EXHIBIT 10.1
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of September
7, 2004 by and between Able Laboratories, Inc., a Delaware corporation (the
"Corporation"), and Xxxx Xxxxxxx, the Vice President of Regulatory Affairs
("VPRA"). The Agreement will be effective on the day the employee begins
employment (the "Effective Date").
W I T N E S S E T H:
WHEREAS, the Corporation and the VPRA desire to set forth the terms
and conditions on which, from and after the Effective Date, (i) the Corporation
shall employ the VPRA, (ii) the VPRA shall render services to the Corporation,
and (iii) the Corporation shall compensate the VPRA 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
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(a) The Corporation engages and employs the VPRA, and the VPRA
hereby accepts engagement and employment, as VPRA of the Corporation. In this
capacity, the VPRA shall be directly responsible for managing all aspects of
regulatory affairs including regulatory submissions (ANDA and 505(b)2), state
and federal registrations, drug listing, labeling maintenance and adverse drug
event reporting. Also, the VPRA will manage the regulatory aspects of all
strategic issues related to Xxxxx-Xxxxxx Act and Paragraph IV certifications and
participate as a member of the product selection committee, which will include
the Chief Scientific Officer, the Vice President Corporate Development, patent
counsel, the President and the Chief Executive Officer.
(b) The VPRA shall perform her duties hereunder from the
Corporation's executive office in Cranbury, New Jersey and report to the Senior
Vice President of Quality and Regulatory Affairs of Able Laboratories, Inc.
2. TERM
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The VPRA's employment hereunder shall be for an initial period of
five (5) years commencing on the Effective Date and continuing through the fifth
anniversary thereof, unless sooner terminated as hereinafter provided (the
"Initial Term"). Thereafter, the term and each extension will be automatically
extended for successive one-year periods, unless the Corporation gives written
notice of termination to the other party at least 60 days prior to the
expiration of the current term.
3. COMPENSATION
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(a) Subject to the terms and conditions of this Agreement, as
compensation for the performance of her duties on behalf of the Corporation, the
VPRA shall be compensated as follows:
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(i) The Corporation shall pay the VPRA a base salary
("Base Compensation") at the rate of $246,000 per annum payable no less
frequently than monthly in arrears on or before the first day of each succeeding
month. The Corporation shall provide the VPRA's first performance and merit
review in January 2006.
(ii) Upon the Effective Date the VPRA shall receive from
the Corporation an incentive option to purchase 75,000 shares of common stock of
the Corporation (the "Option Shares") at an exercise price equal to the fair
market price (closing price as quoted on the Nasdaq) per share. Such option
shall have a term of ten years and vest over five (5) years subject to the terms
contained in the Corporation's stock option plan and the stock option agreement
attached as Exhibit A hereto.
(iii) 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 VPRA pursuant to
this paragraph 3(a).
(b) The Corporation shall reimburse the VPRA for all reasonable
expenses incurred by the VPRA 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 VPRA'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. The VPRA
shall also receive $1,800 per month as car allowance.
(c) The VPRA shall be entitled to accrue paid vacation at the rate
of twenty (20) business days per annum, plus all the appropriate Corporation
holidays.
(d) The VPRA shall be eligible to participate in any Corporation
bonus plan as may be maintained in effect by the Corporation from time to time.
(e) The Corporation shall provide health insurance coverage for the
Employee and her 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 VICE PRESIDENT AND CORPORATION
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The VPRA hereby represents and warrants to the Corporation as
follows:
(a) Neither the execution and delivery of this Agreement nor the
performance by the VPRA of her 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 VPRA is a party or by which she is bound.
(b) The VPRA has the full right, power and legal capacity to enter
and deliver this Agreement and to perform her duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding obligation of
the VPRA enforceable against him in accordance with its terms.
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No approvals or consents of any persons or entities are required for the VPRA to
execute and deliver this Agreement or perform her duties and other obligations
hereunder.
The Corporation hereby represents and warrants to the VPRA as
follows:
(a) 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.
