Exhibit 10.27
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(the “Agreement”) is made as of the 5
th day of August 2008, by and between Albany
Molecular Research, Inc., a Delaware corporation (the
“Company”), and Steven R. Hagen, Ph.D. (the
“Executive”).
WHEREAS, the Executive is a 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 Employment Agreement on March 6, 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 this
Agreement, 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 second anniversary of the Effective
Date and on each subsequent second 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 Vice President,
Pharmaceutical Development and Manufacturing and (i) shall serve as
an Executive of the Company with the title Vice President, Quality
and Analytical Chemistry (ii) shall perform such duties and
responsibilities as may be reasonably determined by Vice President,
Pharmaceutical Development and Manufacturing, consistent with the
Executive’s title and position, duties and responsibilities
as an employee 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, and (iii)
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.
4.
Compensation .
(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 Chairman, President and Chief Executive Officer or
other appropriate person of the Company consistent with the general
policies and practices of the company; provided, however, that in
no event shall such rate per annum be less than
$220,072. 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 employees of the
Company, as in effect from time to time.
(c)
Vacation . During the Term of Employment, the
Executive shall receive paid vacation annually 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 Chairman, President and Chief Executive Officer, 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, and (C) 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, 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” (as defined
in Section 6(b)) 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 twelve (12) months from the Date of Termination and
shall pay to the Executive in monthly installments over the year,
an amount equal to the Executive’s cash bonus, if any,
received in respect of the immediately preceding year 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 three (3)
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. 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 twelve (12) months
from the Date of Termination and shall pay to the Executive in
monthly installments over the next year, an amount equal to the
Executive’s cash bonus, if any, received in respect of the
immediately preceding year 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. 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
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