Exhibit
10.3
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(the “Agreement”) is made this 5 th day of
August, 2008, by and between Albany Molecular Research, Inc., a
Delaware corporation (the “Company”), and W. Steven
Jennings (the “Executive”).
WHEREAS, the Executive is an officer and key
employee of the Company;
WHEREAS, the parties hereto desire to assure
that the Executive’s knowledge and familiarity with the
business of the Company will continue to be available to the
Company after the date hereof; and
WHEREAS, the Executive and the Company entered
into an amended and restated Employment Agreement on June 30, 2006,
and wish to amend and restate in full such agreement to address
issues raised by Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”).
NOW, THEREFORE, in consideration of the mutual
promises and covenants herein contained, the parties agree as
follows:
1. Employment . Subject to the provisions of Section 6, the
Company hereby employs the Executive and the Executive accepts such
employment upon the terms and conditions hereinafter set
forth.
2. Term of Employment . The term of the Executive’s employment
pursuant to this Agreement shall commence on and as of the date
hereof (the “Effective Date”) and shall remain in
effect for a period of two (2) years from the Effective Date (the
“Term”). The Term shall be renewed automatically for
periods of two (2) years (each a “Renewal Term”)
commencing at the third anniversary of the Effective Date and on
each subsequent anniversary thereafter, unless notice that this
Agreement will not be extended is given by either the Executive or
the Company not less than one-hundred (180) days prior to the
expiration of the Term (as extended by any Renewal Term). The
period during which the Executive serves as an employee of the
Company in accordance with and subject to the provisions of this
Agreement is referred to in this Agreement as the “Term of
Employment.”
3. Capacity .
(a) Duties . During the Term of Employment, the Executive
shall report directly to the Chairman, President and Chief
Executive Officer and (i) shall serve as an
executive officer of the Company with the
title Senior Vice President, Sales,
Marketing and Business Development, subject to election by the
Board of Directors of the Company, (ii) shall perform such duties
and responsibilities as may be reasonably determined by the Board
of Directors of the Company consistent with the Executive’s
title and position, duties and responsibilities as an executive
officer of the Company as of the Effective Date; provided
that such duties and responsibilities shall be within the general
area of the Executive’s experience and skills, (iii) upon the
request of the Board of Directors of the Company, shall serve as an
officer and/or director of the Company and any of its subsidiaries
or affiliates ( provided that the Company shall indemnify
the Executive for liabilities incurred as such in accordance with
its current practices to the fullest extent permitted by applicable
law); and (iv) shall render all services incident to the
foregoing.
(b) Extent of Service . The Executive agrees to diligently serve the
interests of the Company and shall devote substantially all of his
working time, attention, skill and energies to the advancement of
the interests of the Company and its subsidiaries and affiliates
and the performance of his duties and responsibilities hereunder;
provided that nothing in this Agreement shall be construed
as preventing the Executive from (i) investing the
Executive’s assets in any entity in a manner not prohibited
by Section 7 and in such form or manner as shall not require any
material activities on the Executive’s part in connection
with the operations or affairs of the entities in which such
investments are made, or (ii) engaging in religious, charitable or
other community or non-profit activities that do not impair the
Executive’s ability to fulfill the Executive’s duties
and responsibilities under this Agreement.
(a) Salary . During the Term of Employment, the Company
shall pay the Executive a salary (the “Base Salary”) at
an annual rate as shall be determined from time to time by the
Board of Directors of the Company or the Compensation Committee of
the Board of Directors consistent with the general policies and
practices of the Company and subject to periodic review in
accordance with the policies and practices of the Company;
provided , however , that in no event shall such rate
per annum be less than $260,000.00. Such salary shall be subject to
withholding under applicable law and shall be payable in periodic
installments in accordance with the Company’s usual practice
for its senior executives, as in effect from time to
time.
(b) Bonus . Annually, the Company shall review the
performance of the Company and of the Executive during the prior
year, and the Company may provide the Executive with additional
compensation as a bonus in accordance with any bonus plan then in
effect from time to time for senior executives of the Company. Any
such bonus plan shall have such terms as may be established in the
sole discretion of the Board of Directors of the Company or the
Compensation Committee of the Board of Directors.
5. Benefits .
(a) Regular Benefits . During the Term of Employment, the Executive
shall be entitled to participate in any and all medical, dental,
pension and life insurance plans, disability income plans and other
employee benefit plans as in effect from time to time for senior
executives of the Company. Such participation shall be subject to
(i) the terms of the applicable plan documents, (ii) generally
applicable policies of the Company and (iii) the discretion of the
Board of Directors of the Company or the administrative or other
committee provided for in, or contemplated by, such plan.
Compliance with this Section 5(a) shall in no way create or be
deemed to create any obligation, express or implied, on the part of
the Company or any subsidiary or affiliate of the Company with
respect to the continuation of any benefit or other plan or
arrangement maintained as of or prior to the Effective Date or the
creation and maintenance of any particular benefit or other plan or
arrangement at any time after the Effective Date.
