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): January 24, 2000
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NEW BRUNSWICK SCIENTIFIC CO., INC.
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(Exact name of registrant as specified in its charter)
New Jersey 22-1630072
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(State of Incorporation) (IRS Employer Identification Number)
0-6994
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(Commission File Number)
44 Talmadge Road, Edison, New Jersey 08818
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(Address of Principal Executive Offices)
Registrant's Telephone Number: (732) 287-1200
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Item 2. Resignation of Director
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Effective January 24, 2000, Ezra Weisman, the President and Chief Executive
Officer of Registrant terminated his employment with Registrant. In that
connection Mr. Weisman also resigned as a Director of Registrant. As part of
the termination of employment, Mr. Weisman and the Registrant entered into an
agreement providing for multi-year severance payments.
Item 7. Financial Statements and Exhibits
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(c) Exhibits
10-19 Settlement Agreement and General Release with Ezra Weisman
Signatures
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: February 2, 2000
REGISTRANT: New Brunswick Scientific Co., Inc.
By:_______________________________
Samuel Eichenbaum
Vice President, Finance
<PAGE>
EXHIBIT 10-19
SETTLEMENT AGREEMENT AND GENERAL RELEASE
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This Settlement Agreement and General Release is made and entered into on
this 24 day of January, 2000 by and between Ezra Weisman residing at 4 Morris
Court, East Brunswick, New Jersey 08816 (hereinafter called the "EMPLOYEE") on
behalf of himself and his heirs and New Brunswick Scientific Co., Inc., 44
Talmadge Road, P.O. Box 4005, Edison, New Jersey 08818-4005 (hereinafter called
the "COMPANY").
INTRODUCTION
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WHEREAS, the EMPLOYEE has been employed by the COMPANY since January 30,
1962 and in the capacity of President and Chief Executive Officer of the COMPANY
since May 1, 1989, most recently under an Employment Agreement dated January 1,
1994; and
WHEREAS, the EMPLOYEE has served and continues to serve in various
capacities with the COMPANY and its affiliates as set forth in Attachment A; and
WHEREAS, the COMPANY and the EMPLOYEE now desire formally to terminate the
employment relationship and the service in those other capacities and to settle
finally and fully all matters between them pursuant to the terms set forth in
this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is agreed as follows:
TERMINATION DATE
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<PAGE>
1. a. The COMPANY agrees that the EMPLOYEE's Employment will terminate as
of the date of this Agreement.
b. Effective on the date of termination of EMPLOYEE's employment, EMPLOYEE will
resign from each position listed on Attachment A, delivering as reasonably
requested written evidence of such resignation.
SEVERANCE
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2. The COMPANY agrees
a. To pay the EMPLOYEE or his personal representative:
(i) current salary through February 4, 2000.
(ii) thereafter a severance benefit equal to three (3) times
his current annual salary of $200,000 paid over 36 months in equal weekly
installments. The severance payments are deemed wages for past services rendered
and are entitled to the highest preference permitted under the federal
bankruptcy code.
(iii) accrued and earned vacation in, the amount of approximately $92,307,
to be paid on February 2, 2000.
b. All payments made to EMPLOYEE under this Agreement will be made
by direct electronic transfer to EMPLOYEE's account which EMPLOYEE shall provide
to the COMPANY.
FRINGE BENEFITS
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3. a. The COMPANY will continue EMPLOYEE's split-dollar life insurance
coverage for 10 years after termination of EMPLOYEE's Employment. At the end of
the 10 year period EMPLOYEE shall have the option to buy the split-dollar life
insurance policy from the COMPANY.
b. So long as EMPLOYEE does not take employment (after the
termination of employment with the COMPANY) with an employer which provides
health coverage and EMPLOYEE elects to exercise his rights under COBRA, the
COMPANY will make the COBRA payments for health insurance for the EMPLOYEE at
the formula amount in effect at the time up to the full 18 month COBRA period
and thereafter the COMPANY will pay up to $5,000 annually for the health benefit
cost of EMPLOYEE until EMPLOYEE reaches age 65.
c. The EMPLOYEE will be permitted to purchase the Company car he currently uses
at its current value which is $8,095, in accordance with the provisions of his
Employment Agreement.
d. The EMPLOYEE shall receive his pension and 401(k) benefits in accordance
with the COMPANY's plans.
COMPANY STOCK AND OPTIONS
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4. a. STOCK OPTIONS. The EMPLOYEE is vested in a number of options
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for shares of the COMPANY stock which have been granted during his employment.
