CONSULTING AGREEMENT
THIS AGREEMENT, made and entered into as of July 27, 2000 by and between
MYLAN LABORATORIES INC., a Pennsylvania corporation having an address at 1030
Century Building, 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 ("Consultee"), and
XXXXX CONSULTING, L.P., a Pennsylvania limited partnership, having an address at
USX Tower, 30th Floor, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000
("Consultant").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Consultee desires to retain the unique consulting services of
Consultant ("Services"); and
WHEREAS, Consultant is willing to provide such unique Services based on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and intending to be legally bound hereby, the parties covenant and agree as
follows:
Section 1. Engagement. Consultee hereby engages Consultant, and Consultant
hereby accepts such engagement, to evaluate and make recommendations to
Consultee with respect to methods and procedures that are intended to protect
and maximize shareholder value. Additionally, Consultant will, at the
Consultee's request, provide guidance and counsel with respect to business
combinations and commercial business transactions, and any and all other
activities and services incidental thereto provided, however, that nothing
contained in this Agreement shall be construed to include the provision of any
securities investment advice or related service. Consultant shall report to
Xxxxx Xxxxxx in his capacity as Chief Executive Officer of the Consultee and/or
Xxxx Xxxxxxx in his capacity as Executive Vice President of the Consultee and to
no other person or officer of the Consultee.
Section 2. Term and Termination. Subject to an earlier termination of this
Agreement pursuant to subsections (a) (b) and (c) below, the term of this
Agreement shall be for a period of three (3) years from the date set forth
above. Consultee or Consultant may terminate this Agreement prior to expiration
of the term hereof as follows:
(a) Termination Without Cause. Consultee or Consultant may terminate
this Agreement at any time, effective thirty (30) days after delivery of
written notice of termination to the other. In such event, Consultant shall
continue to render Services if requested by Consultee until the effective
date of termination, and Consultant shall be paid its regular monthly
compensation until such date.
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(b) Termination For Cause. Consultee may terminate this Agreement for
Cause (as hereinafter defined) at any time, effective upon delivery of
written notice to Consultant. In such event, Consultant shall be entitled
to its regular monthly compensation up to the date of termination, and in
no event shall Consultant be entitled to additional compensation or bonuses
after the effective date of such termination.
(c) Termination Due to a Change in Control. Consultant may terminate
this Agreement due to a Change in Control (as hereinafter defined), upon
written notice to the Consultee delivered within sixty (60) days of such
Change In Control. Such termination shall be effective thirty (30) days
after delivery of such written notice. In such event, Consultant shall
continue to render Services if requested by Consultee until the effective
date of termination, and Consultant shall be paid its regular monthly
compensation until such date. In no event shall a termination due to a
Change of Control be deemed to be a Termination Without Cause.
Section 3. Death or Disability. If Xxxxxx X. Xxxxx ("Xxxxx") dies or
becomes mentally or physically disabled during the term of this Agreement,
Consultee shall nonetheless pay to Consultant the compensation which would
otherwise be payable hereunder through the date of Xxxxx'x death or disability,
and the term of this Agreement shall be deemed to have expired on the date of
Xxxxx'x death or disability.
Section 4. Confidentiality. Consultant hereby agrees that all information
of whatsoever character either delivered to Consultant by Consultee or acquired
by Consultant in the course of performing Services for Consultee shall be
maintained in strictest confidence and shall not be disclosed to third parties
without the written consent of Consultee, except to the extent Consultant deems
necessary to obtain the advice of attorneys, accountants, investment bankers
and/or other consultants in connection with the performance of Services
hereunder. Consultant further agrees not to make any use of such information
unless expressly authorized to do so by Consultee, and shall take no action
which in any way is detrimental to the interests of Consultee in respect of such
information. No license or right of any nature is expressly or impliedly granted
to Consultant for the use of any intellectual property owned or utilized by
Consultee.
Section 5. Personal Service. Consultant's Services to be provided pursuant
to this Agreement shall be performed personally by Xxxxx, and no other person
shall be engaged in the performance of such Services without the prior written
consent of Consultee; provided, however, the foregoing shall not apply to
assistance rendered by accountants, attorneys, investment bankers secretaries,
clerical personnel and other similar professionals and support services required
by Consultant in the performance of Services.
