former address, if changed since last report.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT On December 12, 2006, New Brunswick Scientific Co., Inc. (the "Company") entered into a Retirement Agreement with David Freedman. Under the terms of the Retirement Agreement Mr. Freedman agrees to retire from the Company on December 31, 2006 and among other consideration, Mr. Freedman will be paid a $396,000 bonus in recognition of his founding, visionary guidance and service to the Company. A copy of this agreement is being furnished with this Current Report on Form 8-K as Exhibit 10.1. On December 12, 2006, the Company also entered into a three year Consulting Agreement with Mr. Freedman, effective as of January 1, 2007. Under the terms of this agreement, Mr. Freedman agrees to provide one hundred twenty (120) hours of consulting services during each calendar quarter and as consideration for those services will be paid $10,000 per month over the term of this agreement. The Company also expressed its intention in the Consulting Agreement to offer Mr. Freedman the opportunity to continue as a director during the term of the Consulting Agreement. The Consulting Agreement is terminable by either party upon 30 days advance written notice, provided that termination by the Company requires affirmative action by the Company's Board of Directors. If the Company terminates the Consulting Agreement in connection with a "change in control", Mr. Freedman is entitled to an early termination payment which would be the lesser of (i) the consulting fees which otherwise would be payable to him from termination through the end of the three-year term, or (ii) one year's worth of the consulting fees. A copy of this agreement is being furnished with this Current Report on Form 8-K as Exhibit 10.2. The Company also entered into a letter agreement with James Orcutt. Under the terms of this agreement, effective January 1, 2007, Mr. Orcutt will assume the position of Chief Executive Officer and President of the Company. Mr. Orcutt will, among other consideration, receive a compensation package which includes a base salary of $265,000 per annum, bonus and stock options. A copy of this agreement is being furnished with this Current Report on Form 8-K as Exhibit 10.3. ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS. On December 13, 2006, New Brunswick Scientific Co., Inc. announced the retirement of David Freedman, the Company's Chief Executive Officer effective as of December 31, 2006. Mr. Freedman will continue to serve as the Company's non-executive Chairman of the Board. The Company simultaneously announced that James Orcutt was appointed to the position of Chief Executive Officer effective as of January 1, 2007. A copy of this press release is being furnished with this Current Report on Form 8-K as Exhibit 99.1. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS. (D) EXHIBITS
Exhibit Number Description of the Exhibit - ------- --------------------------------------------------------------------------------------------------------------- 10.1 Retirement Agreement with David Freedman. 10.2 Consulting Agreement with David Freedman. 10.3 Letter agreement with James Orcutt. 99.1 Press release dated December 13, 2006, entitled "New Brunswick Scientific Co-Founder David Freedman to Retire".
Signatures Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. New Brunswick Scientific Co., Inc. Date: December 14, 2006 By:/s/ Thomas Bocchino -------------------- Thomas Bocchino Vice President, Finance and Chief Financial Officer EX-10.1 2 retirmentagreement.txt RETIREMENT AGREEMENT EXHIBIT 10.1 RETIREMENT AGREEMENT -------------------- THIS AGREEMENT, by and between DAVID FREEDMAN, having a home address of 40 North Seventh Avenue, Highland Park, New Jersey 08904 ("Mr. Freedman"), and NEW BRUNSWICK SCIENTIFIC CO., INC., having a principal office address located at 44 Talmadge Road, P.O. Box 4005, Edison, New Jersey 08818-4005 ("New Brunswick Scientific" or the "Company"). WHEREAS, Mr. Freedman 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, in furtherance of his stated intentions, Mr. Freedman agrees to retire from the employ of New Brunswick Scientific effective December 31, 2006; (the "Retirement Date"); WHEREAS, New Brunswick Scientific desires to provide Mr. Freedman with certain benefits in excess of those which Mr. Freedman would be entitled to receive in the absence of an agreement between the parties in recognition of his half-century of contributions to the Company, including identifying the need for scientific equipment for the use in researching, manufacturing and replicating microbiological organisms and his unstinting dedication to the design and improvement of such equipment; WHEREAS, Mr. Freedman and New Brunswick Scientific hereby mutually agree that any and all issues concerning Mr. Freedman's employment with New Brunswick Scientific, and its termination due to Mr. Freedman's retirement, shall be addressed in accordance with the terms of this Retirement Agreement ("Agreement"); WHEREAS, Mr. Freedman has been