The COMPANY shall have provided an accounting of the exact number of options
that the EMPLOYEE has and the exercise price of those options and the latest
date on which each is exercisable prior to the effective date of this Agreement,
a copy of which is included as Attachment B.
b. SHARES OF STOCK. In addition to the EMPLOYEE's stock options, he owns a
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number of shares of COMPANY stock which has been held in escrow to cover a loan
of $165,000 for the purchase of that stock. which loan amount shall be repaid
not later than March 31, 2000.
CONSULTING
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5. Following the termination of his employment pursuant to this Agreement
the EMPLOYEE will agree to provide consulting services to the COMPANY for a
period of time and under terms and conditions to be mutually agreed upon in a
separate Consulting Agreement.
RELEASE TO COMPANY
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6. In agreeing to this General Release, EMPLOYEE is releasing all
claims, known or unknown including claims that may be valuable to him, which he
has ever had, could have had, or now has against COMPANY, individually and
collectively, up until the date of the signing of this Agreement.
EMPLOYEE hereby agrees to release the COMPANY, and any and all of their
directors, shareholders, officers, employees, agents and successors (hereinafter
collectively referred to as the "COMPANY RELEASEES") from all claims or causes
of action he may have or claim to have against the COMPANY RELEASEES which were
or could have been asserted by EMPLOYEE including, but not limited to, any and
all claims against all of the COMPANY RELEASEES in any way arising out of or
related to his employment with the COMPANY or any related entity, including, but
not limited to, any state and federal discrimination laws, including claims
under the Age Discrimination in Employment Act, the Older Workers Benefit
Protection Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act
of 1991, the Family and Medical Leave Act of 1993, the Employee Retirement
Income Security Act, the Rehabilitation Act of 1973, the Americans with
Disabilities Act of 1990, the New Jersey Law Against Discrimination, the New
Jersey Family Leave Act, the New Jersey Conscientious Employee Protection Act,
the Fair Labor Standards Act, the New Jersey Wage and Hour Act, and/or any other
state, federal, or municipal employment discrimination statutes (including but
not limited to claims based on age, sex, attainment of benefit plan rights,
race, national origin, religion, handicap, sexual orientation, sexual
harassment, marital status, retaliation, and veteran status), and/or any other
federal, state, or local statute, law, ordinance, or regulation and/or pursuant
to any other theory whatsoever, including but not limited to claims related to
breach of implied or express employment contracts, breach of the implied
covenant of good faith and fair dealing, defamation, wrongful discharge,
constructive discharge, negligence of any kind, intentional infliction of
emotional distress, whistle-blowing, estoppel or detrimental reliance, public
policy, constitutional or tort claims, violation of the penal statutes and
common law claims, claims for any economic loss including back wages, front pay,
overtime pay, fringe benefits, or any other form of compensation; all claims for
personal injury, including mental anguish, humiliation, pain and suffering,
emotional distress, damage to name or reputation or any other form of
compensatory or punitive damages, and all claims for costs and attorney's fees
and any and all other claims however denominated, regardless of legal theory or
operative facts, or pursuant to any other theory or claim whatsoever, arising
out of or related to EMPLOYEE's employment with COMPANY or the termination of
EMPLOYEE's employment from the COMPANY and/or any other occurrence from the
beginning of time to the date of this Agreement, whether presently asserted or
otherwise, excepting only EMPLOYEE's rights to vested benefits under the
COMPANY's pension and 401(k) plans.
INDEMNIFICATION
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7. a. Unless otherwise expressly prohibited by law, the COMPANY will
indemnify and hold harmless the EMPLOYEE against (i) reasonable costs,
disbursements and counsel fees and (ii) amounts paid or incurred in satisfaction
of settlements, judgments, fines and penalties in connection with any pending,
threatened or completed civil, criminal, administrative or arbitrative action,
suit or proceeding, any appeal from any such action, suit or proceeding, and any
inquiry or investigation which could lead to any such action, suit or proceeding
(Collectively a "Proceeding") involving the EMPLOYEE with respect to his being
an employee of the COMPANY or serving in any capacity listed on Attachment B (or
previously in any other capacity with the COMPANY or any of its affiliates),
including any Proceeding brought by or in the right of the COMPANY or its
stockholders, unless the acts or omissions of the EMPLOYEE which are the basis
for the EMPLOYEE being a party to the Proceedings (a) involve a breach of
EMPLOYEE's duty of loyalty (as defined in N.J.S.A. 14A:2-7[3]), (b) were not in
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good faith or involve a knowing violation of law, or (c) resulted in receipt by
EMPLOYEE of an improper personal benefit and, in the case of any Proceeding
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involving ERISA, (x) EMPLOYEE acted in good faith and (y) EMPLOYEE acted in a
manner which did not constitute a breach of fiduciary obligations as defined by
ERISA, 29 USC 1101-1114.
b. The COMPANY will continue to maintain officers and directors liability
insurance coverage which covers the EMPLOYEE's acts while employed by the
COMPANY or while serving in other capacities with the COMPANY and its affiliates
or while acting as consultant for the COMPANY.