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Section 6. Compensation. Consultee shall pay Consultant the following
compensation:
(a) Signing Bonus. In order to induce the Consultant to enter
into this Agreement, Consultee grants to the Consultant an option to
acquire One Hundred Thousand (100,000) shares of the Consultee's
common stock ("Option") such Option to be vested immediately upon the
execution of this agreement. Additional provisions governing the terms
of this Option are contained in an Option Agreement attached as
Exhibit A to this Agreement.
(b) Monthly Compensation. On the first occurring monthly
anniversary of this Agreement and on each subsequent monthly
anniversary through the termination of this Agreement, Consultee
agrees to pay the Consultant the sum of fifteen thousand dollars
($15,000).
(c) Performance Bonus. In its sole and absolute discretion
Consultee may pay the Consultant a performance bonus in such amount,
at such times and based upon such performance as Xxxxxx and Xxxxxxx or
their successors may deem appropriate.
(d) Transaction Fee. Consultee agrees to pay the Consultant a fee
equal to one-tenth of one percent (.1%) of the Aggregate Value (as
hereinafter defined) of any Major Transaction (as hereinafter defined)
involving the Consultee (including any transaction in which the
Consultee is the surviving entity); provided, however, that (i) the
Consultant participated or provided services in connection with such
Major Transaction, (ii) such Major Transaction was announced during
the period commencing on the effective date of this Agreement and
ending twelve (12) months after the termination of this Agreement, and
(iii) the Consultant has neither voluntarily terminated this Agreement
(i.e., the Consultant did not initiate a Termination Without Cause)
nor been Terminated for Cause.
In addition to the foregoing, Consultee agrees to reimburse Consultant upon
request for all expenses reasonably incurred by Consultant in performing
Services pursuant to this Agreement including, without limitation, travel,
lodging, food and third-party professional expenses.
Section 7. Consultant Representations. Consultant hereby
represents and warrants as follows:
(a) Good Standing. Consultant is a Pennsylvania limited partnership
duly organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania.
(b) Authority. Consultant is duly authorized to enter into
this Agreement, and to perform its obligations hereunder in
accordance with the terms and conditions contained herein.
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(c) Conflict. Neither the execution of this Agreement, nor
the performance of Services hereunder, will conflict with,
constitute a breach of, or cause a default under any agreement,
understanding, deed of trust, loan agreement or other contract,
statute or ordinance to which Consultant is a party, bound or
subject.
(d) Enforceability. When executed by Consultant, this
Agreement shall constitute a legally binding obligation of
Consultant, enforceable in accordance with the terms and
conditions contained herein.
Section 8. Consultant Obligations. Consultant warrants that
it shall render Services pursuant to this Agreement in a
professional manner, and will at all times endeavor to provide
sound and reasonable recommendations to Consultee in performing
such Services. Except as otherwise expressly stated herein,
Consultant makes no representations, warranties or covenants with
respect to its performance of Services. THE PARTIES ACKNOWLEDGE
AND AGREE THAT CONSULTANT'S SERVICES SHALL NOT INCLUDE
RESPONSIBILITY FOR MAKING ANY FINAL DECISIONS ON CONSULTEE'S
BEHALF. THEREFORE, CONSULTANT EXPRESSLY DISCLAIMS ANY LIABILITY
ARISING FROM ANY DECISION MADE ON THE BASIS OF CONSULTANT'S
SERVICES OR RECOMMENDATIONS INCLUDING, WITHOUT LIMITATION,
CONSEQUENTIAL DAMAGES DERIVING THEREFROM. CONSULTEE ACKNOWLEDGES
AND AGREES THAT NEITHER CONSULTANT NOR XXXXX SHALL BE HELD
RESPONSIBLE OR LIABLE FOR THE MAKING OF ANY DECISION BASED ON
CONSULTANT'S OR XXXXX'X SERVICES OR RECOMMENDATIONS, AND
CONSULTEE HEREBY WAIVES AND RELINQUISHES ANY CAUSE OF ACTION IT
NOW HAS OR MAY IN THE FUTURE ACQUIRE AGAINST CONSULTANT OR XXXXX
BASED ON OR RELATING TO ANY SERVICES OR RECOMMENDATIONS RENDERED
BY EITHER.
