Exhibit 10.24


 


EMPLOYMENT AGREEMENT


 


This AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (the “Agreement”) is made this 23rd day of March 2007,
by and between Albany
Molecular Research, Inc., a Delaware corporation (the “Company”), and
Jonathan D. Evans (the “Executive”).


 


WHEREAS, the Executive is
an officer and key employee of the Company;


 


WHEREAS, the parties
hereto desire to assure that the Executive’s knowledge and familiarity with the
business of the Company will continue to be available to the Company after the
date hereof; and


 


NOW, THEREFORE, in
consideration of the mutual promises and covenants herein contained, the
parties agree as follows:


 


1.             Employment. Subject to the provisions of this
agreement, the Company hereby employs the Executive and the Executive accepts
such employment upon the terms and conditions hereinafter set forth.


 


2.             Term of Employment. The term of the Executive’s
employment pursuant to this Agreement shall commence on and as of the date
hereof (the “Effective Date”) and shall remain in effect for a period of two (2) years
from the Effective Date (the “Term”). The Term shall be renewed automatically
for periods of two (2) years (each a “Renewal Term”) commencing at the
second anniversary of the Effective Date and on each subsequent second
anniversary thereafter, unless notice that this Agreement will not be extended
is given by either the Executive or the Company not less than one-hundred (180)
days prior to the expiration of the Term (as extended by any Renewal Term); provided
that if the Company elects not to extend this Agreement for any reason, the
Executive shall receive the payments set forth in Section 6(e). The period
during which the Executive serves as an employee of the Company in accordance
with and subject to the provisions of this Agreement is referred to in this
Agreement as the “Term of Employment.”


 


3.             Capacity.


 


(a)           Duties. During the Term of
Employment, the Executive shall report directly to the Chairman, President and
Chief Executive Officer and (i) shall serve  as
an Executive of  the Company with the title  Vice President, Pharmaceutical Development and
Manufacturing (ii) shall perform such duties and responsibilities as may
be reasonably determined by Chairman, President and Chief Executive Officer,
consistent with the Executive’s title and position, duties and responsibilities
as an employee of the Company as of the Effective Date; provided that
such duties and responsibilities shall be within the general area of the
Executive’s experience and skills, and (iii) shall render all services
incident to the foregoing.


 


(b)           Extent of Service. The
Executive agrees to diligently serve the interests of the Company and shall
devote substantially all of his working time, attention, skill and energies to
the advancement of the interests of the Company and its subsidiaries and
affiliates and the performance of his duties and responsibilities hereunder; provided
that nothing in this Agreement shall be construed as preventing the Executive
from (i) investing the Executive’s assets in any entity in a manner not
prohibited by Section 7 and in such form or manner as shall not require
any material activities on the Executive’s part in connection with the
operations or affairs of the entities in which such investments are made, or (ii) engaging
in religious, charitable or other community or non-profit activities that do
not impair the Executive’s ability to fulfill the Executive’s duties and
responsibilities under this Agreement.


 

















 


4.                                       Compensation.


 


(a)           Salary. During the Term of
Employment, the Company shall pay the Executive a salary (the “Base Salary”) at
an annual rate as shall be determined from time to time by the Chairman,
President and Chief Executive Officer or other appropriate person of the
Company consistent with the general policies and practices of the company;
provided, however, that in no event shall such rate per annum be less than
$240,000. Such salary shall be subject to withholding under applicable law and
shall be payable in periodic installments in accordance with the Company’s
usual practice for its senior executives, as in effect from time to time.


 


(b)           Bonus. Commencing on the first
annual compensation determination date established by the Company during the
Term of Employment and on each such date thereafter, the Company shall review
the performance of the Company and of the Executive during the prior year, and
the Company may provide the Executive with additional compensation as a bonus
in accordance with any bonus plan then in effect from time to time for senior executives
of the Company. Any such bonus plan shall have such terms as may be established
in the sole discretion of the Board of Directors of the Company or the
Compensation Committee of the Board of Directors.