(b) The Corporation has full power and authority to enter into this
Agreement and to incur and perform its obligations hereunder.
(c) 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. INVENTIONS ASSIGNMENTS; CONFIDENTIAL INFORMATION
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All inventions, improvements, ideas, names, patents, trademarks,
copyrights, and innovations (including all data and records pertaining thereto),
whether or not reduced to writing, which the VPRA may originate, make or
conceive during the term of her employment and for a period of three (3) months
thereafter, either alone or with others and whether or not during working hours
or by the use of facilities of the Corporation, and which relate to or are or
may likely be useful in connection with the business or contemplated business of
the Corporation ("Inventions") shall be the exclusive property of the
Corporation. The VPRA hereby assigns, and, to the extent any such assignment
cannot be made at the present time, agrees to assign, to the Company all her
right, title and interest throughout the world in and to all Inventions, and to
anything tangible which evidences, incorporates, constitutes, represents or
records any such Inventions. The VPRA agrees that all such Inventions shall
constitute works made for hire under the copyright laws of the United States and
hereby assigns and, to the extent any such assignment cannot be made at present,
hereby agrees to assign to the Company all copyrights, patents and other
proprietary rights the VPRA may have in any of such Inventions, together with
the right to file for and/or own wholly without restriction United States and
foreign patents, trademark registration and copyright registration and any
patent, or trademark or copyright registration issuing thereon.
The VPRA agrees that during the course of her employment or at any
time after termination, she will not disclose or make accessible to any other
person, the Corporation's products, services and technology, both current and
under development, promotion and marketing programs, lists, trade secrets and
other confidential and proprietary business information of the Corporation or
any of its clients. The VPRA agrees: (i) not to use any such information for
herself or others; and (ii) not to take any such material or reproductions
thereof from the Corporation's facilities at any time during her employment by
the Corporation, except as required in the VPRA's duties to the Corporation. The
VPRA agrees immediately to return all such material and reproductions thereof in
her possession to the Corporation upon request and in any event upon termination
of employment. The foregoing notwithstanding, the parties acknowledge and agree
that the confidential and proprietary information of the Corporation and/or its
clients shall not include the following: (a) information already in the public
domain or hereafter disclosed to the public through no fault of the VPRA;
including but not limited to knowledge of
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(i) the business of other companies in the field, (ii) general business methods
and structures useful in operating pharmaceutical marketing companies, (iii) the
status of patents and other technology in the field other than those of the
Corporation; (b) general knowledge about the field of pharmaceutical marketing
obtained through the VPRA's academic experience, or (c) specific ideas and
projections of the field of evolution of pharmaceutical marketing.
Except with prior written authorization by the Corporation, the VPRA
agrees not to disclose or publish any of the confidential, technical or business
information or material of the Corporation, its clients or any other party to
whom the Corporation owes an obligation of confidence, at any time during or
after her employment with the Corporation.
6. TERMINATION
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(a) Subject to Paragraph 2 above, the VPRA's employment hereunder
shall begin on the Effective Date and shall continue thereafter until terminated
upon the first to occur of the following events:
(i) the death of the VPRA or the Disability of the VPRA, as
defined below; or
(ii) termination by the Board of Directors of the Corporation,
either with or without Cause (as defined below); or
(iii) voluntary resignation by the VPRA after providing the
Corporation with at least thirty days prior written notice.
(b) Upon termination pursuant to clause (a)(i) above, at least
18,750 Option Shares shall vest. "Disability" of the VPRA shall be deemed to
have occurred if the VPRA, by virtue of any injury, sickness, or physical
condition is unable to perform substantially and continuously the duties
assigned to her hereunder for more than sixty (60) consecutive or
non-consecutive days out of any consecutive twelve (12) month period, exclusive
of any accrued vacation.
(c) Upon termination pursuant to clause (a)(ii) for any reason other
than for Cause (as defined below), (i) the Corporation shall offer the VPRA
three (3) months base salary as severance.