afforded a reasonable opportunity to review and consider this Agreement as more specifically set forth below; and WHEREAS, Mr. Freedman has been advised of his right to consult with independent legal counsel of his choice regarding the execution of this Agreement. NOW, THEREFORE, Mr. Freedman and New Brunswick Scientific, for the good and sufficient consideration set forth below, hereby agree as follows: 1. In recognition of his founding of the Company, including his vision of the need for advanced scientific equipment for the pharmaceutical and biotech industries, and of his years of service on behalf of the Company, New Brunswick Scientific shall pay to Mr. Freedman a bonus ("Recognition Bonus") of Three Hundred and Ninety Six Thousand Dollars ($396,000.00). This Recognition Bonus shall be paid to Mr. Freedman less all applicable federal, state and local tax and other proper withholdings, and shall be paid to Mr. Freedman as soon as administratively practicable following Mr. Freedman's Retirement Date; provided, however that Mr. Freedman's Recognition Bonus shall in no event be paid later than March 31, 2007. 1 2. Mr. Freedman shall remain eligible to receive a performance-based bonus for 2006 calendar year, subject to his attainment of the financial goals and other parameters for the payment of same as in effect under the applicable bonus program immediately prior to Mr. Freedman's Retirement Date. In the event that a performance-based bonus for the 2006 calendar year is attained by Mr. Freedman, such bonus shall be paid to him in accordance with the applicable terms of said bonus program. This performance-based bonus is in addition to the Recognition Bonus provided for in Section "1" above. Further upon retirement, Mr. Freedman shall be entitled to receive $35,562 as payment for accrued vacation days not used by him prior to his Retirement Date. In addition, the split dollar life insurance arrangement which was previously implemented for the benefit of Mr. Freedman shall remain in effect through Mr. Freedman's Retirement Date and thereafter, subject to the provisions of the split dollar life insurance agreement. 3. To assist in the transition of the management of New Brunswick Scientific, the Company agrees to offer Mr. Freedman a consulting arrangement, whereby Mr. Freedman will be retained by New Brunswick Scientific to provide the Company with certain consulting services for a specified period of time following his Retirement Date. The terms and conditions of such consulting arrangement shall be the subject of a mutually agreeable consulting agreement by and between Mr. Freedman and New Brunswick Scientific. 4. Mr. Freedman, in addition to having held the position of Chief Executive Officer of New Brunswick Scientific through his Retirement Date, has served and continues to serve as Chairman of the Board of Directors, having previously been elected by the Company's shareholders to a three (3) year term ending at the Annual Meeting of the Company in 2008. In order to provide the Company with Mr. Freedman's guidance and insight, New Brunswick Scientific desires and Mr. Freedman has agreed that he shall currently continue to serve as Chairman of the Board of Directors. In addition, the Company has requested and Mr. Freedman has agreed to currently continue to serve as the Chairman of the Company's Innovation and Technology Committee. Mr. Freedman will receive fees for his services as set by the Board of Directors for service in those positions, currently $40,000.00 annually for non-executive Chairman and $7,500.00 annually for Chairman of the Innovative and Technology Committee. 5. Mr. Freedman shall, on or prior to his Retirement Date, have the right, but not the obligation, to purchase for net book value the automobile that had been provided to Mr. Freedman as Chief Executive Officer. If Mr. Freedman elects to purchase this automobile, it shall be purchased as is, where is and without any express or implied warranty of fitness, merchantability or otherwise concerning its condition. Mr. Freedman acknowledges and agrees that the difference between the purchase price of the automobile and its fair market value, if any, shall be reported as ordinary taxable compensation income to him for the calendar year in which the sale of the automobile to Mr. Freedman occurs. 6. Mr. Freedman understands and agrees that the benefits specified in Sections "1", "3", "4" and "5" above are being offered to him in recognition of his commitment to the Company during 2 his many years of service, and that his receipt of those benefits is dependent upon his execution of this Agreement. The benefits payable under the terms of this Agreement represent all monies and other benefits payable to Mr. Freedman as a result of his retirement from the employ of New Brunswick Scientific, with the exception of: (i) any benefits payable to him (or his designated beneficiary) under the terms of any tax-qualified retirement plan sponsored by the Company; and (ii) any amounts payable by New Brunswick Scientific to or on behalf of Mr. Freedman as a result of its indemnification of him from any claims associated with his employment with the Company or service as a director thereof. 