 


5.             Benefits.


 


(a)           Regular Benefits. During the
Term of Employment, the Executive shall be entitled to participate in any and
all medical, dental, pension and life insurance plans, disability income plans
and other employee benefit plans as in effect from time to time for senior
executives of the Company. Such participation shall be subject to (i) the
terms of the applicable plan documents, (ii) generally applicable policies
of the Company and (iii) the discretion of the Board of Directors of the
Company or the administrative or other committee provided for in, or
contemplated by, such plan. Compliance with this Section 5(a) shall
in no way create or be deemed to create any obligation, express or implied, on
the part of the Company or any subsidiary or affiliate of the Company with
respect to the continuation of any benefit or other plan or arrangement
maintained as of or prior to the Effective Date or the creation and maintenance
of any particular benefit or other plan or arrangement at any time after the
Effective Date.


 


(b)           Reimbursement of Expenses. The
Company shall promptly reimburse the Executive for all reasonable business
expenses incurred by the Executive during the Term of Employment in accordance
with the Company’s practices for employees of the Company, as in effect from
time to time.


 


(c)           Vacation. During the Term of
Employment, the Executive shall receive paid vacation annually in accordance
with the Company’s practices for senior executives of the Company, as in effect
from time to time, provided however that the executive will receive not less
than three (3) weeks of vacation each year.


 


6.             Termination of Employment. Notwithstanding the
provisions of Section 2, the Executive’s employment under this Agreement
shall terminate under the following circumstances set forth in this Section 6.


 


For purposes of this
Agreement, “Date of Termination” means (i) if the Executive’s
employment is terminated by his death as provided in Section 6(c), the
date of his death; (ii) if the Executive’s employment is terminated due to
his permanent disability as provided in Section 6(c), the date on which
notice of termination is given; (iii) if the Executive’s employment is
terminated under Section 6(e), sixty (60) days after the date on which
notice of termination is given; and (iv) if the Executive’s employment is
terminated under Section 6(f), the date on which the applicable cure
period expires.


 


(a)           Mutual Consent. The Executive’s
employment under this Agreement may be terminated at any time by the mutual
consent of the Executive and the Company on such terms as both parties shall
mutually agree.


 


(b)           Termination by the Company for
Cause. The Executive’s employment under this Agreement may be terminated by
the Company for Cause at any time upon written notice to the Executive without
further liability on the part of the Company. For purposes of this Agreement, a
termination shall be for Cause if:


 


 


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(i)            the Executive shall commit an act of
fraud, embezzlement, misappropriation or breach of fiduciary duty against the
Company or any of its subsidiaries or affiliates or shall be convicted by a
court of competent jurisdiction or shall plead guilty or nolo contendere to any
felony or any crime involving moral turpitude;


 


(ii)           the Executive shall commit a material
breach of any of the covenants, terms or provisions of Section 7 or 8
hereof which breach has not been cured within fifteen (15) days after delivery
to the Executive by the Company of written notice thereof;


 


(iii)          the Executive shall commit a material
breach of any of the covenants, terms or provisions hereof (other than pursuant
to Section 7 or 8 hereof) which breach has not been remedied within thirty
(30) days after delivery to the Executive by the Company of written notice
thereof; or


 


(iv)          the Executive shall have disobeyed
reasonable written instructions from the Chairman, President and Chief
Executive Officer, or other appropriate governing committee which are
consistent with the terms and conditions of this Agreement or shall have
deliberately, willfully, substantially and continuously failed to perform the
Executive’s duties hereunder, after written notice and under circumstances
effectively constituting a voluntary resignation of the Executive’s position
with the Company.


 


Upon termination for
Cause as provided in this Section 6(b), all obligations of the Company
under this Agreement shall thereupon immediately terminate other than any
obligations with respect to (A) earned but unpaid Base Salary and (B) the
continued rights of the Executive to receive payments due under the Technology
Development Incentive Plan. The Company shall have any and all rights and
remedies under this Agreement and applicable law.


 


