EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is dated this July
22, 2002, by and between Mylan Laboratories Inc. (the "Company") and Xxxxxx X.
Xxxxx ("Executive").
RECITALS:
WHEREAS, the Company wishes to employ Executive as Chief Executive Officer
- Elect effective immediately and as Chief Executive Officer effective September
1, 2002; and
WHEREAS, Executive is desirous of assisting the Company in said capacity;
NOW, THEREFORE, in consideration of the promises and mutual obligations of
the parties contained herein, and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and Executive
agree as follows:
1. Employment of Executive; Termination of Consulting Agreement. The
Company agrees to employ Executive, and Executive accepts employment by the
Company on the terms and conditions provided herein. The Company and the
Executive agree that the consulting agreement dated July 27, 2000, as amended,
pursuant to which the Executive previously provided consulting services to the
Company has been terminated.
2. Effective Date: Term of Employment. This Agreement shall commence and be
effective as of the date hereof and shall remain in effect, unless earlier
terminated, or extended or renewed, as provided in Section 8 of this Agreement,
through March 31, 2007.
3. Executive's Compensation. Executive's "Compensation" shall include the
following:
(a) Minimum Base Salary. The Executive's minimum base salary (the
"Minimum Base Salary") shall be as follows: for the period of July 22, 2002
through March 31, 2003 a monthly rate of $75,000 (or $900,000 annualized);
$1,100,000 for the Company's fiscal year beginning April 1, 2003; $1,300,000 for
the Company's fiscal year beginning April 1, 2004; $1,500,000 for the Company's
fiscal year beginning April 1, 2005 and $1,700,000 for the Company's fiscal year
beginning April 1, 2006, payable in accordance with the Company's normal payroll
practices for its executive officers. The Minimum Base Salary may be increased
from time to time at the discretion of the Board of Directors of the Company or
any committee thereof having authority over executive compensation.
(b) Annual Bonus. The Company shall guarantee Executive an annual
bonus equal to fifty percent (50%) of Executive's then-current Minimum Base
Salary ("Annual Bonus"), and the Executive shall be eligible to receive, as
determined by the compensation
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committee of the Board of Directors, an additional annual bonus in the amount of
at least an additional fifty percent (50%) of Executive's then-current Minimum
Base Salary.
(c) Non-Qualified Stock Options. On the effective date of this
Agreement, the Executive shall receive a grant of fully vested non-qualified
options to purchase up to 300,000 shares of Mylan Laboratories Inc. common stock
under the 1997 Mylan Laboratories Inc. Incentive Stock Option Plan (the "Plan"),
and on January 1, 2003 the Executive shall receive another grant of fully vested
non-qualified options to purchase up to 300,000 shares under the Plan. One-third
(1/3) of each such grant shall be immediately exercisable upon such grant, and
one-third (1/3) of each such grant shall be exercisable on each of the next two
anniversaries of the grant. These options will be subject to all terms of the
Plan, as amended and the applicable stock option agreement.
(d) Fringe Benefits and Expense Reimbursement. The Executive shall
receive such benefits and perquisites of employment as have been customarily
provided to the Company's Chief Executive Officer including but not limited to,
health insurance coverage, profit-sharing, participation in the Company's 401(k)
plan, short-term disability benefits, twenty-five (25) vacation days, expense
reimbursement, and automobile usage in accordance with the plan documents or
policies that govern such benefits. Because of heightened security concerns the
Executive shall also be entitled to personal usage of the Company's aircraft for
the Executive and the Executive's family for vacations and other personal
purposes. To the extent that any income or employment taxes ("Taxes") are due
with respect to the Executive's or his family's personal use of the Company's
aircraft, the Company shall provide the Executive with a "gross up" of Taxes due
on such use. The Company shall reimburse Executive for all ordinary and
necessary business expenses in accordance with established Company policy and
procedures.