7. In exchange for the benefits to be provided pursuant to Sections "1", "3", "4" and "5" above, Mr. Freedman, of his own free will, voluntarily releases and forever discharges New Brunswick Scientific, its subsidiaries, divisions or affiliates, and/or any of its current and/or former officers, Board members, employees, agents, successors and assigns, both individually and in their official capacities with New Brunswick Scientific, of and from any and all actions or causes of action, suits, claims, charges, complaints, contracts, demands for damages, agreements and promises, whatsoever, in law or equity, however arising and whether known or unknown, against New Brunswick Scientific and/or any of the above referenced individual(s) or entities, which Mr. Freedman, his heirs, executors, administrators, successors, and assigns may now have or hereafter can, shall or may have for, upon, or by reason of any matter, cause or thing whatsoever, including, but not limited to any and all matters arising out of his employment with New Brunswick Scientific, the cessation of said employment, and including, but not limited to, any claims for salary, bonuses, severance or separation pay, expenses, vacation pay or any benefits payable under any retirement plan or similar arrangement sponsored by the Company, other than routine claims for benefits payable under any retirement plan subject to the provisions of the Employee Retirement Income Security Act of 1974, as amended; any claims of sexual harassment or discrimination based upon race, color, national origin, ancestry, religion, martial status, sex, sexual orientation, citizenship status, pregnancy, medical condition or disability, under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans With Disabilities Act, the Family and Medical Leave Act of 1993, the Fair Labor Standards Act, Section 1981 of the Civil Rights Act or any other federal, state, or local law prohibiting discrimination in employment; any claims of age discrimination under the Age Discrimination in Employment Act of 1967, or under any other federal, state, or local law prohibiting age discrimination; claims of breach of implied or express contract, breach of promise, misrepresentation, negligence, fraud, estoppel, defamation, infliction of emotional distress, violation of public policy, wrongful or constructive discharge, or any other employment-related tort; any claim for costs, fees, or other expenses, including attorneys' fees; and all claims under any other federal, state, or local law relating to employment. This includes a waiver of all claims that Mr. Freedman knows about, and any and all claims that he may not know about. 3 8. As a condition of this Agreement, Mr. Freedman agrees not to seek reinstatement or reemployment with New Brunswick Scientific in his prior capacity or otherwise; provided, however that nothing in this Agreement shall preclude Mr. Freedman from serving as an independent consultant to the Company, a member of its Board or any committee thereof. 9. As soon as administratively practicable prior to his Retirement Date, Mr. Freedman agrees to return to New Brunswick Scientific all property of the Company which is in his possession, other than materials reasonably necessary for him to: (i) provide consulting services under the consulting agreement referenced in Section "3" of this Agreement; or (ii) complete his duties as Chairman of the Board of Directors and/or Chairman of the Innovation and Technology Committee, as provided in Section "4" of this Agreement. As of the date that Mr. Freedman ceases to be a consultant of the Company, or hold either of the above referenced chair positions, he shall return all remaining property of New Brunswick Scientific to the Company. In addition, and in anticipation of his Retirement Date, Mr. Freedman agrees to cooperate with the Company to take all reasonable steps necessary to transfer his authority to handle certain Company administrative and operative matters to the appropriate successor New Brunswick Scientific personnel. 10. Except as required by law, Mr. Freedman agrees not to divulge any trade secrets or other Confidential Information obtained by him during his employment with New Brunswick Scientific or otherwise. 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. 11. This Agreement supersedes any and all prior agreements concerning the subject matter hereof between New Brunswick Scientific and Mr. Freedman and may not be modified, altered or changed except in writing, which shall be valid only if signed by both an authorized officer of New Brunswick Scientific or a member of its Board and by Mr. Freedman. 12. Mr. Freedman agrees not to make any disparaging statements, directly or indirectly, about New Brunswick Scientific, its subsidiaries, divisions or affiliates, and/or any of its current and/or former officers, board members, employees, agents, successors and assigns, either individually or in their official capacities with New Brunswick Scientific. 