(c)           Death; Disability. The
Executive’s employment under this Agreement may be terminated by the Company
upon the earlier of death or permanent disability (as defined below) of the
Executive continuing for a period of one hundred eighty (180) days. Upon any
such termination of the Executive’s employment, all obligations of the Company
under this Agreement shall thereupon immediately terminate other than any
obligations with respect to (i) earned but unpaid salary through the Date
of Termination; provided that Base Salary payments as provided by Section 4(a) shall
continue to be made to the Executive (or his estate) through the Term (as
extended by any Renewal Term) but only if and to the extent payments to the
Executive or his estate under any applicable disability or life insurance
policy is less than the amount the Executive would otherwise receive as Base
Salary hereunder, (ii) bonus payments with respect to the calendar year
within which such termination occurred on the basis of and to the extent
contemplated in any bonus plan then in effect with respect to senior executive
officers of the Company, pro-rated on the basis of the number of days of the
Executive’s actual employment hereunder during such calendar year through the
Date of Termination, and (iii) in the case of permanent disability,
continuation at the Company’s expense of health insurance benefits (medical and
dental) until the  first anniversary of the Date of
Termination to the extent permitted under the Executive’s group health
insurance policy. As used herein, the term “permanent disability” or “permanently
disabled” means the inability of the Executive, by reason of injury, illness or
other similar cause, after reasonable accommodation by the Company, to perform
a major part of his duties and responsibilities in connection with the conduct
of the business and affairs of the Company. The Company shall provide written
notice to the Executive of the termination of his employment hereunder due to
permanent disability. The provisions of the Technology Development Incentive
Plan shall apply to matters related to any technical incentive compensation
being received at the time of disability or death of the executive.


 


(d)           Voluntary Termination by the
Executive. At any time during the Term of Employment, the Executive may
terminate his employment under this Agreement upon sixty (60) days’ prior written
notice to the Company. Upon termination by the Executive as provided in this Section 6(d),
all obligations of the Company under this Agreement shall thereupon immediately
terminate other than any obligations with respect to earned but unpaid Base
Salary and any payments of technology incentive compensation under the
Technology Development Incentive Plan.


 


 


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(e)           Termination
by the Company Without Cause. The Executive’s employment under this
Agreement may be terminated by the Company at any time without Cause by the
Company upon sixty (60) days’ prior written notice to the Executive. Upon any
such termination of the Executive’s employment, all obligations of the Company
under this Agreement shall thereupon immediately terminate other than any
obligations with respect to earned but unpaid Base Salary and bonus under Section 4.
In addition, subject to the Executive signing a general release of claims in a
form and manner satisfactory to the Company and the lapse of any statutory
revocation period, the Company shall continue to pay the Executive his Base
Salary at the rate then in effect pursuant to Section 4(a) for a
period of twelve (12) months from the Date of Termination and shall pay to the
Executive in monthly installments over the year, an amount equal to the
Executive’s cash bonus, if any, received in respect of the year immediately
preceding the year of termination pursuant to Section 4(b). Effective on
the date of termination, the Executive will become fully vested in any
outstanding stock options, Restricted Stock or other stock grants awarded and
become fully vested in all Company contributions made to the Executive’s
401(k), Profit Sharing or other retirement account (s) The Company shall
also pay 100% of the costs to provide up to three (3) months of
outplacement support services at a level appropriate for the Executive’s title
and responsibility and provide the Executive with health and dental insurance
continuation at a level consistent with the level and type the Executive had in
place at the time of termination for a period of twelve (12) months from the
date of termination. Termination of the Executive without Cause shall not
impact the eligibility of the Executive to receive technology incentive
compensation payments due under the provisions of the Technology Development
Incentive Plan.


 


(f)      Termination
by the Executive upon Company Breach. The Executive shall have the right to
terminate his employment hereunder upon written notice to the Company in the
event of (i) a material adverse change or diminution in the nature or
scope of the powers, functions, titles, duties or responsibilities of the
Executive that is adverse to the Executive or (ii) a breach by the Company
of any of its material obligations hereunder, in each case after the Executive
has given written notice to the Company specifying such default by the Company
and giving the Company a reasonable time, not less than thirty (30) days, to
conform its performance to its obligations hereunder. The failure of the
Executive to give notice of any of the foregoing events shall not under any
circumstances constitute a waiver of the Executive’s right to terminate his
employment and receive the amounts payable under this Section 6(f). Upon
any such termination of the Executive’s employment, all obligations of the
Company under this Agreement shall thereupon immediately terminate other than
any obligations with respect to earned but unpaid Base Salary and bonus under Section 4.
In addition, subject to the Executive signing a general release of claims in a
form and manner satisfactory to the Company and the lapse of any statutory
revocation period, the Company shall continue to pay the Executive his Base
Salary at the rate then in effect pursuant to Section 4(a) for a
period of twelve (12) months from the Date of Termination and shall pay to the
Executive in monthly installments over the next year, an amount equal to the
Executive’s cash bonus, if any, received in respect of the year immediately
preceding the year of termination pursuant to Section 4(b). Effective on
the date of termination, the Executive will become fully vested in any
outstanding stock options, Restricted Stock or other stock grants awarded and
become fully vested in all Company contributions made to the Executive’s
401(k), Profit Sharing or other retirement account (s)The Company shall also
pay 100% of the costs to provide up to twelve (12) months of outplacement
support services at a level appropriate for the Executive’s title and responsibility
and provide the Executive with health and dental insurance continuation at a
level consistent with the level and type the Executive had in place at the time
of termination for a period of twelve (12) months from the date of termination.
Termination of the Executive upon Company breach shall not impact the
eligibility of the Executive to receive technology incentive compensation
payments due under the provisions of the Technology Development Incentive Plan.