Section 9. Independent Contractor. In the performance of
Services hereunder, Consultant shall act at all times solely as
an independent contractor, and nothing herein shall at any time
be construed so as to create the relationship of employer and
employee, partnership, principal and agent or joint venture as
between Consultee and Consultant.
Section 10. Service To Other Clients. Consultee acknowledges
and agrees that its engagement of Consultant's Services pursuant
to this Agreement shall not be an exclusive engagement, and that
Xxxxx'x employment by Consultant shall not be exclusive of other
activities engaged in by Xxxxx. Consultee further acknowledges
and agrees that during the term of this Agreement, Consultant
shall have clients in addition to Consultee, and that Consultant
may be obligated to perform services for such other clients
during said term.
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Section 11. Assignment. Neither this Agreement nor any
interest herein or obligation hereunder may be assigned by either
of the parties hereto without the express written consent of the
other.
Section 12. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the Commonwealth
of Pennsylvania.
Section 13. Successors and Assigns. Except as otherwise
contained herein, this Agreement shall be binding upon, and will
inure to the benefit of, the successors and permitted assigns of
the parties hereto.
Section 14. Notices. Any notices required to be made under
the terms of this Agreement shall be made to the parties at the
addresses listed above subject to each party's right to change
the address for such notification by registered mail or similar
service and shall be deemed to be received three (3) days after
the posting thereof.
Section 15. Definitions. For purposes of this Agreement, the
following terms shall have the meanings assigned to them:
(a) Termination for Cause. In the event that the Consultant
has (i) committed an act of dishonesty, fraud, theft,
misappropriation, embezzlement or breach of trust against the
Consultee or an act which the Consultant knew to be in violation
of the duties to the Consultee (including the unauthorized
disclosure of proprietary information); (ii) willfully or grossly
neglected its duties and other obligations hereunder or
continually failed to render services or perform its obligations
to the Consultee, which neglect or failure is not remedied within
10 days after written notice thereof by the Consultee; or (iii)
been convicted of a felony (by trial or plea), the Consultee
shall be entitled to terminate this Agreement and the
relationship established hereby immediately upon the giving of
written notice to the Consultant of such termination specifying
the grounds therefor. Any such termination shall be a
"Termination for Cause." Without limiting the generality of the
foregoing, the following specific instances of conduct shall give
rise to the right of the Consultee to terminate the Consultant
for cause: (A) a violation of the confidentiality obligations of
the Consultee herein or a confidentiality obligation to which the
Consultee or any affiliate is bound; (B) misappropriation of
Consultee's property or the property of affiliate of the
Consultee; and (C) falsification of Consultee's records.
(b) Change in Control. (i) Change Of Control shall mean a
change of control of a nature that would be required to be
reported in response to Item 6 (e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as
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amended (the "Exchange Act"), whether or not the Consultee is
then subject to such reporting requirement; provided that,
without limitation, such a Change of Control shall be deemed to
have occurred if (A) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as determined for purposes of Regulation
13D-G under the Exchange Act as currently in effect), other than
a Consultee-sponsored employee benefit plan, directly or
indirectly, of securities of the Consultee representing twenty
percent (20%) or more of the combined voting power of the
Consultee 's then outstanding securities; or (B) during any
period of two consecutive years, individuals who at the beginning
of such period constitute the Board and any new director, whose
election to the Board or nomination for election to the Board by
the Consultee's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election
to the Board or nomination for election to the Board by the
Consultee 's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election
or nomination for election was previously so approved, cease for
any reason to constitute a majority of the Board; or (C) the
stockholders of the Consultee approve (1) a merger or
consolidation of the Consultee with any corporation or other
entity other than a merger or consolidation which would result in
the holders of the voting securities of the Consultee outstanding
immediately prior thereto holding immediately thereafter
securities representing more than eighty percent (80%) of the
combined voting power of the voting securities of the Consultee
or such surviving entity outstanding immediately after such
merger or consolidation (2) a plan of complete liquidation of the
Consultee or (3) an agreement for the sale or disposition by the
Consultee of all or substantially all of the Consultee's assets;
PROVIDED, HOWEVER, that if such a merger, consolidation, plan of
liquidation or sale of substantially all assets is not
consummated following such stockholder approval and the
transaction is abandoned, then the Change of Control shall be
deemed not to have occurred. Notwithstanding the foregoing, in no
event shall a Change of Control be deemed to occur as the result
of the formation of a holding company; (ii) Change in Control
shall also mean the termination of employment (including a
termination due to death, disability or retirement) or demotion
of Xxxxx Xxxxxx and Xxxx Xxxxxxx, or a change in the Consultant's
reporting responsibility such that the Consultant must report to
someone other than Xxxxx Xxxxxx or Xxxx Xxxxxxx.