RETURN OF COMPANY ASSETS
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7. On or before the effective date of the termination of EMPLOYEE's
employment, EMPLOYEE shall return to the COMPANY all COMPANY documents and any
equipment, instruments, or other assets in his possession. In signing this
Agreement, EMPLOYEE represents that he has done so or will have done so in a
timely and complete manner.
NON-DISPARAGEMENT
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9. Neither EMPLOYEE nor the COMPANY will engage in any speech or
conduct which disparages the other party either personally or professionally.
The COMPANY specifically agrees not to use the EMPLOYEE's name in any
disparaging or negative way. EMPLOYEE acknowledges that EMPLOYEE is identified
by name in many of the COMPANY's documents and that the COMPANY will be required
to refer to EMPLOYEE by name in future documents under the rules of the U.S.
Securities and Exchange Commission and, possibly, other regulatory agencies. In
general, except for such required uses, the COMPANY undertakes in future
communications to refer to EMPLOYEE by his title only to the extent reasonably
possible.
NO OTHER CONSIDERATION
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10. EMPLOYEE acknowledges that the only consideration he has received
for executing this Settlement Agreement and General Release is that set forth
herein. No other promise, inducement, threat, Agreement or understanding of any
kind or description has been made with him or to him to cause him to enter into
this Settlement Agreement and General Release.
FUTURE ACTIONS
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11. EMPLOYEE and COMPANY agree that neither will bring any suit or
action of any nature based on any claims which arose prior to the date of this
Agreement. However, either party may bring an action to enforce this Agreement.
If either party brings an action to enforce this Agreement, then the party who
succeeds in obtaining the relief sought shall be entitled to recover from the
other party all its attorneys' fees and costs in such action. If the COMPANY
fails to make the payments to EMPLOYEE provided for in section 1 above, then
after notice to the COMPANY and five (5) days to cure EMPLOYEE shall be entitled
to recover, in addition to costs of suit and attorneys' fees, the unpaid
payments outstanding plus interest.
MERGER OR SALE
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12. In the event that the COMPANY is to be acquired by or merged with
another company or there is a sale of more than 5% of the stock of the COMPANY
or 5% of the assets of the COMPANY then, prior to entering into an agreement to
merge, be acquired, or sell stock or assets, the COMPANY shall disclose to the
other party to that transaction the existence of this Agreement. The COMPANY
notes that the amount of the COMPANY's obligations under this Agreement will be
accrued in full as of December 31, 1999 (or such other date as may be determined
by the COMPANY's independent auditors) on its financial statements consistent
with generally accepted accounting principles.
COMPETITION AFTER EMPLOYMENT
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13. a. For one (1) year following the termination date of his employment on
January 14, 2000, the EMPLOYEE shall not advertise or offer services or perform
services or otherwise be engaged or interested in any way, directly or
indirectly, as proprietor, partner, officer, director, stockholder (except as
the owner of up to 1% of the voting securities of a publicly held corporation),
consultant, advisor, employee, principal, agent, representative, or in any other
capacity, in any business or other activity which is in any way competitive with
the business and activities of the COMPANY or any of its affiliates. If the
EMPLOYEE has a concern that potential employment may violate this agreement not
to compete, then he may contact the COMPANY and inform the COMPANY, in writing,
of the potential employment. The COMPANY shall have (10) days to respond to the
EMPLOYEE's notification, in writing, setting forth whether the COMPANY believes
that such employment would violate this non-compete and, if so, setting forth
the reasons in support of its belief. If the COMPANY fails to respond in
writing within ten (10) days, then it shall be deemed to have approved the
employment.
b. For one (1) year after the termination date of his employment, the EMPLOYEE
shall not affect the business or interests of the COMPANY by contacting,
diverting or influencing or attempting to divert or influence any of the
personnel or customers of the COMPANY or any of its subsidiaries, or any
potential customers of the COMPANY or any of its subsidiaries with whom the
EMPLOYEE had contacts or dealings during the period of employment with the
COMPANY.