 


(g)           Termination Pursuant to a Change of
Control. If there is a Change of Control, as defined below, during the Term
of Employment, the provisions of this Section 6(g) shall apply and
shall continue to apply throughout the remainder of the Term (as extended by
any Renewal Term). Upon a Change in Control, the Executive will become fully
vested in any outstanding stock options, Restricted Stock or other stock grants
awarded and become fully vested in all Company contributions made to the
Executive’s 401(k), Profit Sharing or other retirement account (s). If, within
two (2) years following a Change of Control, the Executive’s employment is
terminated by the Company without Cause (in accordance with Section 6(b) above)
or by the Executive for “Good Reason” (as defined in Section 6(g)(ii) below),
in lieu of any severance and other benefits payable under Section 6(e) or
Section 6(f), subject to the Executive signing a general release of claims
in a form and manner satisfactory to the Company and the lapse of any statutory
revocation period, the Company shall pay to the Executive (or the


 


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Executive’s estate, if
applicable) a lump sum amount equal to one (1) times the sum of (x) the
Executive’s Base Salary at the rate then in effect pursuant to Section 4(a),
plus (y) an amount equal to the Executive’s cash bonus, if any,
received in respect of the year immediately preceding the year of termination
pursuant to Section 4(b). The Company shall also pay 100% of the costs to
provide up to twelve (12) months of outplacement support services at a level
appropriate for the Executive’s title and responsibility and provide the
Executive with health and dental insurance continuation at a level consistent
with the level and type the Executive had in place at the time of termination
for a period of twelve (12) months from the date of termination. Termination
upon a Change of Control shall not impact the eligibility of the Executive to
receive technology incentive compensation payments due under the provisions of
the Technology Development Incentive Plan.


 


(i)            “Change of Control” shall
mean the occurrence of any one of the following events:


 


(A)          any “person” as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the “Act”) (other than the Company, any of its subsidiaries, or any
trustee, fiduciary or other person or entity holding securities under any
employee benefit plan or trust of the Company or any of its subsidiaries and
other than Thomas E. D’Ambra, Ph.D.), together with all “affiliates” and “associates”
(as such terms are defined in Rule 12b-2 under the Act) of such person,
shall become the “beneficial owner” (as such term is defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company representing
twenty-five percent (25%) or more of the combined voting power of the Company’s
then outstanding securities having the right to vote in an election of the
Company’s Board of Directors (“Voting Securities”) (in such case other than as
a result of an acquisition of securities directly from the Company);


 


(B)           persons who, as of the Effective
Date, constitute the Company’s Board of Directors (the “Incumbent Directors”)
cease for any reason, including, without limitation, as a result of a tender
offer, proxy contest, merger or similar transaction, to constitute at least a
majority of the Board; provided that any person becoming a director of
the Company subsequent to the Effective Date shall be considered an Incumbent
Director if such person’s election was approved by or such person was nominated
for election by either (1) a vote of at least a majority of the Incumbent
Directors or (2) a vote of at least a majority of the Incumbent Directors
who are members of a nominating committee comprised, in the majority, of
Incumbent Directors; but provided  further that any such person
whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of members of the Board of
Directors or other actual or threatened solicitation of proxies or consents by
or on behalf of a person other than the Board, including by reason of agreement
intended to avoid or settle any such actual or threatened contest or
solicitation, shall not be considered an Incumbent Director; or


 


(C)           consummation of (1) any
consolidation or merger of the Company where the stockholders of the Company,
immediately prior to the consolidation or merger, would not, immediately after
the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3
under the Act), directly or indirectly, shares representing in the aggregate
more than fifty percent (50%) of the voting shares of the corporation issuing
cash or securities in the consolidation or merger (or of its ultimate parent
corporation, if any), or (2) any sale, lease, exchange or other transfer
(in one transaction or a series of transactions contemplated or arranged by any
party as a single plan) of all or substantially all of the assets of the
Company; or


 


(D)          the stockholders of the Company shall
approve any plan or proposal for the liquidation or dissolution of the Company.