(c) Major Transaction. For purposes of this agreement, the
term "Major Transaction" shall include, without limitation, any
sale (whether in one or a series of transactions) of all or a
substantial amount of the assets or the capital stock of the
Company, any sale, merger, or joint venture combination involving
the Company, any recapitalization, restructuring or liquidation
of the Company or any combination thereof, or any other form of
transaction or disposition which results in the effective sale of
the principal business and operations of the Company by the
current owners, and shall also include a material acquisition of
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a business or business line. The term "Major Transaction" shall
not include the acquisition of a product or a product line or
strategic alliances or other similar transactions which are in
the ordinary course of the business of the Company, nor shall it
include an investment in the Company by one or more institutional
investors who do not actively control the Company following such
investment.
(d) The "Aggregate Value" of a Major Transaction shall equal
the value of all consideration received or to be received per
share of common stock (the "Per Share Consideration") pursuant to
the Major Transaction multiplied by the Fully Diluted shares
outstanding (or in the case of a sale of assets, the
consideration received for such assets), plus the value of any
debt, capital lease, and preferred stock obligations of the
entity or business acquired directly or indirectly assumed,
retired, or defeased in connection with the Major Transaction or
remaining on the financial statements of the entity or business
at the closing of the Major Transaction. "Fully Diluted" shares
outstanding shall be defined as the total number of common shares
outstanding plus the total number of common shares that would be
issued upon conversion of any securities convertible into common
shares including, but not limited to, all outstanding convertible
preferred stock and stock options. In the case of a Major
Transaction in which the Per Share Consideration consists of
publicly traded common stock, the Per Share Consideration shall
be computed based on the average closing price of such common
stock over the 10 consecutive trading days up to and including
the second trading day immediately preceding the closing of the
Major Transaction. The Aggregate Value of a Major Transaction
shall include any break-up or similar fee received by the
Consultee with respect to a Major Transaction that is not
consummated.
Section 16. Captions. Section captions used in this
Agreement are for convenience only, and shall not be utilized in
the construction or interpretation of this Agreement.
Section 17. Entire Agreement. This Agreement sets forth the
entire agreement and understanding between the parties as to the
subject matter hereof, and supersedes all prior discussions
between them concerning such matters. This Agreement shall not be
subject to change, alteration or amendment other than by an
instrument in writing duly executed by the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
CONSULTANT: CONSULTEE:
COURTY CONSULTING, L.P. MYLAN LABORATORIES INC.
By: Xxxxx Consulting, Inc.
Sole General Partner
By: /s/ Xxxxxx X. Xxxxx By:/s/Xxxxx Xxxxxx
------------------- --------------------
Xxxxxx X. Xxxxx Xxxxx Xxxxxx
President Chairman and
Chief Executive Officer
By: /s/ Xxxx X. Xxxxxxx
--------------------
Xxxx Xxxxxxx
Executive Vice President
AMENDMENT TO
CONSULTING AGREEMENT
THIS AMENDMENT is made this 27th day of April, 2001 to that certain
CONSULTING AGREEMENT, made and entered into as of July 27, 2000 by and between
MYLAN LABORATORIES INC., a Pennsylvania corporation having an address at 1030
Century Building, 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 ("Consultee"), and
XXXXX CONSULTING, L.P., a Pennsylvania limited partnership, having an address at
USX Tower, 30th Floor, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000
("Consultant").
W I T N E S S E T H:
WHEREAS, Consultee and Consultant desire to amend the Consulting Agreement;
and
WHEREAS, all capitalized terms contained herein that are not clearly
defined herein shall have the meanings assigned to them under the Consulting
Agreement.