13. New Brunswick Scientific agrees not to make any disparaging statements directly or indirectly about Mr. Freedman, either individually or in his capacity as a former New Brunswick Scientific employee. 4 14. Mr. Freedman represents that he has not caused or permitted to be filed, and shall not cause or permit to be filed, any charge, complaint or action before any federal, state or local administrative agency or court against New Brunswick Scientific, its subsidiaries, affiliates, successors, assigns, officers, directors, employees or agents and that no such charge, complaint or action exists. 15. Mr. Freedman represents and warrants that he has been advised by New Brunswick Scientific of his right to consult with independent legal counsel before signing this Agreement and that he has executed this Agreement after having the opportunity to consider its terms for at least twenty-one (21) days. Mr. Freedman further represents and warrants that he has read this Agreement carefully, that he fully understands its terms, and that he is signing it voluntarily and of his own free will. 16. This Agreement shall not become effective until the twenty-first (21st) day following the day on which Mr. Freedman signs it, and he may, at any time prior to that effective date, revoke this Agreement by giving written notice of such revocation to the Chief Executive Officer of the Company at New Brunswick Scientific's principal offices at the address indicated above. 17. The offer contained in this Agreement shall be withdrawn by its terms without notice to Employee if it is not executed by same, signed by a witness to his signature, and delivered to Thomas Bocchino at the principal office of New Brunswick Scientific at the address listed above as of the date which is thirty (30) days from the date on which it is initially delivered to Mr. Freedman. IN WITNESS WHEREOF, the parties hereto voluntarily and knowingly execute this Retirement Agreement on this 12 day of December, 2006. ATTEST: NEW BRUNSWICK SCIENTIFIC CO., INC. /s/ Ernest Gross 12/12/06 By: /s/ Peter A. Schkeeper ------------------ -------- ------------------------- Dated Lead Independent Director /s/ Dr. David Pramer 11/29/06 /s/ David Freedman ----------------------- -------- -------------------- Witness Dated DAVID FREEDMAN 5 EX-10.2 3 consultingagreement.txt CONSULTING AGREEMENT EXHIBIT 10.2 CONSULTING AGREEMENT -------------------- 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 44 Talmadge Road, P.O. Box 4005, Edison, New Jersey 08818-4005 (hereinafter "New Brunswick Scientific") and DAVID FREEDMAN (hereinafter, "Consultant"), having a home address of 40 North Seventh Avenue, Highland Park, New Jersey 08904. 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 ------------------------------- 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. -1- 2. CONSULTING SERVICES TO BE PERFORMED --------------------------------------- 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 -2- 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 -3- 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 ----------------------------------------------- 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 ---------------------- 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 -4- 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 ------------------------- 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. -5- 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 ---------------------- 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 ------------------------ 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 -------------------------------- 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 -------------------------- 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. -6- 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 ------------------------- 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. -7- 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 --------------------- Name and Title: Peter A. Schkeeper, Lead Independent Director DAVID FREEDMAN /s/ David Freedman -------------------- -8- EX-10.3 4 ceopresidentcompe.txt CEO/PRESIDENT COMPENATION AGREEMENT EXHIBIT 10.3 New Brunswick Scientific Co., Inc. Independent Directors November 13, 2006 Mr. James Orcutt, President New Brunswick Scientific Co., Inc. Dear Jim, The independent Directors have agreed to offer you the following compensation effective January 1, 2007 upon your assuming the position of Chief Executive Officer and President of NBSC: 1. Base salary: $265,000 2. Discretionary bonus based on present criteria at 40%. We intend to review the bonus structure for 2008 with the expectation of adding an incentive program based on objective performance criteria. 3. At least 25,000 in stock options, subject to approval by the Board of Directors 4. Four weeks vacation. 