 


Notwithstanding the
foregoing, a “Change of Control” shall not be deemed to have occurred for
purposes of the foregoing clause (A) solely as the result of an acquisition
of securities by the Company which, by reducing the number of shares of Voting
Securities outstanding, increases the proportionate number of shares of Voting
Securities beneficially owned by any person to twenty-five percent (25%) or
more of the combined voting power of all then outstanding Voting Securities; provided,
however, that if any person referred to in this sentence shall
thereafter become the beneficial owner of any additional shares of Voting
Securities (other than pursuant to a stock split, stock dividend, or similar
transaction or as a result of an acquisition of securities directly from the
Company), then a “Change of Control” shall be deemed to have occurred for
purposes of the foregoing clause (A).


 


 


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(ii)           “Good Reason” shall mean the
occurrence of any of the following:


 


(A)          a material adverse change or
diminution in the nature or scope of the powers, functions, titles, duties or
responsibilities of the Executive that is adverse to the Executive;


 


(B)           a breach by the Company of any of its
material obligations hereunder;


 


(C)           the failure by the Company to obtain
an effective agreement from any successor to assume and agree to perform this
Agreement; or


 


(D)          the relocation of the offices at which
the Executive is principally employed as of the Change of Control to a location
more than fifty (50) miles from such offices, which relocation is not approved
by the Executive.


 


(iii)          The Executive shall provide the
Company with reasonable notice and an opportunity to cure any of the events
listed in Section 6(g)(ii) and shall not be entitled to compensation
pursuant to this Section 6(g) unless the Company fails to cure within
a reasonable period of not less than thirty (30) days; and


 


(h)           Gross Up Payment.


 


(i)            In the event it shall be determined
that any compensation, payment or distribution by the Company to or for the
benefit of the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (the “Severance
Payments”), would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the “Excise Tax”), then the Executive shall be
entitled to receive an additional payment (a “Gross-Up Payment”) such that the
net amount retained by the Executive, after deduction of any Excise Tax on the
Severance Payments, any Federal, state, and local income tax, employment tax
and Excise Tax upon the payment provided by this subsection, and any interest
and/or penalties assessed with respect to such Excise Tax, shall be equal to
the Severance Payments.


 


(ii)           Subject to the provisions of
subsection (iii) below, all determinations required to be made under this
subsection (ii), including whether a Gross-Up Payment is required and the
amount of such Gross-Up Payment, shall be made by a nationally recognized
accounting firm selected by the Company (the “Accounting Firm”), which shall
provide detailed supporting calculations both to the Company and the Executive
within fifteen (15) business days of the Date of Termination, if applicable, or
at such earlier time as is reasonably requested by the Company or the
Executive. For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay Federal income taxes at the highest marginal
rate of Federal income taxation applicable to individuals for the calendar year
in which the Gross-Up Payment is to be made, and state and local income taxes
at the highest marginal rates of individual taxation in the state and locality
of Executive’s residence on the date of the Terminating Event, net of the
maximum reduction in Federal income taxes which could be obtained from
deduction of such state and local taxes. The initial Gross-Up Payment, if any,
as determined pursuant to this subsection (ii), shall be paid to the Executive
within five (5) days of the receipt of the Accounting Firm’s
determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made (an
“Underpayment”). In the event that the Company exhausts its remedies pursuant
to subsection (iii) below and the Executive thereafter is required to make
a payment of any Excise Tax, the Accounting Firm shall determine the amount of
the Underpayment that has occurred, consistent with the calculations required
to be made hereunder, and any such Underpayment, and any interest and penalties
imposed on the Underpayment and required to be paid by the Executive in
connection with the proceedings described in subsection (iii) below, shall
be promptly paid by the Company to or for the benefit of the Executive.


