FIRST AMENDMENT TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT is
entered into this 18th day of July, 2002, by and between Elite Pharmaceuticals,
Inc., a Delaware corporation ("Elite") and Xxxx X. Xxxxx of Mahwah, New Jersey
("Mehta").
STATEMENT OF PURPOSE
Mehta and Elite are parties to an Amended and Restated Employment
Agreement dated March 31, 2000 (the "Employment Agreement"). The parties wish to
amend the Employment Agreement to reflect certain additional changes agreed upon
between them.
AGREEMENT
Now, therefore, in consideration for the covenants exchanged herein,
the parties agree as follows:
1. Section 8d(iv) shall be amended to read as follows:
"(iv) a "change in control" of ELITE (as defined below);"
2. Section 8(d) shall be amended by adding the following text at the
end of the paragraph:
"For purposes of this Agreement, the term "change in control"
is defined to include (a) a tender offer or exchange offer
made and consummated for ownership of ELITE's stock
representing 50% or more of the combined voting power of
ELITE's outstanding securities; (b) the sale or transfer of
substantially all of ELITE's assets to another corporation
which is not a wholly-owned subsidiary of ELITE; (c) any
transaction relating to ELITE which must be described in
accordance with item 5(f) of schedule 14A of Regulation 14A of
the Securities and Exchange Commission; (d) any merger or
consolidation of ELITE with another corporation, where less
than 30% of the outstanding voting share of the surviving or
resulting corporation are owned in the aggregate by ELITE's
former stockholders; or (e) any tender offer, exchange offer,
merger, sale of assets and/or contested election which results
in a total change (excluding Mehta) in the composition of
ELITE's board of directors."
3. Section 9(c) shall be amended by adding the following text at the
end of the paragraph:
"The amount paid to MEHTA pursuant to this Section shall be
deemed severance pay in consideration of the MEHTA's past
services to ELITE and his continued services from the date of
this Agreement. MEHTA will have no duty to mitigate his
damages by seeking other employment nor will MEHTA's severance
pay hereunder be reduced or offset by any such future
earnings."
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4. Paragraph 10 shall be amended adding the following text at the end
of the paragraph:
"Additionally, for purposes of this paragraph 10, in the event
of a termination by ELITE within three years following a
change of control, "a majority of the entire membership of the
Board of Directors" shall mean "the unanimous vote of the
currently sitting directors (not including MEHTA) who held
office at the time of the change of control."
5. Section 12 shall be amended by adding the following text at
the end of the paragraph:
"Notwithstanding anything in this Agreement to the contrary,
upon termination of this Agreement pursuant to paragraph 8d,
MEHTA shall have non-exclusive inventorship rights and
copyrights in all Permitted Information (defined below),
including the right to use such Permitted Information for any
business purpose. Permitted Information includes inventions
and information of a technical nature (including but not
limited to compounds, formulations, processes, work product,
etc.) produced or developed by ELITE in the twelve months
preceding termination of this Agreement through the efforts,
in whole or in part, of MEHTA, regardless of whether such
information would otherwise be deemed confidential or would
otherwise inure to MEHTA. The rights granted hereunder shall
not include any invention for which a patent has been issued
prior to termination of employment, or which patent rights
have been expressly assigned in writing to ELITE prior to the
termination. Additionally, Elite shall retain non-exclusive
rights in any invention of Xx. Xxxxx which it shows has been
completed during the course of Xx. Xxxxx'x employment."
In witness whereof, the parties hereto have set their hands and seals
as of the date first above written.
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Xxxx X. Xxxxx
ELITE PHARMACEUTICALS, INC.
[Corporate Seal]
By:
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Title: Director, acting with
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authority of the Board of Directors
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Attest:
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Secretary
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