4. Confidentiality. Executive recognizes and acknowledges that the business
interests of the Company and its subsidiaries, parents and affiliates
(collectively the "Mylan Companies") require a confidential relationship between
the Company and Executive and the fullest protection and confidential treatment
of the financial data, customer information, supplier information, market
information, marketing and/or promotional techniques and methods, pricing
information, purchase information, sales policies, employee lists, policy and
procedure information, records, advertising information, computer records, trade
secrets, know how, plans and programs, sources of supply, and other knowledge of
the business of the Mylan Companies (all of which are hereinafter jointly termed
"Confidential Information") which have or may in whole or in part be conceived,
learned or obtained by Executive in the course of Executive's employment with
the Company. Accordingly, Executive agrees to keep secret and treat as
confidential all Confidential Information whether or not copyrightable or
patentable, and agrees not to use or aid others in learning of or using any
Confidential Information except in the ordinary course of business and in
furtherance of the Company's interests. During the term of this Agreement and at
all times thereafter, except insofar as is necessary disclosure consistent with
the Company's business interests:
(a) Executive will not, directly or indirectly, disclose any
Confidential Information to anyone outside the Mylan Companies;
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(b) Executive will not make copies of or otherwise disclose the
contents of documents containing or constituting Confidential Information;
(c) As to documents which are delivered to Executive or which are made
available to him as a necessary part of the working relationships and duties of
Executive within the business of the Company, Executive will treat such
documents confidentially and will treat such documents as proprietary and
confidential, not to be reproduced, disclosed or used without appropriate
authority of the Company;
(d) Executive will not advise others that the information and/or know
how included in Confidential Information is known to or used by the Company; and
(e) Executive will not in any manner disclose or use Confidential
Information for Executive's own account and will not aid, assist or abet others
in the use of Confidential Information for their account or benefit, or for the
account or benefit of any person or entity other than the Company.
The obligations set forth in this paragraph are in addition to
any other agreements the Executive may have with the Company and any and all
rights the Company may have under state or federal statutes or common law.
5. Non-Competition and Non-Solicitation. Executive agrees that during the
term of this Agreement and for a period ending two (2) years after termination
of Executive's employment with the Company for any reason:
(a) Executive shall not, directly or indirectly, whether for himself
or for any other person, company, corporation or other entity be or become
associated in any way (including but not limited to the association set forth in
i-vii of this subsection) with any business or organization which is directly or
indirectly engaged in the research, development, manufacture, production,
marketing, promotion or sale of any product the same as or similar to those of
the Mylan Companies, or which competes or intends to compete in any line of
business with the Mylan Companies within North America. Notwithstanding the
foregoing, Executive may during the period in which this paragraph is in effect
own stock or other interests in corporations or other entities that engage in
businesses the same or substantially similar to those engaged in by the Mylan
Companies, provided that Executive does not, directly or indirectly (including
without limitation as the result of ownership or control of another corporation
or other entity), individually or as part of a group (as that term is defined in
Section 13 (d) of the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder) (i) control or have the ability to
control the corporation or other entity, (ii) provide to the corporation or
entity, whether as an Executive, consultant or otherwise, advice or
consultation, (iii) provide to the corporation or entity any confidential or
proprietary information regarding the Mylan Companies or its businesses or
regarding the conduct of businesses similar to those of the Mylan Companies,
(iv) hold or have the right by contract or arrangement or understanding with
other parties to hold a position on the board of directors or other governing
body of the corporation or entity or have the right by contract or arrangement
or understanding with other parties to elect one or more persons to any such
position, (v) hold a position as an
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officer of the corporation or entity, (vi) have the purpose to change or
influence the control of the corporation or entity (other than solely by the
voting of his shares or ownership interest) or (vii) have a business or other
relationship, by contract or otherwise, with the corporation or entity other
than as a passive investor in it; provided, however, that Executive may vote his
shares or ownership interest in such manner as he chooses provided that such
action does not otherwise violate the prohibitions set forth in this sentence.
(b) Executive will not, either directly or indirectly, either for
himself or for any other person, partnership, firm, company, corporation or
other entity, contact, solicit, divert, or take away any of the customers or
suppliers of the Mylan Companies.
(c) Executive will not solicit, entice or otherwise induce any
employee of the Mylan Companies to leave the employ of the Mylan Companies for
any reason whatsoever; nor will Executive directly or indirectly aid, assist or
abet any other person or entity in soliciting or hiring any employee of the
Mylan Companies, nor will Executive otherwise interfere with any contractual or
other business relationships between the Mylan Companies and its employees.
6. Severability. Should a court of competent jurisdiction determine that
any section or sub-section of this Agreement is unenforceable because one or all
of them are vague or overly broad, the parties agree that this Agreement may and
shall be enforced to the maximum extent permitted by law. It is the intent of
the parties that each section and sub-section of this Agreement be a separate
and distinct promise and that unenforceability of any one subsection shall have
no effect on the enforceability of another.