 


 


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(iii)          The Executive shall notify the Company
in writing of any claim by the Internal Revenue Service that, if successful,
would require the payment by the Company of the Gross-up Payment. Such
notification shall be given as soon as practicable but no later than ten (10) business
days after the Executive knows of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid. The Executive shall not pay such claim prior to the expiration of the
thirty (30)-day period following the date on which he gives such notice to the
Company (or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies the Executive in writing
prior to the expiration of such period that it desires to contest such claim,
provided that the Company has set aside adequate reserves to cover the
Underpayment and any interest and penalties thereon that may accrue, the
Executive shall: (A) give the Company any information reasonably requested
by the Company relating to such claim, (B) take such action in connection
with contesting such claim as the Company shall reasonably request in writing
from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney selected by the
Company, (C) cooperate with the Company in good faith in order to
effectively contest such claim, and (D) permit the Company to participate
in any proceedings relating to such claim; provided, however, that the Company
shall bear and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis, for any
Excise Tax or income tax, including interest and penalties with respect
thereto, imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this subsection
(iii), the Company shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and sue for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest
to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and sue for a refund, the Company shall advance the amount of such
payment to the Executive on an interest-free basis (to the extent not
prohibited by applicable law) and shall indemnify and hold the Executive
harmless, on an after-tax basis, from any Excise Tax or income tax, including
interest or penalties with respect thereto, imposed with respect to such
advance or with respect to any imputed income with respect to such advance; and
further provided that any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company’s control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issues raised by the Internal Revenue Service or any other taxing
authority.


 


(iv)          If, after the receipt by the Executive
of an amount advanced by the Company pursuant to subsection (iii) above,
the Executive becomes entitled to receive any refund with respect to such
claim, the Executive shall (subject to the Company’s complying with the
requirements of subsection (iii) above) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by the Executive of an
amount advanced by the Company pursuant to subsection (iii) above, a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of thirty (30) days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.


 


 (i)           No
Mitigation. Without regard to the reason for the termination of the
Executive’s employment hereunder, the Executive shall be under no obligation to
mitigate damages with respect to such termination under any circumstances and
in the event the Executive is employed or receives income from any other
source, there shall be no offset against the amounts due from the Company
hereunder.


 


(j)            Section 409A. Notwithstanding
anything herein to the contrary, if at the time of the Executive’s termination
of employment with the Company, the Executive is a “specified employee” within
the meaning of Section 409A of the Code and the Company notifies the
Executive that, based on the advice of counsel, the deferral of the
commencement of any severance benefits payable under this Agreement is
necessary in order to


 


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comply with Section 409A
of the Code, then the Company shall defer the commencement of the severance
benefits (without any reduction) by a period of at least six months after the
Executive’s termination of employment and any payments so deferred shall earn
interest calculated at the prime rate of interest reported by The Wall
Street Journal as of the date of termination. Any severance benefits that
would have been paid during such six-month period but for the provisions of the
preceding sentence shall be paid in a lump sum to the Executive six (6) months
and one (1) day after the Executive’s termination of employment. The
provisions of this Section 6(j) shall apply only to the extent
required to avoid the Executive’s incurrence of any accelerated or additional
tax under Section 409A of the Code.


 


7.             Non-Competition and No Solicitation.


 


(a)           Because the Executive’s services to
the Company are special and because the Executive has access to the Company’s
confidential information, during the Term of Employment and for a period of
twelve (12) months following the termination, the Executive shall not, without
the express written consent of the Company, directly or indirectly, engage,
participate, invest in, be employed by or assist, whether as owner, part-owner,
shareholder, partner, director, officer, trustee, employee, agent or
consultant, or in any other capacity, any Person (as hereinafter defined) other
than the Company and its affiliates in the Designated Industry (as hereinafter
defined); provided, however, that nothing herein shall be construed as
preventing the Executive from making passive investments in a Person in the
Designated Industry if the securities of such Person are publicly traded and such
investment constitutes less than one percent (1%) of the outstanding shares of
capital stock or comparable equity interests of such Person.


 


(b)           For purposes of this Agreement, the
following terms have the following meanings:


 


“Person” means an
individual, a corporation, an association, a partnership, a limited liability
company, an estate, a trust and any other entity or organization; and


 


“Designated Industry”
means the business of providing chemistry research and development services to
pharmaceutical and biotechnology companies involved in drug development and
discovery and any and all activities related thereto, including, without
limitation, medicinal chemistry, chemical development, biocatalysis, analytical
chemistry services and small-scale manufacturing and any other business
conducted by the Company during the Executive’s employment with the Company.