(b) Reimbursement of Expenses
. The Company shall promptly
reimburse the Executive for all reasonable business expenses
incurred by the Executive during the Term of Employment in
accordance with the Company’s practices for senior executives
of the Company, as in effect from time to time.
(c) Vacation . During the Term of Employment, the Executive
shall receive at least four (4) weeks paid vacation annually or
such greater amount as is in accordance with the Company’s
practices for senior executives of the Company, as in effect from
time to time.
6. Termination of Employment
. Notwithstanding the provisions of
Section 2, the Executive’s employment under this Agreement
shall terminate under the following circumstances set forth in this
Section 6.
For purposes of this Agreement, “ Date
of Termination ” means (i) if the Executive’s
employment is terminated by his death as provided in Section 6(c),
the date of his death; (ii) if the Executive’s employment is
terminated due to his permanent disability as provided in Section
6(c), the date on which notice of termination is given; (iii) if
the Executive’s employment is terminated under Section 6(e),
sixty (60) days after the date on which notice of termination is
given; and (iv) if the Executive’s employment is terminated
under Section 6(f), the date on which the applicable cure period
expires.
(a) Mutual Consent . The Executive’s employment under this
Agreement may be terminated at any time by the mutual consent of
the Executive and the Company on such terms as both parties shall
mutually agree.
(b) Termination by the Company for Cause
. The Executive’s employment
under this Agreement may be terminated by the Company for Cause at
any time upon written notice to the Executive without further
liability on the part of the Company. For purposes of this
Agreement, a termination shall be for Cause if:
(i) the Executive shall commit an act of fraud,
embezzlement, misappropriation or breach of fiduciary duty against
the Company or any of its subsidiaries or affiliates or shall be
convicted by a court of competent jurisdiction or shall plead
guilty or nolo contendere to any felony or any crime involving
moral turpitude;
(ii) the Executive shall commit a material breach of
any of the covenants, terms or provisions of Section 7 or 8 hereof
which breach has not been cured within fifteen (15) days after
delivery to the Executive by the Company of written notice
thereof;
(iii) the Executive shall commit a material breach of
any of the covenants, terms or provisions hereof (other than
pursuant to Section 7 or 8 hereof) which breach has not been
remedied within thirty (30) days after delivery to the Executive by
the Company of written notice thereof; or
(iv) the Executive shall have disobeyed reasonable
written instructions from the Company’s Board of Directors
Compensation Committee or other appropriate governing committee
which are consistent with the terms and conditions of this
Agreement or shall have deliberately, willfully, substantially and
continuously failed to perform the Executive’s duties
hereunder, after written notice and under circumstances effectively
constituting a voluntary resignation of the Executive’s
position with the Company.
Upon termination for Cause as provided in this
Section 6(b), all obligations of the Company under this Agreement
shall thereupon immediately terminate other than any obligations
with respect to (A) earned but unpaid Base Salary and (B) the
continued rights of the Executive to receive payments due under the
Technology Development Incentive Plan. The Company shall have any
and all rights and remedies under this Agreement and applicable
law.
(c) Death; Disability . The Executive’s employment under this
Agreement may be terminated by the Company upon the earlier of
death or permanent disability (as defined below) of the Executive
continuing for a period of one hundred eighty (180) days. Upon any
such termination of the Executive’s employment, all
obligations of the Company under this Agreement shall thereupon
immediately terminate other than any obligations with respect to
(i) earned but unpaid salary through the Date of Termination, (ii)
bonus payments with respect to the calendar year within which such
termination occurred on the basis of and to the extent contemplated
in any bonus plan then in effect with respect to senior executive
officers of the Company, pro-rated on the basis of the number of
days of the Executive’s actual employment hereunder during
such calendar year through the Date of Termination, and (iii) in
the case of permanent disability, continuation at the
Company’s expense of health insurance benefits (medical and
dental) until the first anniversary of the
Date of Termination to the extent permitted under the
Company’s group health insurance policy. As used herein, the
term “permanent disability” or “permanently
disabled” means the inability of the Executive, by reason of
injury, illness or other similar cause, after reasonable
accommodation by the Company, to perform a major part of his duties
and responsibilities in connection with the conduct of the business
and affairs of the Company. The Company shall provide written
notice to the Executive of the termination of his employment
hereunder due to permanent disability. The provisions of the
Technology Development Incentive Plan shall apply to matters
related to any technical incentive compensation being received at
the time of disability or death of the Executive.
(d) Voluntary Termination by the
Executive . At any time
during the Term of Employment, the Executive may terminate his
employment under this Agreement upon sixty (60) days’ prior
written notice to the Company. Upon termination by the Executive as
provided in this Section 6(d), all obligations of the Company under
this Agreement shall thereupon immediately terminate other than any
obligations with respect to earned but unpaid Base Salary and any
payments of technology incentive compensation under the Technology
Development Incentive Plan.
