Exhibit 10.1


AMENDED
AND RESTATED


EMPLOYMENT AGREEMENT


This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is made this 30th
day of June 2006, by and between Albany Molecular Research, Inc., a Delaware
corporation (the “Company”), and Thomas E. D’Ambra, Ph.D. (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


WHEREAS,
the Executive and the Company entered into an Employment Agreement on May 5,
2006, and wish to amend and restate in full such agreement as of the date
hereof.


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


1.             Employment. Subject to the
provisions of Section 6, 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 three (3) 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 third anniversary of
the Effective Date and on each subsequent 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 Board of Directors of
the Company and (i) shall serve as an
executive officer of the Company
with the title Chairman, Chief Executive Officer
and President, subject to election by the Board of Directors of the Company,
(ii) shall perform such duties and responsibilities as may be reasonably
determined by the Board of Directors of the Company consistent with the
Executive’s title and position, duties and responsibilities as an executive
officer 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, (iii) upon the request of the Board of Directors of the
Company, shall serve as an officer and/or director of the Company and any of
its subsidiaries or affiliates (provided that the Company shall
indemnify the Executive for liabilities incurred as such in accordance with its
current practices to the fullest extent permitted by applicable law); and (iv)
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 Board of
Directors of the Company or the Compensation Committee of the Board of
Directors consistent with the general policies and practices of the Company and
subject to periodic review in accordance with the policies and practices of the
Company; provided, however, that in no event shall such rate per
annum be less than $350,000.00. 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 senior executives of the Company, as in effect
from time to time.


(c)           Vacation. During the Term of
Employment, the Executive shall receive at least four (4) weeks paid vacation
annually or such greater amount as is in accordance with the Company’s
practices for senior executives of the Company, as in effect from time to time.


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:


(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 Company’s Board of Directors Compensation
Committee 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.


(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 two (2) years from
the Date of Termination and shall pay to the Executive in monthly installments
over each year of the two (2) year period, 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 thirty-six
(36) 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 two
(2) years from the Date of Termination and shall pay to the Executive in
monthly installments over each year of the two (2) year period, 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 thirty-six (36) 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 Executive’s
estate, if applicable) a lump sum amount equal to three (3) 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 thirty-six (36) 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).


(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.


(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 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
twenty four (24) 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 twenty four (24)
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 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 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.


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]









 



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


	
   

  	
  ALBANY MOLECULAR RESEARCH,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony P.
  Tartaglia, M.D.

  	
   

  
	
   

  	
  Anthony P.
  Tartaglia, M.D.

  
	
   

  	
  Lead Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Thomas E. D’Ambra, Ph.D.

  	
   

  
	
   

  	
  Thomas E. D’Ambra, Ph.D.