(d) Upon termination by the Corporation during the Initial or any
renewal Term pursuant to clause (a)(ii) with Cause or upon the voluntary
resignation of the VPRA pursuant to clause (a)(iii), such termination shall be
effective immediately or on the effective date of the VPRA's notice, as the case
may be, and the VPRA will be paid a portion of the Base Compensation due through
the Termination Date, which has not been paid to her.
(e) For purposes of this Agreement, "Cause" shall mean the unlawful
conduct of the VPRA constituting a felony under the law or dishonest conduct of
the VPRA 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 VPRA's obligations (not occasioned by the VPRA's
death or Disability) hereunder after written notice by the Corporation and
failure to cure within 30 days of such notice.
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7. NOTICES
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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.
8. SEVERABILITY OF PROVISIONS
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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.
9. ENTIRE AGREEMENT; MODIFICATION
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This Agreement contains the entire agreement of the parties relating
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. No modification of this Agreement shall be valid
unless made in writing and signed by the parties hereto.
10. BINDING EFFECT
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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 Vice President of Regulatory Affairs and her legal
representatives. This Agreement constitutes a personal service agreement, and
the performance of the VPRA's obligations hereunder may not be transferred or
assigned by the VPRA.
11. NON-WAIVER
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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.
12. GOVERNING LAW; WAIVER OF JURY TRIAL
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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.
13. ATTORNEYS FEES, COSTS
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In the event a party breaches this Agreement, the breaching party
shall pay all costs and attorneys' fees incurred by the other party in
connection with such breach, whether or not any litigation is commenced.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
ABLE LABORATORIES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
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Title: Chief Financial Officer
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Agreed and Accepted
/s/ Xxxx Xxxxxxx
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Xx. Xxxx Xxxxxxx
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Grant Date: September 7, 2004
Grant #33
INCENTIVE STOCK OPTION
Granted by
Able Laboratories, Inc.
Under the
2003 Stock Incentive Plan
For valuable consideration, the receipt of which is hereby
acknowledged, Able Laboratories, Inc., a Delaware corporation (hereinafter
together with its subsidiaries, where the context permits, referred to as the
"Company"), hereby grants to the Holder named in Schedule A attached hereto the
following Incentive Stock Option:
SECTION 1. GRANT OF OPTION. Subject to the terms and conditions
hereinafter set forth, the Holder is hereby given the right and option to
purchase from the Company shares of the Company's Common Stock, $.01 par value
per share (the "Common Stock"). Schedule A attached hereto and hereby
incorporated herein sets forth with respect to this option (i) its expiration
date, (ii) its exercise price per share, (iii) the maximum number of shares that
the Holder may purchase upon exercise hereof, (iv) the vesting schedule, and (v)
certain other terms and conditions applicable to this option and incorporated
herein. This option shall terminate in all respects, and all rights and options
to purchase shares hereunder shall terminate, ten years from the Grant Date set
forth above. The right to purchase shares hereunder shall be cumulative.
This option is and shall be subject in every respect to the
provisions of the Company's 2003 Stock Incentive Plan (the "Plan"), as amended
from time to time, which is incorporated herein by reference and made a part
hereof. In the event of any conflict or inconsistency between the terms hereof
and those of the Plan, the latter shall prevail. References herein to the
Committee shall mean the Committee as defined in the Plan.
