EXHIBIT 10.9
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of March 1,
2004 (the "Effective Date"), by and between Able Laboratories, Inc., a Delaware
corporation (the "Corporation"), and Xxxxxxx X. Xxxxxxxxxx, the Director of
Product Development (the "Employee"). The Agreement will be effective on the
date on which the employee begins employment.
W I T N E S S E T H:
WHEREAS, the Corporation desires to provide for the continuing
employment of Employee by the Corporation, and the Corporation and the Employee
desire to set forth the terms and conditions on which, from and after the
Effective Date, (i) the Corporation shall employ the Employee, (ii) the Employee
shall render services to the Corporation, and (iii) the Corporation shall
compensate the Employee for such services;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, the parties agree as follows:
1. EMPLOYMENT; DUTIES
(a) The Corporation engages and employs the Employee Xxxxxxx X.
Xxxxxxxxxx as Director of Product Development, and the Employee hereby accepts
engagement and employment of the Corporation. In the capacity of Director of
Product Development Xxxxxxx X. Xxxxxxxxxx, the Employee, will perform all such
executive and administrative duties and services for the Corporation as are
consistent with that position and as are assigned to the Employee from time to
time by the Corporation, including, but not limited to meeting production and
growth objectives set by the management.
2. TERM
The Employee's employment hereunder shall be for an initial period
of three (3) years commencing on the Effective Date and continuing through the
third anniversary thereof, unless sooner terminated as hereinafter provided in
Section 5 below (the "Initial Term"). Thereafter, the term and each extension
will be automatically extended for successive one-year periods (each a "Renewal
Term"), subject to the provision of Section 5, unless either party gives written
notice of termination to the other party at least sixty (60) days prior to the
expiration of the Initial Term or the Renewal Term, as the case may be.
3. COMPENSATION
(a) Subject to the terms and conditions of this Agreement, as
compensation for the performance of his duties on behalf of the Corporation, the
Employee shall be compensated as follows:
(i) The Corporation shall pay the Employee a base salary
("Base Compensation") at the rate of $200,000 per annum payable no less
frequently than monthly in arrears on or before the first day of each succeeding
month, plus other compensation as described below in Section 5.
(ii) The Corporation shall withhold all applicable
federal, state and local taxes, social security and workers' compensation
contributions and such other amounts as may be required by law or agreed upon by
the parties with respect to the compensation payable to the Employee pursuant to
this paragraph 3(a).
(b) The Corporation shall reimburse the Employee for all reasonable
expenses incurred by the Employee in furtherance of the business and affairs of
the Corporation, including reasonable travel and entertainment, cell phone and
other incidental expenses and all such other expenses against receipt by the
Corporation of appropriate vouchers or other proof of the Employee's
expenditures and otherwise in accordance with such expense reimbursement policy
as may from time to time be adopted by the Board of Directors of the
Corporation.
(c) The Employee shall be entitled to accrue paid vacation at the
rate of twenty (20) business days per annum, plus all designated Corporation
holidays.
(d) The Employee shall be eligible to participate in any Corporation
bonus plan as may be maintained in effect by the Corporation from time to time,
on a basis substantially equivalent to other members of the Corporation's senior
management.
(e) The Corporation shall provide health insurance coverage for the
Employee and his family, and such other employee benefit plans and/or fringe
benefits which, from time to time, the Corporation makes available to its senior
management employees.
4. REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE AND CORPORATION
The Employee hereby represents and warrants to the Corporation as
follows:
(a) Neither the execution and delivery of this Agreement nor the
performance by the Employee of his duties and other obligations hereunder
violate or will violate any statute, law, determination or award, or conflict
with or constitute a default under (whether immediately, upon the giving of
notice or lapse of time or both) any prior employment agreement, contract, or
other instrument to which the Employee is a party or by which he is bound.
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(b) The Employee has the full right, power and legal capacity to
enter and deliver this Agreement and to perform his duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding obligation of
the Employee enforceable against his in accordance with its terms. No approvals
or consents of any persons or entities are required for the Employee to execute
and deliver this Agreement or perform his duties and other obligations
hereunder.
The Corporation hereby represents and warrants to the Employee as
follows:
(c) The Corporation is duly organized, validly existing and in good
standing under the laws of the State of Delaware, with all requisite corporate
power and authority to own its properties and conduct its business in the manner
presently contemplated.
(d) The Corporation has full power and authority to enter into this
Agreement and to incur and perform its obligations hereunder.