7. Injunctive Relief. The parties agree that in the event of Executive's
violation of sections 4 and/or 5 of this Agreement or any subsection thereunder,
that the damage to the Company will be irreparable and that money damages will
be difficult or impossible to ascertain. Accordingly, in addition to whatever
other remedies the Company may have at law or in equity, Executive recognizes
and agrees that the Company shall be entitled to a temporary restraining order
and a temporary and permanent injunction enjoining and prohibiting any acts not
permissible pursuant to this Agreement. Executive agrees that should either
party seek to enforce or determine its rights because of an act of Executive
which the Company believes to be in contravention of sections 4 and/or 5 of this
Agreement or any subsection thereunder, the duration of the restrictions imposed
thereby shall be extended for a time period equal to the period necessary to
obtain judicial enforcement of the Company's rights.
8. Termination of Employment.
(a) Resignation. Executive may resign from employment at any time upon
ninety (90) days written notice to the Company. During the ninety (90) days
notice period Executive will continue to perform duties and abide by all other
terms and conditions of this Agreement. Additionally, Executive will use his
best efforts to effect a smooth and effective transition to whomever will
replace Executive. The Company reserves the right to accelerate the effective
date of Executive's resignation. Except as provided in sections 8(c) and (d),
the Company shall have no liability to Executive under this subsection other
than that the Company shall pay Executive's wages and benefits through the
effective date of Executive's resignation.
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Executive, however, will continue to be bound by all provisions of this
Agreement that survive termination of employment.
(b) Termination for Cause. If the Company desires to terminate the
Executive's employment for Cause, as defined herein, it shall give Executive
written notice of its belief that acts or events constituting Cause exist.
Executive shall have the right within ninety (90) days of the Company's giving
of such notice, (i) to cure the acts, events or conditions which led to such
notice being given, or (ii) to resign. If the Executive elects to resign, such
resignation shall be deemed to be a Resignation With Good Reason (as defined
below).
"Cause" shall mean: (i) Executive's willful and substantial misconduct
with respect to the Company's business or affairs; (ii) Executive's gross
neglect of duties, (iii) Executive's conviction of a crime involving moral
turpitude or (iv) Executive's conviction of any felony.
(c) Resignation With Good Reason or Termination Without Cause. If
Executive resigns with Good Reason (exclusive of Disability) and complies in all
respects with his obligations hereunder, or if the Company terminates Executive
without Cause, then Executive shall be paid (i) two (2) times his then-current
Minimum Base Salary plus the Annual Bonus applicable for that year in a lump sum
within thirty (30) days of resignation or termination, plus (ii) his Minimum
Base Salary plus the Annual Bonus determined under this Agreement for such
remaining years in accordance with the Company's payroll practices for the
remainder of the contract period. If the Executive resigns with Good Reason that
is a Disability, the Company will continue to pay Executive his Minimum Base
Salary plus Annual Bonus for the remainder of the contract period. In either
case, Employee Benefits shall be continued during the remainder of the payment
period provided, however, that in the case of health insurance continuation, the
Company's obligation to provide health insurance benefits shall end at such time
as Executive, at his option, voluntarily obtains health insurance benefits
through another employer or otherwise in connection with rendering services for
a third party. Executive shall also be entitled to exercise immediately one
hundred percent (100%) of all stock options described in this Agreement in the
event of a Resignation With Good Reason or Termination Without Cause. Executive
will continue to be bound by all provisions of this Agreement that survive
termination of employment.
"Good Reason" shall mean a reduction of Executive's Compensation, a
change (other than a mutually agreed-upon change) in the Executive's
responsibilities, a relocation of Executive's principal place of work to a
location more than thirty (30) miles from Morgantown, WV or Pittsburgh, PA, the
Executive's Disability (as defined herein), failure of Executive to be nominated
and/or elected to the Company's Board of Directors, or a resignation pursuant to
section 8 (b).
"Disability" means the inability to perform normal functions of the
position of Chief Executive Officer due to mental, physical or emotional
disability which is expected to last more than one year.
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The Executive and the Company intend that no part of these payments
under Section 8(c) be deemed to be a "parachute payment" as defined under IRC
ss.280G and instead such payments are meant to compensate Executive for services
rendered. However, should any portion of these payments give rise to the excise
taxes imposed under IRC ss.4999, the Company shall gross up the payments for the
amount of the excise taxes (and the amount of income and payroll taxes due on
such excise taxes) payable by the Executive.