SECTION 2. EXERCISE OF OPTION. This option shall be exercised by the
delivery of written notice to the Company (the "Notice") setting forth the
number of shares with respect to which the option is to be exercised and the
address to which the certificates for such shares are to be mailed, together
with (i) delivery of a personal, certified or bank check or postal money order
payable to the order of the Company for an amount equal to the option price for
the number of shares specified in the Notice, or (ii) with the consent of the
Committee, shares of Common Stock of the Company which (a) either have been
owned by the Holder for more than six (6) months and are not subject to
restrictions under any Plan on the date of surrender or were not acquired,
directly or indirectly, from the Company, and (b) have a fair market value on
the date of surrender not greater than the option price for the shares as to
which such option is being exercised, or (iii) with the consent of the
Committee, delivering to the Company a properly
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executed Notice together with irrevocable instructions to a broker to promptly
deliver to the Company cash or a check payable and acceptable to the Company to
pay the purchase price; provided that in the event the Holder chooses to pay the
purchase price as so provided, the Holder and the broker shall comply with such
procedures and enter into such agreement of indemnity and other agreements as
the Committee shall prescribe as a condition of such payment procedure; provided
that the Company need not act upon such Notice until the Company receives full
payment of the exercise price, or (iv) with the consent of the Committee, a
personal recourse note issued by the Holder to the Company in a principal amount
equal to such aggregate exercise price and with such other terms, including
interest rate and maturity, as the Company may determine in its discretion,
provided that the interest rate borne by such note shall not be less than the
lowest applicable federal rate, as defined in Section 1274(d) of the Internal
Revenue Code of 1986, as amended, or (v) with the consent of the Committee, any
combination of such methods of payment. For the purpose of the preceding
sentence, the fair market value per share of the Common Stock so delivered to
the Company shall be the closing price per share on the date of delivery as
reported by such registered national securities exchange on which the Common
Stock is listed, or, if the Common Stock is not listed on such an exchange, as
quoted on NASDAQ; provided, that, if there is no trading on such date, the fair
market value shall be deemed to be the closing price per share on the last
preceding date on which the Common Stock was traded. If the Common Stock is not
listed on any national registered securities exchange or quoted on NASDAQ, the
fair market value of the Common Stock shall be determined in good faith by the
Committee.
SECTION 3. CONDITIONS AND LIMITATIONS. The Company, in its
discretion, may file a registration statement on Form S-8 under the Securities
Act of 1933 to register shares of Common Stock reserved for issuance under the
Plan. At any time at which such a registration statement is not in effect, it
shall be an additional condition precedent to any exercise of this option that
the Holder shall deliver to the Company a customary "investment letter"
satisfactory to the Company and its counsel in which, among other things, the
Holder shall state that the Holder is purchasing the shares for investment and
acknowledges that they are not freely transferable except in compliance with
state and federal securities laws.
SECTION 4. DELIVERY OF SHARES. Within a reasonable time after
receipt by the Company of the Notice and payment for any shares to be purchased
hereunder and, if required as a condition to exercise, the investment letter
described in Section 3, the Company will deliver or cause to be delivered to the
Holder (or if any other individual or individuals are exercising this option, to
such individual or individuals) at the address specified in the Notice a
certificate or certificates for the number of shares with respect to which the
option is then being exercised, registered in the name or names of the
individual or individuals exercising the option, either alone or jointly with
another person or persons with rights of survivorship, as the individual or
individuals exercising the option shall prescribe in writing to the Company at
or prior to such purchase; provided, however, that if any law or regulation or
order of the Securities and Exchange Commission or other body having
jurisdiction in the premises shall require the Company or the Holder (or the
individual or individuals exercising this option) to take any action in
connection with the shares then being purchased, the date for the delivery of
the certificates for such shares shall be extended for the period necessary to
take and complete such action, it being understood that the Company shall have
no obligation to take and complete any such action. The Company may imprint upon
such certificate the legend set forth in the Plan or such other legends
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referencing stock transfer restrictions which counsel for the Company considers
appropriate. Delivery by the Company of the certificates for such shares shall
be deemed effected for all purposes when the Company or a stock transfer agent
of the Company shall have deposited such certificates in the United States mail,
addressed to the Holder, at the address specified in the Notice.
SECTION 5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The existence
of this option shall not affect in any way the right or power of the Company or
its stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of Common
Stock, or any issue of bonds, debentures, preferred or prior preference stock or
other capital stock ahead of or affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
If the Company shall effect a stock dividend, stock split or similar
change in capitalization affecting the shares of Common Stock outstanding, in
any such case without receiving compensation therefor in money, services or
property, then the number, class, and price per share of shares of Common Stock
subject to this option shall be appropriately adjusted in such a manner as to
entitle the Holder to receive upon exercise of this option, for the same
aggregate cash consideration, the same total number and class of shares as the
Holder would have received as a result of the event requiring the adjustment had
the Holder exercised this option in full immediately prior to such event.