 


(c)           For a period of twelve (12) months
following the termination of this Agreement for any reason, the Executive shall
not, directly or indirectly, alone or as a member of any partnership or limited
liability company or entity, or as an officer, director, shareholder, or
employee of any corporation or entity (a) solicit or otherwise encourage
any employee or independent contractor of the Company to terminate his/her
relationship with the Company, or (b) recruit, hire or solicit for
employment or for engagement as an independent contractor, any person who is or
was employed by the Company at any time during the Executive’s employment with
the Company. This paragraph shall not apply to persons whose employment and/or
retention with the Company has been terminated for a period of twenty four (24)
months or longer.


 


8.             Confidentiality. In the course of performing
services hereunder and otherwise, the Executive has had, and it is anticipated
that the Executive will from time to time have, access to confidential records,
data, customer lists, trade secrets, technology and similar confidential
information owned or used in the course of business by the Company and its
subsidiaries and affiliates (the “Confidential Information”). The Executive
agrees (i) to hold the Confidential Information in strict confidence, (ii) not
to disclose the Confidential Information to any Person (other than in the
regular business of the Company), and (iii) not to use, directly or
indirectly, any of the Confidential Information for any competitive or
commercial purpose; provided, however, that the limitations set forth above
shall not apply to any Confidential Information which (A) is then
generally known to the public, (B) became or becomes generally known to
the public through no fault of the Executive, or (C) is disclosed in
accordance with an order of a court of competent jurisdiction or applicable
law. Upon termination of the Executive’s employment with the Company, all data,
memoranda, customer lists, notes, programs and other papers and items, and
reproductions thereof relating to the foregoing matters in the Executive’s
possession or control, shall


 


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be returned to the
Company and remain in its possession. This Section 8 shall survive the
termination of this Agreement for any reason.


 


9.             Conflicting Agreements. The Executive hereby
represents and warrants that the execution of this Agreement and the
performance of his obligations hereunder will not breach or be in conflict with
any other agreement to which he is a party or is bound, and that he is not now
subject to any covenants which would affect the performance of his obligations
hereunder. As of the Effective Date, the Executive is not performing any other
duties for, and is not a party to any similar agreement with, any Person
competing with the Company or any of its affiliates.


 


10.           Severability. In case any of
the provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, any such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had been limited or modified (consistent with its
general intent) to the extent necessary to make it valid, legal and
enforceable, or if it shall not be possible to so limit or modify such invalid,
illegal or unenforceable provision or part of a provision, this Agreement shall
be construed as if such invalid, illegal or unenforceable provision or part of
a provision had never been contained in this Agreement.


 


11.           Litigation and Regulatory Cooperation.
During and after the Executive’s employment, the Executive shall cooperate
fully with the Company in the defense or prosecution of any claims or actions
now in existence or which may be brought in the future against or on behalf of
the Company which relate to events or occurrences that transpired while the
Executive was employed by the Company. The Executive’s full cooperation in
connection with such claims or actions shall include, but not be limited to,
being available to meet with counsel to prepare for discovery or trial and to
act as a witness on behalf of the Company at mutually convenient times. During
and after the Executive’s employment, the Executive also shall cooperate fully
with the Company in connection with any investigation or review of any federal,
state or local regulatory authority as any such investigation or review relates
to events or occurrences that transpired while the Executive was employed by
the Company. The Company shall reimburse the Executive for any reasonable
out-of-pocket expenses incurred in connection with the Executive’s performance
of obligations pursuant to this Section 11. This Section 11 shall
survive the termination of this Agreement for any reason.


 