NOW, THEREFORE, in consideration of the services Consultant has rendered
since the Consulting Agreement was first effective and in anticipation of future
services to be rendered by the Consultant and in consideration of the mutual
promises contained herein and intending to be legally bound hereby, the parties
covenant and agree as follows:
I. Effective April 27, 2001 Section 2(a) is deleted in its entirety and the
following is substituted therefor:
(a) Termination Without Cause. Consultant may terminate this Agreement at
any time, effective thirty (30) days after delivery of written notice of
termination to the Consultee. In such event, Consultant shall continue to
render Services if requested by Consultee until the effective date of
termination, and Consultant shall be paid its regular monthly compensation
and performance bonus until such date. If the Consultee desires to
terminate this Agreement without Cause, then the Consultant shall be
entitled to receive its monthly compensation and performance bonus as
described in Section 6 (a) and (b) for the remainder of the term of this
Agreement.
II. Effective April 27, 2001 Section 6(c) is deleted in its entirety and
the following is substituted therefor:
(c) Performance Bonus. In its sole and absolute discretion Consultee may
pay the Consultant a performance bonus in such amount, at such times and
based upon such performance as Xxxxxx and Xxxxxxx or their successors may
deem appropriate. Effective April 27, 2001 the parties have agreed that a
performance bonus of ten thousand dollars ($10,000) per month shall be paid
to the Consultant. This performance bonus shall be paid over the remaining
term of this Agreement by increasing the Monthly Compensation payable to
the Consultant.
II. Effective upon the execution of this Amendment, Section 6(d) is deleted
in its entirety and the following is substituted therefor:
(d) Major Transaction. Consultee agrees that the Consultant
shall participate in any Major Transaction (as hereinafter defined)
including any transaction in which the Consultee is the surviving
entity; provided, however, that (i) such Major Transaction was
announced during the period commencing on the effective date of the
amendment to this Agreement and ending twelve (12) months after the
termination of this Agreement, and (ii) the Consultant has neither
voluntarily terminated this Agreement (i.e., the Consultant did not
initiate a Termination Without Cause) nor been Terminated For Cause.
Consultee agrees to pay to, or cause to be paid to, the Consultant a
fee equal to one-tenth of one percent (.1%) of the Aggregate Value (as
hereinafter defined) of any Major Transaction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
CONSULTANT: CONSULTEE:
COURTY CONSULTING, L.P. MYLAN LABORATORIES INC.
By: Xxxxx Consulting, Inc.
Sole General Partner
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxx
------------------- -------------------------
Xxxxxx X. Xxxxx Xxxxx Xxxxxx
President Chairman and
Chief Executive Officer
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Xxxx Xxxxxxx
Executive Vice President
AMENDMENT TO
CONSULTING AGREEMENT
THIS AMENDMENT is made this 19th day of November, 2001 to that certain
CONSULTING AGREEMENT, made and entered into as of the 27th day of July, 2000 and
amended as of the 27th day of April, 2001 by and between MYLAN LABORATORIES
INC., a Pennsylvania corporation having an address at 1030 Century Building, 000
Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 ("Consultee"), and XXXXX CONSULTING, L.P.,
a Pennsylvania limited partnership, having an address at USX Tower, 30th Floor,
000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Consultant").
W I T N E S S E T H:
WHEREAS, Consultee and Consultant desire to amend the Consulting Agreement
effective December 1, 2001; and
WHEREAS, all capitalized terms contained herein that are not clearly
defined herein shall have the meanings assigned to them under the Consulting
Agreement.
NOW, THEREFORE, in consideration of the services Consultant has rendered
since the Consulting Agreement was first effective and in anticipation of future
services to be rendered by the Consultant and in consideration of the mutual
promises contained herein and intending to be legally bound hereby, the parties
covenant and agree as follows:
I. The first sentence of Section 2 is deleted in its entirety and the
following is substituted therefor:
Subject to an earlier termination of this Agreement pursuant to subsections
(a) (b) and (c) below, the term of this Agreement shall commence December
1, 2001 and shall terminate December 31, 2003.
II. Section 2(c) is deleted in its entirety and the following is
substituted therefor:
(c) Termination Due to a Change In Control. Consultant may terminate this
Agreement due to a Change In Control (as hereinafter defined), upon written
notice to the Consultee delivered within sixty (60) days of such Change In
Control. Such termination shall be effective thirty (30) days after
delivery of such written notice. In such event, Consultant shall continue
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to render Services if requested by Consultee until the effective date of
termination, and Consultant shall be entitled to receive its monthly
compensation as described in subsections 6(b) & (c) for the remainder of
the term of this Agreement. If the Company desires to terminate this
Agreement after a Change In Control, then the Consultant shall be entitled
to receive its monthly compensation as described in subsections 6(b) & (c)
for the remainder of the term of this Agreement. In no event shall a
termination due to a Change In Control be deemed to be a Termination
Without Cause by the Consultant.