Except as hereinbefore expressly provided, the issue by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, for cash or property, or for labor or services, either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
the conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
therefor shall be made with respect to, the number or price of shares of Common
Stock then subject to option.
SECTION 6. EFFECT OF CERTAIN TRANSACTIONS. After a merger of one or
more corporations with or into the Company or after a consolidation of the
Company and one or more corporations in which the stockholders of the Company
immediately prior to such merger or consolidation own after such merger or
consolidation shares representing at least fifty percent (50%) of the voting
power of the Company or the surviving or resulting corporation, as the case may
be, the Holder shall, at no additional cost, be entitled upon exercise of this
option to receive in lieu of the shares of Common Stock as to which this option
was exercisable immediately prior to such event, the number and class of shares
of stock or other securities, cash or property (including, without limitation,
shares of stock or other securities of another corporation or Common Stock) to
which the Holder would have been entitled pursuant to the terms of the agreement
of merger or consolidation if, immediately prior to such merger or
consolidation, the Holder had been the holder of record of a number of shares of
Common Stock equal to the number of shares for which this option shall be so
exercised.
If the Company is merged with or into or consolidated with another
corporation, other than a merger or consolidation in which the stockholders of
the Company immediately prior to
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such merger or consolidation continue to own after such merger or consolidation
shares representing at least fifty percent (50%) of the voting power of the
Company or the surviving or resulting corporation, as the case may be, or if the
Company is liquidated, or sells or otherwise disposes of substantially all its
assets to another corporation while this option remains outstanding, then (i)
subject to the provisions of clause (iii) below, after the effective date of
such merger, consolidation, liquidation, sale or disposition, as the case may
be, the Holder of this option shall be entitled, upon exercise of this option,
to receive, in lieu of the shares of Common Stock as to which this option was
exercisable immediately prior to such event, the number and class of shares of
stock or other securities, cash or property (including, without limitation,
shares of stock or other securities of another corporation or Common Stock) to
which the Holder would have been entitled pursuant to the terms of the merger,
consolidation, liquidation, sale or disposition if, immediately prior to such
event, the Holder had been the holder of a number of shares of Common Stock
equal to the number of shares as to which such option shall be so exercised;
(ii) the Committee may accelerate the time for exercise of this option, so that
from and after a date prior to the effective date of such merger, consolidation,
liquidation, sale or disposition, as the case may be, specified by the
Committee, such accelerated options shall be exercisable in full; or (iii) this
option may be canceled by the Committee as of the effective date of any such
merger, consolidation, liquidation, sale or disposition provided that (x) notice
of such cancellation shall be given to the Holder and (y) the Holder shall have
the right to exercise this option to the extent that the same is then
exercisable or, if the Committee shall have accelerated the time for exercise of
this option pursuant to clause (ii) above, in full during the 10-day period
preceding the effective date of such merger, consolidation, liquidation, sale or
disposition.
SECTION 7. RIGHTS OF HOLDER. No person shall, by virtue of the
granting of this option to the Holder, be deemed to be a holder of any shares
purchasable under this option or to be entitled to the rights or privileges of a
holder of such shares unless and until this option has been exercised with
respect to such shares and they have been issued pursuant to that exercise of
this option.
The Company shall, at all times while any portion of this option is
outstanding, reserve and keep available, out of shares of its authorized and
unissued stock or reacquired shares, a sufficient number of shares of its Common
Stock to satisfy the requirements of this option; shall comply with the terms of
this option promptly upon exercise of the option rights; and shall pay all fees
or expenses necessarily incurred by the Company in connection with the issuance
and delivery of shares pursuant to the exercise of this option.