5. All other existing fringes to be continued including golf club, car, health coverage, insurance, etc. We would appreciate your signing this letter to indicate understanding and concurrence. For the Independent Directors: Acceptance by: /s/ Peter A. Schkeeper 11/14/06 /s/ James Orcutt 11/13/06 - --------------------------------- ---------------- -------- Peter A. Schkeeper Date James Orcutt Date: EX-99.1 5 pressrelease.txt PRESS RELEASE EXHIBIT 99.1 NEW BRUNSWICK SCIENTIFIC CO., INC. P.O. Box 4005 - 44 Talmadge Road - Edison, NJ 08818-4005 U.S.A. INVESTOR CONTACTS: Thomas Bocchino Matthew J. Dennis, CFA Vice President, NBS Investor Relations Finance and Treasurer Clear Perspective New Brunswick Scientific Co., Inc. Group, LLC 732.650.2500 732.226.3030 tbocchino@nbsc.com mdennis@cpg-llc.com - ------------------ ------------------- FOR IMMEDIATE RELEASE --------------------- NEW BRUNSWICK SCIENTIFIC CO-FOUNDER DAVID FREEDMAN TO RETIRE PRESIDENT AND COO ORCUTT TO ASSUME CHIEF EXECUTIVE ROLE EDISON, NEW JERSEY, DECEMBER 13, 2006-New Brunswick Scientific Co., Inc. (NBS) (NASDAQ: NBSC), today announced that Chairman and Chief Executive Officer David Freedman will retire as chief executive officer of the company effective December 31, 2006. Mr. Freedman will continue to serve as non-executive chairman of the NBS Board of Directors. James T. Orcutt, who will retain his title as president, has been named successor to Freedman as CEO. "This was a very personal decision for me," Freedman said. "In 1946, my brother Sigmund and I founded New Brunswick Scientific, and it has been a labor of love for me ever since. "As difficult as this choice has been," he continued, "I am gratified that NBS has someone as well regarded and experienced as Jim to assume the added responsibilities of chief executive and lead the company forward. He has done an exceptional job since becoming president more than six years ago. With this next step in our leadership succession plan, I believe that NBS is positioned well for continued success." Commenting on the retirement, Orcutt said, "I believe I speak for everyone at New Brunswick Scientific when I say that we all admire David and are grateful for his tireless contributions to the success of NBS over the years. "It is impossible to condense a lifetime of service and dedication into just a few words," he continued, suggesting that perhaps the scope of Freedman's contributions could best be illustrated by the historical role NBS has played in the development of emerging therapies and technologies. "Under David's guidance, New Brunswick Scientific introduced the biological shaker more than half a century ago to aid in the development of the antibiotic streptomycin. Most recently, our equipment has been chosen to produce the world's first commercially licensed gene therapy drug. Certainly, without David's vision, NBS would not be the renowned industry vanguard it is today. We look forward to his continued counsel as chairman and wish him a long and healthy retirement." To be added to New Brunswick Scientific's e-mail distribution list, please click on the link below: HTTP://WWW.CLEARPERSPECTIVEGROUP.COM/CLEARSITE/NBSC/EMAILOPTIN.HTML - ------------------------------------------------------------------- ABOUT NEW BRUNSWICK SCIENTIFIC New Brunswick Scientific Co., Inc., is a leading global innovator providing a comprehensive line of equipment and instrumentation for the life science industry. The Company's products are used in the creation, maintenance and control of physical and biochemical environments required for the growth, detection and storage of microorganisms for medical, biological and chemical applications, environmental research and commercial products. Established in 1946, the Company is headquartered in Edison, New Jersey, with sales and distribution facilities located in the United States, Europe and Asia. For more information, please visit www.nbsc.com . ------------ This document contains "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by words such as "expects," "anticipates," "intends," "plans," "believes," "seeks," "estimates," "will" or words of similar meaning and include, but are not limited to, statements about the expected future business and financial performance of the Company. The forward-looking statements include a number of risks and uncertainties, which are detailed in Part I, Item 1A, "Risk Factors" of our Annual Report on Form 10-K for the year ended December 31, 2005, and other risk factors identified herein or from time to time in our periodic filings with the Securities and Exchange Commission. Forward-looking statements are based on management's current expectations and assumptions, which are inherently subject to uncertainties, risks and changes in circumstances that are difficult to predict. Actual outcomes and results may differ materially from these expectations and assumptions due to changes in global political, economic, business, competitive, market, regulatory and other factors. The Company undertakes no obligation to publicly update or review any forward-looking information, whether as a result of new information, future developments or otherwise. -----END PRIVACY-ENHANCED MESSAGE-----