II. Section 6(b) is deleted in its entirety and the following is
substituted therefor:
(b) Monthly Compensation. Effective December 1, 2001 and on the first
day of each succeeding calendar month during which this Agreement is in
effect, Consultee shall pay the Consultant the sum of seventy-five thousand
dollars ($75,000).
III. Section 6(c) is deleted in its entirety and the following is
substituted therefor:
(c) Performance Bonus. In its sole and absolute discretion Consultee
may pay the Consultant a performance bonus in such amount, at such times
and based upon such performance as Xxxxxx and Xxxxxxx or their successors
may deem appropriate.
Note: The prior Performance Bonus of $10,000 per month terminates with the
payment due on November 27, 2001.
III. Section 15(a) is deleted in its entirety and the following is
substituted therefor:
(a) Termination for Cause. In the event that the Consultant has (i)
committed fraud, theft, misappropriation or embezzlement against the
Consultee; (ii) willfully or grossly neglected its duties and other
obligations hereunder or continually failed to render services or perform
its obligations to the Consultee, which neglect or failure is not remedied
within 10 days after written notice thereof by the Consultee; or (iii) been
convicted of a felony (by trial or plea), the Consultee shall be entitled
to terminate this Agreement and the relationship established hereby
immediately upon the giving of written notice to the Consultant of such
termination specifying the grounds therefor. Any such termination shall be
a "Termination for Cause."
IV. Section 15(b) is deleted in its entirety and the following is
substituted therefor:
(b) Change In Control. (1) Change In Control shall mean the
acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (A) the then-outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (B) the combined voting
power of the then-outstanding voting securities of the Company entitled to
vote generally in the election of directors (the "Outstanding Company
Voting Securities"); provided, however, that, for purposes of this Section
1(d), the following acquisitions shall not constitute a Change of Control:
(i) any acquisition directly from the Company, (ii) any acquisition by the
Company, (iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any Affiliated Company or
(iv) any acquisition by any corporation pursuant to a transaction that
complies with Sections 15(b)(3)(A), 15(b)(3)(B) and 15(b)(3)(C).
(2) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by
the Company's shareholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with respect
to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than
the Board.
(3) Consummation of a reorganization, merger, statutory share exchange
or consolidation or similar corporate transaction involving the Company or
any of its subsidiaries, a sale or other disposition of all or
substantially all of the assets of the Company, or the acquisition of
assets or stock of another entity by the Company or any of its subsidiaries
(each, a "Business Combination"), in each case unless, following such
Business Combination, (A) all or substantially all of the individuals and
entities that were the beneficial owners of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly, more
than 65% of the then-outstanding shares of common stock and the combined
voting power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including, without
limitation, a corporation that, as a result of such transaction, owns the
Company or all or substantially all of the Company's assets either directly
or through one or more subsidiaries) in substantially the same proportions
as their ownership immediately prior to such Business Combination of the
Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (B) no Person (excluding any employee
benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then-outstanding shares of
common stock of the corporation resulting from such Business Combination or
the combined voting power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior to the
Business Combination, and (C) at least a majority of the members of the
board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement or of the action of the Board providing
for such Business Combination; or Approval by the shareholders of the
Company of a complete liquidation or dissolution of the Company.
Change in Control shall also mean the termination of employment
(including a termination due to death, disability or retirement) or
demotion of Xxxxx Xxxxxx and Xxxx Xxxxxxx, or a change in the Consultant's
reporting responsibility such that the Consultant must report to someone
other than Xxxxx Xxxxxx or Xxxx Xxxxxxx.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
CONSULTANT: CONSULTEE:
XXXXX CONSULTING, L.P. MYLAN LABORATORIES INC.
By: Xxxxx Consulting, Inc.
Sole General Partner
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxx
------------------------ -----------------------
Xxxxxx X. Xxxxx Xxxxx Xxxxxx
President Chairman and
Chief Executive Officer
By: /s/ X.X. Xxxx
-----------------------
X. X. Xxxx
President and
Chief Operating Officer