(e) Termination by the Company Without
Cause . The
Executive’s employment under this Agreement may be terminated
by the Company at any time without Cause by the Company upon sixty
(60) days’ prior written notice to the Executive. Any
termination by the Company of the Executive’s employment
under this Agreement which does not constitute a termination for
Cause under Section 6(b) and is not a termination on account of
death or disability under Section 6(c) shall be deemed a
termination without Cause. Upon any such termination of the
Executive’s employment, all obligations of the Company under
this Agreement shall thereupon immediately terminate other than any
obligations with respect to earned but unpaid Base Salary and bonus
under Section 4. In addition, subject to the Executive signing a
general release of claims in a form and manner satisfactory to the
Company and the lapse of any statutory revocation period, the
Company shall continue to pay the Executive his Base Salary at the
rate then in effect pursuant to Section 4(a) for a period of one
(1) year from the Date of Termination and shall pay to the
Executive in monthly installments over each year of the one (1)
year period, an amount equal to the Executive’s cash bonus,
if any, received in respect of the year immediately preceding the
year of termination pursuant to Section 4(b) beginning with the
first payroll date that begins thirty (30) days after the Date of
Termination. The Company shall also pay 100% of the costs to
provide up to twelve (12) months of outplacement support services
at a level appropriate for the Executive’s title and
responsibility and provide the Executive with health and dental
insurance continuation at a level consistent with the level and
type the Executive had in place at the time of termination for a
period of twelve (12) months from the Date of Termination to the
extent permitted under the Company’s group health insurance
policy. Termination of the Executive without Cause shall not impact
the eligibility of the Executive to receive technology incentive
compensation payments due under the provisions of the Technology
Development Incentive Plan.
(f) Termination by the Executive upon Company
Breach . The Executive
shall have the right to terminate his employment hereunder upon
written notice to the Company in the event of (i) a material
diminution in the nature or scope of the powers, duties or
responsibilities of the Executive or (ii) a breach by the Company
of any of its material obligations hereunder, in each case after
the Executive has given written notice to the Company specifying
such default by the Company within sixty (60) days of the
occurrence of the default and giving the Company a reasonable time,
not less than thirty (30) days, to conform its performance to its
obligations hereunder. Upon any such termination of the
Executive’s employment, all obligations of the Company under
this Agreement shall thereupon immediately terminate other than any
obligations with respect to earned but unpaid Base Salary and bonus
under Section 4. In addition, subject to the Executive signing a
general release of claims in a form and manner satisfactory to the
Company and the lapse of any statutory revocation period, the
Company shall continue to pay the Executive his Base Salary at the
rate then in effect pursuant to Section 4(a) for a period of one
(1) year from the Date of Termination and shall pay to the
Executive in monthly installments over the one (1) year period, an
amount equal to the Executive’s cash bonus, if any, received
in respect of the year immediately preceding the year of
termination pursuant to Section 4(b) beginning with the first
payroll date that begins thirty (30) days after the Date of
Termination. The Company shall also pay 100% of the costs to
provide up to twelve (12) months of outplacement support services
at a level appropriate for the Executive’s title and
responsibility and provide the Executive with health and dental
insurance continuation at a level consistent with the level and
type the Executive had in place at the time of termination for a
period of twelve (12) months from the Date of Termination to the
extent permitted under the Company’s group health insurance
policy. Termination of the Executive upon Company breach shall not
impact the eligibility of the Executive to receive technology
incentive compensation payments due under the provisions of the
Technology Development Incentive Plan.
(g) Termination Pursuant to a Change of
Control . If there is a
Change of Control, as defined below, during the Term of Employment,
the provisions of this Section 6(g) shall apply and shall continue
to apply throughout the remainder of the Term (as extended by any
Renewal Term). Upon a Change in Control, the Executive will become
fully vested in any outstanding stock options, Restricted Stock or
other stock grants awarded and become fully vested in all Company
contributions made to the Executive’s 401(k), Profit Sharing
or other retirement account(s). If, within two (2) years following
a Change of Control, the Executive’s employment is terminated
by the Company without Cause (in accordance with Section 5(e)
above) or by the Executive for “Good Reason” (as
defined in Section 5(g)(ii) below), in lieu of any severance and
other benefits payable under Section 5(e) or Section 5(f), subject
to the Executive signing a general release of claims in a form and
manner satisfactory to the Company and the lapse of any statutory
revocation period, the Company shall pay to the Executive (or the
Executive’s estate, if applicable) a lump sum amount equal to
one (1) times the sum of (x) the Executive’s Base Salary at
the rate then in effect pursuant to Section 4(a), plus (y)
an amount equal to the Executive’s cash bonus, if any,
received in respect of the year immediately preceding the year of
termination pursuant to Section 4(b) within thirty (30) days of the
Date of Termination. The Company shall also pay 100% of the costs
to provide up to twelve (12) months of outplacement support
services at a level appropriate for the Executive’s title and
responsibility and provide the Executive with health and dental
insurance continuation at a level consistent with the level and
type the Executive had in place at the time of termination for a
period of twelve (12) months from the Date of Termination to the
extent permitted under the Company’s group health insurance
policy. Termination upon a Change of Control shall not impact the
eligibility of the Executive to receive technology incentive
compensation payments due under the provisions of the Technology
Development Incentive Plan.
(i) “ Change of Control ” shall
mean the occurrence of any one of the following events:
(A) any “person” as such term is used
in Sections 13(d) and