VOLUNTARY AGREEMENT
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13. EMPLOYEE has carefully read and fully understands all the provisions of
this Settlement Agreement and General Release. He is voluntarily executing this
Settlement Agreement and General Release. He acknowledges that he has had the
opportunity to obtain the advice of counsel and that he has had sufficient time
to consider the Agreement and its ramifications without coercion or intimidation
before executing it.
EMPLOYEE acknowledges that he (i) has been informed by the COMPANY that he has
the right to consider this Release for a period of at least twenty-one (21) days
prior to entering into this Release, (ii) has consulted with counsel concerning
the same and (iii) hereby waives the twenty-one (21) day period. EMPLOYEE also
acknowledges that he understands that he has a right to revoke this Release for
a period of seven (7) days following EMPLOYEE's execution of the Release by
giving written notice to the Chairman of the COMPANY at its offices: 44 Talmadge
Road, Edison, New Jersey 08818.
ENTIRE AGREEMENT
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13. This Agreement contains the entire understanding of the parties and
shall supersede all other oral or written agreements or understandings between
the parties. This Agreement shall not be modified, altered or changed except
upon the express written consent of the parties hereto.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, legatees, representatives, successors,
transferees and assigns. In the event of the death of the EMPLOYEE, the
payments and benefits under this Agreement shall be paid to or provided to his
heirs. No party may assign this Agreement or any of the rights or obligations
hereunder, in whole or in part, without the written consent of the other party.
NOTICES
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13. Any notices required to be given from one party to the other shall be by
Certified Mail, Return Receipt Requested, sent to EMPLOYEE at the address set
forth above, and to the COMPANY at its address first set forth above. If either
party changes addresses, it shall be obligated to notify the other party by
Certified Mail, Return Receipt Requested, of its change in address.
FORUM FOR ENFORCEMENT
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13. The parties agree that this Settlement Agreement and General Release and
all performance under the terms of this Agreement shall be construed under the
laws of the State of New Jersey and that the Superior Court of New Jersey,
Middlesex County, shall be the sole and exclusive forum for the resolution of
all disputes arising under or relating to this Agreement and arising under or
relating to performance of its terms. Both parties expressly consent to the
jurisdiction of the Superior Court of New Jersey.
IN WITNESS WHEREOF, the parties have executed this Settlement Agreement and
General Release on the date first above written.
_______________________
EMPLOYEE Date: __________
Sworn to before me this ___
day of January, 2000
______________________
Notary Public
COMPANY
By: ___________________ Date:_____________
Title: __________________
Sworn to before me this ___
day of January, 2000
______________________
Notary Public
<PAGE>
ATTACHMENT A
page 1
The following is a list of companies and trusts of which Ezra is an officer
and/or a director:
DGI BioTechnologies LLC.
Board of Managers and bank account signatory
New Brunswick Scientific Benelux BV
Director
New Brunswick Scientific NV
Director
New Brunswick Scientific GmbH
Director
New Brunswick Scientific (UK) Ltd.
Director and bank account signatory
NBS Tech Ltd.
Director
Koch-Light Ltd.
Director
NBS Cryo-Research Ltd.
Director
NBS ULT Ltd.
Director
NBS Instruments Ltd.
Director
Ezra is a director of the following companies:
New Brunswick Scientific Co., Inc. (also member, Executive Committee)*
NBS Sales Co., Limited
New Brunswick Scientific of Delaware, Inc.*
*Bank account signatory
ATTACHMENT A
page 2
Also a bank signatory of New Brunswick Scientific West Inc.
Trusts
ESOP - Trustee and bank account signatory
Employee Stock Purchase Plan - Bank account signatory
Ezra is a signatory on the following US bank accounts:
NBS - First Union National Bank
NBS Delaware - First Union National Bank
NBS - Bank of China
DGI - First Union National Bank
- Summit Bank
NBS - Summit Bank
<PAGE>
ATTACHMENT B
The outstanding stock options as of 1/7/00 for Ezra Weisman are as follows
all amounts have been adjusted for all stock dividends:
NBS Options
Date of Grant- 8/26/97 8/26/97 8/26/97 10/16/98
3/24/94*
Exercise Price- $8.26 $12.40 $16.53 $4.72
$3.65
Number of Shares- 12,100 18,150 30,250 22,000
6,987
No. of Shares Exer.
as of 1/7/00 4,840 7,260 12,100 4,400
6,987
*Nonqualified stock option agreement.