SECTION 8. TRANSFER AND TERMINATION. This option is not transferable
by the Holder otherwise than by will or under the laws of descent and
distribution. The granting of this option shall not impose upon the Company any
obligation to employ or to continue to employ the Holder. The right of the
Company to terminate the employment of the Holder shall not be diminished or
affected by reason of the fact that this option has been granted to such Holder.
This Option is exercisable, during the Holder's lifetime, only by
the Holder, and by the Holder only while the Holder is an employee of the
Company, except that if the Holder's employment by the Company terminates for
any reason other than death, Disability (as defined in the Plan) or for Cause,
the Holder shall have the right to exercise this Option within thirty (30)
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days after the date of such termination of employment (but not later than the
expiration date of this Option) with respect to shares which were purchasable by
the Holder by exercise of this Option at the time of said termination of
employment.
As used herein, "Cause" shall mean (x) any material breach by the
Holder of any agreement to which the Holder and the Company (or any parent or
subsidiary) are both parties, (y) any act (other than retirement) or omission to
act by the Holder which may have a material and adverse effect on the business
of the Company (or any parent or subsidiary) or on the Holder's ability to
perform services for the Company (or any parent or subsidiary), including,
without limitation, the commission of any crime (other than ordinary traffic
violations), or (z) any material misconduct or material neglect of duties by the
Holder in connection with the business or affairs of the Company (or any parent
or subsidiary) or any affiliate of the Company (or any such parent or
subsidiary).
In the event of the death or Disability of the Holder while the
Holder is in the employ of the Company (or any parent or subsidiary of the
Company) and before the expiration date of this option, this option shall
terminate on the earlier of its expiration date or a date one (1) year after the
date of his death or Disability. After the death of the Holder, the Holder's
executors, administrators or any person or persons to whom the Holder's option
has been transferred by will or by the laws of descent and distribution shall
have the right to exercise this option at any time prior to the earlier of the
date of expiration of this option or one (1) year after the date of the death of
the original Holder.
SECTION 9. NOTIFICATION OF DISQUALIFYING DISPOSITION. The Holder
agrees to notify the Company in writing immediately after making a Disqualifying
Disposition of any shares of Common Stock received pursuant to the exercise of
this Option. The Holder also agrees to provide the Company with any information
that the Company shall request concerning any such Disqualifying Disposition.
9.1 DISQUALIFYING DISPOSITION. A "Disqualifying
Disposition" shall have the meaning specified in Section 421(b) of the Internal
Revenue Code of 1986, as amended, or any successor provision; as of the date of
grant of this Option, a Disqualifying Disposition is any disposition (including
any sale) of such shares before the later of (a) the second anniversary of the
date of grant of this Option or (b) the first anniversary of the date on which
the Holder acquired such shares by exercising this Option, PROVIDED that such
holding period requirements terminate upon the death of the Holder.
9.2 FORFEITURE OF FAVORABLE TAX TREATMENT. The Holder
acknowledges that he or she will forfeit the favorable income tax treatment
otherwise available with respect to the exercise of this Option if he or she
makes a Disqualifying Disposition of shares received upon exercise of this
Option.
SECTION 10. WITHHOLDING OF TAXES.
10.1 UPON A DISQUALIFYING DISPOSITION. If the Company in
its discretion determines that it is obligated to withhold tax with respect to a
Disqualifying Disposition of shares of Common Stock received on exercise of this
Option, the Holder agrees that the
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Company may withhold from the Holder's wages, or other amounts due to the Holder
from the Company, the appropriate amount of federal, state or local withholding
taxes attributable to such Disqualifying Disposition.
10.2 UPON TREATMENT AS A NON-STATUTORY OPTION. If any
portion of this Option is treated as a Non-Statutory Option (as defined in the
Plan), the Holder hereby agrees that the Company may withhold from the Holder's
wages, or other amounts due to the Holder from the Company, the appropriate
amount of federal, state and local withholding taxes attributable to the
Holder's exercise of such Non-Statutory Option.
