CONSULTING AGREEMENT
THIS AGREEMENT, originally made as of the 26th day of January, 1995 and
amended as of July 29, 2005, by and between CAMBREX CORPORATION, a Delaware
corporation, having its principal offices located at Xxx Xxxxxxxxxxx Xxxxx, Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as the "Company"), and
XXXXX X. XXXX, residing at 00 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000 (hereinafter
referred to as the "Consultant").
W I T N E S S E T H:
WHEREAS, the Consultant is currently the Chairman of the Board of the
Company, and is knowledgeable and has extensive experience in the business of
the formulation, production, marketing and distribution of chemicals and
chemical products of various kinds and descriptions, and in the managing,
advising and administering of various companies and ventures engaged in such
businesses;
WHEREAS, the Company desires to retain the consulting services of the
Consultant after his separation from active employment, to promote its growth
and development over the near and longer terms, and to provide Company with
financial, consulting and advisory services as described herein (the
"Services"), and the Consultant desires to make the Services available to
company on a regular and permanent basis, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Company and Consultant
hereby agree as follows:
Section 1. ENGAGEMENT. The Company hereby agrees to engage and retain
the Consultant to provide the Services and to perform the other duties provided
for herein, and the Consultant agrees to accept such engagement with the
Company, each on the terms and conditions set forth herein.
Section 2. THE SERVICES. The Consultant shall, at the request of the
Chief Executive Officer of the Company, perform, faithfully and diligently, the
Services and other consulting duties, provided that Consultant shall not be
required to devote more than two (2) days per week to the providing of the
Services and other consulting duties.
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Section 3. TERM. This Agreement shall commence as of the date
Consultant gives Company written Notice of Commencement, but not sooner than the
first day of January, 2000, and shall continue in full force and effect during
Consultant's lifetime, unless sooner terminated as hereinafter provided in
Section 8 of this Agreement, provided that if a "Change in Control" of the
Corporation shall occur, the Notice may be given at any time following such
Change. For the purpose of this Agreement, a "Change of Control" shall mean the
acquisition (other than by or from the Corporation or any employee benefit plan
of the Corporation) by any person or group of beneficial ownership of twenty
percent (20%) or more of the then outstanding shares of Stock of the
Corporation; or individuals who, as of the date hereof, constitute the Board of
Directors of the Corporation (the "Board" and as of the date hereof the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided that any person becoming a member of the Board subsequent to the
date hereof whose election (other than a nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the Corporation,
as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be, for purposes of this Agreement,
considered a member of the Incumbent Board; or approval by the stockholders of
the Corporation of either a reorganization, or merger, or consolidation, with
respect to which persons who were the stockholders of the Corporation
immediately prior to such reorganization, merger or consolidation do not,
immediately thereafter, own more than fifty percent (50%) of the combined voting
power entitled to vote generally in the election of directors of the
reorganized, merged or consolidated entity's then outstanding voting securities,
or a liquidation or dissolution of the Corporation, or the sale of all or
substantially all of the assets of the Corporation; or any other event or series
of events which, notwithstanding any of the foregoing provisions to the
contrary, is determined by a majority of the Incumbent Board to constitute a
Change of Control for the purposes of this Agreement.
Section 4. COMPENSATION.
4.1 In consideration of the performance of the Services and
other consulting duties, the Company shall pay the Consultant a fee of One
Hundred Thousand Dollars ($100,000.) per year, such amount to be prorated for
portions of a year, from the date Notice of Commencement is received and
continuing as provided herein, such amount to be payable on the last day of each
quarter commencing with the quarter in which Notice of Commencement is received
from Consultant. The Consultant will be entitled to continue vesting on
restricted stock previously awarded to the Consultant as described in the "PIP
Restricted Stock Award" letters dated January 23, 2003, January 22,2004 and
January 27, 2005, so long as the Services are performed over the remaining
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vesting periods of the respective PIP Restricted Stock Awards.
4.2 In the event that the Consultant shall be required to
travel to perform the Services and other consulting duties assigned to him by
the Company, the Company shall reimburse the Consultant for first class air fare
and other reasonable travel expenses and for reasonable meals and lodging
selected by the Consultant.
4.3 Except as may be required by the terms of a specific plan
or plans, on and after the date Consultant gives Notice of Commencement under
this Agreement, the Consultant shall not be considered as having employee status
during the term of this Agreement for the purpose of any employee benefit plan
applicable to the Company's employees generally.
Section 5. NON-DISCLOSURE.
5.1 Consultant acknowledges that during the term of this
Agreement, he will have access to secret and confidential information (all such
information is hereinafter referred to as "Confidential Information") with
respect to some or all of the following:
(a) product and business plans, budgets, sales forecasts,
design plans, research and engineering data, inventions,
methods, systems, processes, formulae and methods of
manufacture;
(b) customers, suppliers and employees; and
(c) trade secrets.
5.2 Consultant agrees that (except as authorized in writing by
the Company or required pursuant to legal or administrative process) he will not
reveal, divulge or make known to any person, firm or corporation any such
Confidential Information.
