EXHIBIT 10.2
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of November
18, 2003, by and between Able Laboratories, Inc., a Delaware corporation (the
"Corporation"), and Raju X.X. Xxxxxxx, an individual (the "Employee"). 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 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, and the
Employee hereby accepts engagement and employment, as Vice President, Liquids
Operations of the Corporation. In the capacity of Vice President, Liquids
Operations, 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 meet, meeting production and growth objectives set by the
management.
(b) The Employee shall perform his duties hereunder from the
Corporation's executive office, or other designated location, in the New Jersey
area and report to Xxxxxxxx X. Xxxxxxx, Executive Vice President and General
Manager of the Corporation.
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 (the
"Initial Term"). Thereafter, the term and each extension will be automatically
extended for successive one-year periods (each a "Renewal Term"), 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.
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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 $165,000 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) Upon the Effective Date, the Employee shall
receive, from the Corporation, an option (the "Employee Option") to
purchase 45,000 shares of common stock of the Corporation (the "Option Shares")
at an exercise price per share equal to the last sale price of the common stock
on the Nasdaq Stock Market on the date hereof. Such option shall have a term of
ten (10) years and vest over three (3) 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 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 fifteen (15) business days per annum, plus all the appropriate
Corporation holidays.
(d) The Employee shall be eligible to participate in any Company
bonus plan as may be maintained in effect by the Company from time to time, on a
basis substantially equivalent to other members of the Company'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.
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4. REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE AND CORPORATION
(a) The Employee hereby represents and warrants to the Corporation
as follows:
(i) 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.
(ii) 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 him 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.
(b) The Corporation hereby represents and warrants to the Employee
as follows:
(i) 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.
(ii) The Corporation has full power and authority to enter into this
Agreement and to incur and perform its obligations hereunder.
(iii) 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. RELOCATION ALLOWANCE
The Corporation expects Employee to move from Pennsylvania to within
reasonable proximity to the Corporation's New Jersey headquarters. The Employee
shall receive a relocation allowance of up to $25,000 to reimburse him for any
out-of-pocket expenses incurred by Employee in connection with the move. The
reimbursement will be paid when the Employee completes the move.
6. INVENTION ASSIGNMENTS; CONFIDENTIAL INFORMATION
(a) All inventions, improvements, ideas, names, patents, trademarks,
copyrights, and innovations, including all data and records pertaining thereto,
whether or not reduced to writing,
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which the Employee may originate, make or conceive during the term of his
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
(collectively, "Inventions") shall be the exclusive property of the Corporation.
Employee hereby assigns, and, to the extent any such assignment cannot be made
at the present time, agrees to assign, to the Company all his 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 Employee 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 Employee 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.
(b) The Employee agrees that, during the course of his employment or
at any time after termination, he will not disclose or make accessible to any
other person, any information regarding the Corporation's products, services and
technology, both current and under development, promotion and marketing
programs, lists, trade secrets or any other confidential and proprietary
business information of the Corporation, or any material or reproductions
thereof, or any such information or materials of third parties in the possession
of the Company ("Confidential Information"). The Employee agrees: (i) not to
disclose or publish any Confidential Information at any time during or after his
employment with the Corporation; (ii) not to use any Confidential Information
for himself or others; and (iii) not to take any Confidential Information from
the Corporation's facilities at any time during his employment by the
Corporation, except as required in the Employee's duties to the Corporation. The
Employee agrees immediately to return all Confidential Information in his
possession to the Corporation upon request and in any event upon termination of
his employment. The foregoing notwithstanding, the parties acknowledge and agree
that Confidential Information shall not include the following: (a) information
already in the public domain or hereafter disclosed to the public through no
fault of the Employee; including but not limited to knowledge of (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 Employee's academic experience, (c) specific ideas and
projections of the field of pharmaceutical marketing's evolution, (d)
information that was available to the Employee on a non-confidential basis prior
to the Employee's employment by LiquiSource, Inc. or (e) information that
becomes available to the Employee on a non-confidential basis from a source
other than the Corporation or any of its agents, provided that such source is
not bound by a confidentiality agreement with the Corporation or any of such
agents.
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7. 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, which is thirty (30) days after the
Employee has provided written notice, will be deemed the
"Termination Date."
(b) Upon termination pursuant to clause (a)(i) above, the Employee
Option shall accelerate to the extent necessary so that at least 22,500 Option
Shares shall be exercisable. "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.
(c) Upon termination pursuant to clause (a)(ii) for any reason other
than for Cause (as defined below), (i) the Corporation shall pay the Employee
six (6) months' Base Compensation as severance; provided, that if the Employee
is terminated by the Corporation for any reason prior to the first anniversary
of the date hereof then the severance period shall be extended, to the extent
necessary, so that the period of employment plus the severance period shall be
no shorter than one year.
(d) Upon termination by the Corporation during the Initial or any
Renewal Term pursuant to clause (a)(ii) with Cause (except prior to the first
anniversary of the date hereof as provided in Section 7(c) above) 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.
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8. 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.
9. 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.
10. ENTIRE AGREEMENT; MODIFICATION
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.
11. 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.
12. 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.
13. 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.
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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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Title: Vice President and CFO
Agreed and Accepted
/s/ Raju X.X. Xxxxxxx
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Xxxx Xxxxxxx