10.3 ELECTION AS TO METHOD OF SATISFYING WITHHOLDING
OBLIGATION. At the Holder's election, the amount required to be withheld may be
satisfied, in whole or in part, by (a) authorizing the Company to withhold from
shares of Common Stock to be issued pursuant to the exercise of such
Non-Statutory Option a number of shares with an aggregate fair market value that
would satisfy the minimum withholding amount due with respect to such exercise,
or (b) transferring to the Company shares of Common Stock that have been
purchased by the Holder on the open market or have been beneficially owned by
the Holder for a period of at least six months and are not then subject to
restrictions under any Plan and with an aggregate fair market value that would
satisfy the minimum withholding amount due.
10.4 AGREEMENT TO REIMBURSE COMPANY FOR WITHHOLDING
OBLIGATION. The Holder further agrees that, if the Company does not withhold an
amount from the Holder's wages sufficient to satisfy the Company's withholding
obligation, the Holder will reimburse the Company on demand, in cash, for the
amount underwithheld.
SECTION 11. NOTICE. Any notice to be given to the Company hereunder
shall be deemed sufficient if addressed to the Company and delivered by hand or
by mail to the Chief Financial Officer of the Company, 0 Xxxxxxxxx Xxxxx, Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000 or such other address as the Company may hereafter
designate.
Any notice to be given to the Holder hereunder shall be deemed
sufficient if addressed to and delivered in person to the Holder or when
deposited in the mail, postage prepaid, addressed to the Holder at the Holder's
address furnished to the Company.
SECTION 12. GOVERNMENT AND OTHER REGULATIONS. This option is subject
to all laws, regulations and orders of any governmental authority which may be
applicable thereto and, notwithstanding any of the provisions hereof, the Holder
agrees that the Holder will not exercise the option granted hereby nor will the
Company be obligated to issue or sell any shares of stock hereunder if the
exercise thereof or the issuance or sale of such shares, as the case may be,
would constitute a violation by the Holder or the Company of any such law,
regulation or order or any provision thereof. The Company shall not be obligated
to take any affirmative action in order to cause the exercise of this option or
the issuance or sale of shares pursuant hereto to comply with any such law,
regulation, order or provision.
SECTION 13. GOVERNING LAW. This option shall be governed by, and
construed and enforced in accordance with, the substantive laws of the State of
Delaware.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
executed in its name and on its behalf as of the date first written above.
Able Laboratories, Inc.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Its: Chief Financial Officer
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SCHEDULE A
ABLE LABORATORIES, INC.
2003 INCENTIVE STOCK OPTION PLAN STOCK OPTION
---------------------------------------------
Date of Grant: September 7, 2004
Name of Holder: Xxxx Xxxxxxx
Address:
Social Security Number: ______________
Maximum number of shares for which
this Option is exercisable: 75,000
Exercise (purchase) price per share: $20.82
------
Expiration date of this Option: September 7, 2014
Vesting schedule: September 7, 2005 - 15,000
March 7, 2006 - 7,500
September 7, 2006 - 7,500
December 7, 2006 - 3,750
March 7, 2007 - 3,750
June 7, 2007 - 3,750
September 7, 2007 - 3,750
December 7, 2007 - 3,750
March 7, 2008 - 3,750
June 7, 2008 - 3,750
September 7, 2008 - 3,750
December 7, 2008 - 3,750
March 7, 2009 - 3,750
June 7, 2009 - 3,750
September 7, 2009 - 3,750
OTHER TERMS AND CONDITIONS: The Holder agrees that upon request of the Company
or the underwriters managing any underwritten offering of the Company's
securities, the Holder shall agree in writing that for a period of time not to
exceed one hundred eighty (180) days from the effective date of any registration
of securities of the Company the Holder will not sell, make any short sale of,
loan, grant any option for the purchase of, or otherwise dispose of any shares
of Common Stock issued pursuant to the exercise of this option without the prior
written consent of the Company or such underwriters, as the case may be.
* * *
The undersigned Holder acknowledges receipt of the stock option of which this
Schedule A is a part.
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Print Name:
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