5.3 Consultant agrees that if after any termination of this
Agreement for any reason, he shall discover any such Confidential Information in
his possession, he shall forthwith deliver the same to the Company.
5.4 Consultant agrees that any breach or threatened breach by
him of any provision of this Section 5 shall entitle the Company, in addition to
any other legal or equitable remedies available to it, to apply to any court of
competent jurisdiction to enjoin such breach or threatened breach without
posting any bond or other security.
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Section 6. ASSIGNMENT, SUCCESSORS, ETC. This Agreement shall be binding
upon any successors (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company.
Section 7. RELATIONSHIP BETWEEN THE PARTIES. The relationship of
Consultant to the Company shall be that of an independent contractor.
Consequently, the Consultant shall have no authority to act for or on behalf of
the Company or to bind the Company without its express approval in writing.
Section 8. TERMINATION. Notwithstanding any provision hereof, this
Agreement shall terminate and the Consultant shall cease to be engaged and
retained by the Company upon the occurrence of any of the following events:
8.1 The mutual agreement of the Consultant and the Company; or
8.2 The death of the Consultant; or
8.3 The inability of Consultant to perform the Services and
other consulting duties for any reason whatever.
Section 9. CONSULTANT'S COVENANTS. During the term of this Agreement,
Consultant will not, without the prior written consent of the Company, directly
or indirectly:
9.1 own, manage, operate, control or participate in the
ownership, management, operation or control of, or be connected as a
stockholder, partner, joint venturer or otherwise with, or accept employment of
any kind with, any business which, or any business or organization any part of
which, competes with the businesses of the Company and its subsidiaries as such
businesses are now conducted, in any geographical area in which such businesses
now are or heretofore have been conducted (except that nothing herein contained
shall prevent Consultant from investing as a passive investor in securities of a
corporation which are publicly traded on a National Securities Exchange (as such
term is used in the Securities Exchange Act of 1934) provided such investment
shall at no time exceed 5% of the issued and outstanding capital stock of such
corporation); or
9.2 solicit, cause or authorize, directly or indirectly, to be
solicited, for or on behalf of himself or third parties from parties who are or
were customers for products now or heretofore produced by the businesses of the
Company and its subsidiaries and sales of products which are the same as, or
competitive with, the products now or heretofore produced by such businesses, or
accept or cause or authorize, directly or indirectly, to be
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accepted, for or on behalf of himself or third parties, and such business from
any such customer; or
9.3 solicit or cause or authorize, directly or indirectly, to
be solicited for employment for or on behalf of himself or third parties, any
person who is an employee of the Company or any of its subsidiaries as of the
date of cessation of Consultant's employment with the Company or any of its
subsidiaries.
Section 10. NOTICES. Any and all notices, designations, consents,
offers, acceptances or any other communication provided for herein shall be
sufficient if given in writing by registered or certified mail, return receipt
requested, to the party to whom such notice is directed at the party's address
first above written.
Section 11. FAILURE TO DEMAND STRICT PERFORMANCE. The Company's or the
Consultant's failure to demand strict performance and compliance with any part
of this Agreement during the Consultant's engagement shall not be deemed to be a
waiver of any of the Company's or the Consultant's rights under this Agreement
or by operation of law.
Section 12. RELIEF. In the event that either party seeks judicial
enforcement of this Agreement, seeking either legal or equitable relief, or
both, the prevailing party shall be entitled to recover from the other the
reasonable attorneys' fees and costs which the prevailing party will pay or
become obligated to pay. The Consultant consents and agrees to venue and service
of process in New Jersey.
Section 13. SEVERABILITY. If any provision or portion of this Agreement
shall be determined by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions or portions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
Section 14. NO ASSIGNMENTS. This Agreement is personal to each of the
parties hereto, and neither party may assign nor delegate any of the rights or
obligations hereunder without first obtaining the written consent of the other
party.
Section 15. ENTIRE AGREEMENT. This Agreement contains all the
understandings and representations between the parties hereto pertaining to the
subject matter hereof
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and supersedes all undertakings and agreements, whether oral or in writing, if
there be any, previously entered into by them with respect thereto.
Section 16. AMENDMENTS. No provision of this Agreement may be amended
or waived unless such amendment or waiver is agreed to in writing by the parties
hereto. Except as otherwise specifically provided in this Agreement, no waiver
by any party hereto of any breach of any condition or provision of this
Agreement shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time.
Section 17. APPLICABLE LAW. This Agreement shall be governed in all
respects, whether as to validity, construction, capacity, performance or
otherwise, by the laws of the State of New Jersey.
Section 18. HEADINGS. The Section headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.
Section 19. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original and which together shall
constitute a single instrument.
IN WITNESS WHEREOF, the Company has caused these presents to
be signed by its duly authorized corporate officers and its corporate seal to be
hereunto affixed, and the Consultant has hereunto affixed his hand and seal, the
day and year first above written.
ATTEST: CAMBREX CORPORATION
BY:
_________________________________
Xxxx X. Xxxxx
President & Chief Executive Officer
Witness:
_________________________________
XXXXX X. XXXX
Consultant