12.           Arbitration of Disputes. Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in Albany, New York, in accordance with
the rules of the American Arbitration Association then in effect. Judgment
may be entered in any court having jurisdiction. In the event that the Company
terminates the Executive’s employment for cause under Section 6(b) and
the Executive contends that cause did not exist, then the Company’s only
obligation shall be to submit such claim to arbitration and the only issue
before the arbitrator will be whether the Executive was in fact terminated for
cause. If the arbitrator determines that the Executive was not terminated for
cause by the Company, then the only remedies that the arbitrator may award are (i) payment
of amounts which would have been payable if the Executive’s employment had been
terminated under Section 6(e), (ii) the costs of arbitration, (iii) the
Executive’s attorneys’ fees, and (iv) all rights and benefits granted or
in effect with respect to the Executive under the Company’s stock option plans
and agreements with the Executive pursuant thereto, with the vesting and
exercise of any stock options and the forfeit ability of any stock-based grants
held by the Executive to be governed by the terms of such plans and the related
agreements between the Executive and the Company. If the arbitrator finds that
the Executive’s employment was terminated for cause, the arbitrator will be
without authority to award the Executive anything, and the parties will each be
responsible for their own attorneys’ fees, and they will divide the costs of
arbitration equally. Furthermore, should a dispute occur concerning the
Executive’s mental or physical capacity as described in Section 6(c), a
doctor selected by the Executive and a doctor selected by the Company shall be
entitled to examine the Executive. If the opinion of the Company’s doctor and
the Executive’s doctor conflict, the Company’s doctor and the Executive’s
doctor shall together agree upon a third doctor, whose opinion shall be binding.
This Section 12 shall survive the termination of this Agreement for any
reason.


 


13.           Specific Performance. Notwithstanding
Section 12 hereof, it is specifically understood and agreed that any
breach of the provisions of this Agreement, including, without limitation,
Sections 7 and 8 hereof, by the


 


9

















 


Executive is likely to
result in irreparable injury to the Company and its subsidiaries and
affiliates, that the remedy at law alone will be inadequate remedy for such
breach and that, in addition to any other remedy it may have, the Company shall
be entitled to enforce the specific performance of this Agreement by the
Executive and to seek both temporary and permanent injunctive relief (to the
extent permitted by law), without the necessity of proving actual damages. To
the extent that any court action is permitted consistent with or to enforce Section 7
or 8 of this Agreement, the parties hereby agree to the sole and exclusive
jurisdiction of the Supreme Court of the State of New York (Albany County) and
the United States District Court for the Northern District of New York (City of
Albany). Accordingly, with respect to any such court action, the Executive (i) submits
to the personal jurisdiction of such courts, (ii) consents to service of
process, and (iii) waives any other requirement (whether imposed by
statute, rule of court or otherwise) with respect to personal jurisdiction
or service of process.


 


14.           Notices. All notices,
requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given (i) when delivered by hand, (ii) when
transmitted by facsimile and receipt is acknowledged, or (iii) if mailed
by certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:


 


	
   

  	
  To the Company:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Albany Molecular
  Research, Inc.

  
	
   

  	
   

  	
  21 Corporate Circle

  
	
   

  	
   

  	
  Albany, New York
  12203-5154

  
	
   

  	
   

  	
  Facsimile: (518)
  867-4375

  
	
  Attention: Board of
  Directors

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  To the Executive:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
				



 


 


 


or to such other address
of which any party may notify the other parties as provided above. Notices
shall be effective as of the date of such delivery or mailing.


 


15.           Amendment; Waiver. This
Agreement shall not be amended, modified or discharged in whole or in part
except by an Agreement in writing signed by both of the parties hereto. The
failure of either of the parties to require the performance of a term or
obligation or to exercise any right under this Agreement or the waiver of any
breach hereunder shall not prevent subsequent enforcement of such term or
obligation or exercise of such right or the enforcement at any time of any
other right hereunder or be deemed a waiver of any subsequent breach of the
provision so breached, or of any other breach hereunder.


 


16.           Successors and Assigns. This
Agreement shall inure to the benefit of successors of the Company by way of
merger, consolidation or transfer of all or substantially all of the assets of
the Company, and may not be assigned by the Executive.


 


17.           Entire Agreement. This
Agreement constitutes the entire agreement between the parties concerning the
subjects hereof and supersedes all prior understandings and agreements between
the parties relating to the subject matter hereof.


 


18.           Governing Law. This Agreement
shall be construed and regulated in all respects under the laws of the State of
New York.


 


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19.           Counterparts. This Agreement
may be executed in counterparts, each of which when so executed and delivered
shall be taken to be an original, but such counterparts shall together
constitute one and the same document.


 


[Remainder of Page Intentionally Left Blank]


 


 


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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the day and year first above
written.


 


	
   

  	
   

  	
  ALBANY MOLECULAR
  RESEARCH, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Thomas D’Ambra

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   /s/ Jonathan D. Evans

  
	
   

  	
   

  	
  Jonathan D. Evans

  



 


 


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