(e) The execution, delivery and performance by the Corporation of
this Agreement does not conflict with or result in a breach or violation of or
constitute a default under (whether immediately, upon the giving of notice or
lapse of time or both) the certificate of incorporation or by-laws of the
Corporation, or any agreement or instrument to which the Corporation is a party
or by which the Corporation of any of its properties may be bound or affected.
5. TERMINATION
(a) The Employee's employment hereunder shall terminate upon the
first to occur of the following events:
(i) the death of the Employee or the Disability of the Employee,
as defined below; or
(ii) termination by the Corporation, either with or without Cause
(as defined below); or
(iii) voluntary resignation by the Employee after providing the
Corporation with at least thirty (30) days prior written
notice.
The date on which any of the events described in Section 5(a)(i) or
5(a)(ii) above, or the date that is thirty (30) days after the Employee has
provided written notice under Section 5(a)(iii) above, will be deemed the
"Termination Date."
(b) "Disability" of the Employee shall be deemed to have occurred if
the Employee, by virtue of any injury, sickness, or physical condition is unable
to perform substantially and continuously the duties assigned to his hereunder
for more than sixty (60) consecutive or non-consecutive days out of any
consecutive twelve (12) month period, exclusive of any accrued vacation.
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(c) Upon termination pursuant to clause (a)(ii) for any reason other
than for Cause (as defined below), (i) the Corporation shall offer the Employee
three (3) months' Base Compensation as severance.
(d) Upon termination by the Corporation pursuant to clause (a)(ii)
for Cause or upon the voluntary resignation of the Employee pursuant to clause
(a)(iii), such termination shall be effective immediately or on the effective
date of the Employee's notice, as the case may be, and the Employee will be paid
a portion of the Base Compensation due through the Termination Date, which has
not been paid to him.
(e) For purposes of this Agreement, "Cause" shall mean the unlawful
conduct of the Employee constituting a felony under the law or dishonest conduct
of the Employee involving moral turpitude and causing material harm to the
Corporation, willful, reckless or grossly negligent misconduct or
insubordination which is or is reasonably likely to be injurious to the
Corporation, monetarily or otherwise, continuing after written notice thereof by
the Board of Directors or a material breach of any of the Employee's obligations
(not occasioned by the Employee's death or Disability) hereunder after written
notice by the Corporation and failure to cure within thirty (30) days of such
notice.
6. NOTICES
Any notice or other communication under this Agreement shall be in
writing and shall be deemed to have been given upon receipt by the other party.
7. SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, the remaining conditions and provisions or portions thereof
shall nevertheless remain in full force and effect and enforceable to the extent
they are valid, legal and enforceable, and no provision shall be deemed
dependent upon any other covenant or provision unless so expressed herein.
8. ENTIRE AGREEMENT; MODIFICATION
This Agreement contains the entire agreement of the Corporation and
the Employee with respect to the subject matter hereof, and the parties hereto
have made no agreements, representations or warranties relating to the subject
matter of this Agreement, which are not set forth herein. As of the Effective
Date, this Agreement supersedes any prior agreement or arrangement relative to
the Employee's employment with the Corporation; provided, that the Proprietary
Information, Confidentiality and Inventions Agreement dated as of June 8, 1998
by and between the Employee and the Corporation remains in full force and
effect. No modification or waiver of any provisions hereof shall be made unless
made in writing and signed by the Employee and a properly authorized
representative of the Corporation.
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9. BINDING EFFECT
The rights, benefits, duties and obligations under this Agreement
shall inure to, and be binding upon, the Corporation, its successors and
assigns, and upon the Employee and his legal representatives. This Agreement
constitutes a personal service agreement, and the performance of the Employee's
obligations hereunder may not be transferred or assigned by the Employee.
10. NON-WAIVER
The failure of either party to insist upon the strict performance of
any of the terms, conditions and provisions of this Agreement shall not be
construed as a waiver or relinquishment of future compliance therewith, and said
terms, conditions and provisions shall remain in full force and effect. No
waiver of any term or condition of this Agreement on the part of either party
shall be effective for any purpose whatsoever unless such waiver is in writing
and signed by such party.
11. GOVERNING LAW; WAIVER OF JURY TRIAL
This Agreement shall be governed by, and construed and interpreted
in accordance with, the laws of the State of New Jersey without regard to
principles of conflict of laws. The parties irrevocably waive all right to a
trial by jury in any suit, action, or other proceeding hereafter instituted by
or against such party in respect of its obligations hereunder or the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
ABLE LABORATORIES, INC.
By: /s/ Xxxxxxxxx X. Wadaker
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Title: President and CEO
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EMPLOYEE
Agreed and Accepted
/s/ Xxxxxxx X. Xxxxxxxxxx
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