(d) Resignation Without Good Reason after Thirty-six (36) Months. If
the Executive resigns after the first thirty-six (36) months of the term of this
Agreement without Good Reason, the Executive's Minimum Base Salary plus the
Annual Bonus shall continue to be paid for a period of twenty-four (24) months.
Employee Benefits shall be continued during the remainder of the payment period
provided, however, that in the case of health insurance continuation, the
Company's obligation to provide health insurance benefits shall end at such time
as Executive, at his option, voluntarily obtains health insurance benefits
through another employer or otherwise in connection with rendering services for
a third party.
(e) Extension or Renewal. The Term of Employment may be extended or
renewed upon mutual agreement of Executive and the Company. If the Term of
Employment is not extended or renewed on terms mutually acceptable to Executive
and the Company, and if this Agreement has not been already terminated for
reasons stated in Section 8 (a), (b), (c) or (d) of this Agreement, Executive
shall be paid severance in an amount equal to two (2) times Executive's
then-current Minimum Base Salary plus the Annual Bonus applicable for that year
in a lump sum, less applicable withholding, within thirty (30) days of
termination and Executive's health insurance benefits shall be continued for
twenty four (24) months at the Company's cost; provided, however, that in the
case of health insurance continuation, the Company's obligation to provide
health insurance benefits shall end at such time as Executive, at his option,
voluntarily obtains health insurance benefits through another employer or
otherwise in connection with rendering services for a third party. Executive,
however, will continue to be bound by all provisions of this Agreement that
survive termination of employment.
(f) Return of Company Property. Upon the termination of Executive's
employment for any reason, Executive shall immediately return to the Company all
records, memoranda, files, notes, papers, correspondence, reports, documents,
books, diskettes, hard drives, electronic files, and all copies or abstracts
thereof that Executive has concerning the Company's business. Executive shall
also immediately return all keys, identification cards or badges and other
Company property.
(g) No Duty to Mitigate. There shall be no requirement on the part of
the Executive to seek other employment or otherwise mitigate damages in order to
be entitled to the full amount of any payments and benefits to which Executive
is otherwise entitled under the contract, and the amount of such payments and
benefits shall not be reduced by any compensation or benefits received by
Executive from other employment.
9. Indemnification. The Company shall maintain D&O liability coverage
pursuant to which Executive shall be a covered insured. Executive shall receive
indemnification in accordance with the Company's Bylaws in effect as of the date
of this Agreement. Such
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indemnification shall be contractual in nature and shall remain in effect
notwithstanding any future change to the Company's Bylaws.
To the extent not otherwise limited by the Company's Bylaws in effect as of
the date of this Agreement, in the event that Executive is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, (including those brought by or in the right of the Company) whether
civil, criminal, administrative or investigative ("proceeding"), by reason of
the fact that he is or was an officer, employee or agent of, or is or was
serving the Company or any subsidiary of the Company, or is or was serving at
the request of the Company or another corporation, or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, Executive
shall be indemnified and held harmless by the Company to the fullest extent
authorized by law against all expenses, liabilities and losses (including
attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by Executive
in connection therewith. Such right shall be a contract right and shall include
the right to be paid by the Company expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that the
payment of such expenses incurred by Executive in his capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
Executive while a director or officer, including, without limitation, service to
an employee benefit plan) in advance of the final disposition of such proceeding
will be made only upon delivery to the Company of an undertaking, by or on
behalf of Executive, to repay all amounts to Company so advanced if it should be
determined ultimately that Executive is not entitled to be indemnified under
this section or otherwise.
Promptly after receipt by Executive of notice of the commencement of any
action, suit or proceeding for which Executive may be entitled to be
indemnified, Executive shall notify the Company in writing of the commencement
thereof (but the failure to notify the Company shall not relieve it from any
liability which it may have under this Section 9 unless and to the extent that
it has been prejudiced in a material respect by such failure or from the
forfeiture of substantial rights and defenses). If any such action, suit or
proceeding is brought against Executive and he notifies the Company of the
commencement thereof, the Company will be entitled to participate therein, and,
to the extent it may elect by written notice delivered to Executive promptly
after receiving the aforesaid notice from Executive, to assume the defense
thereof with counsel reasonably satisfactory to Executive, which may be the same
counsel as counsel to the Company. Notwithstanding the foregoing, Executive
shall have the right to employ his own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of Executive unless (i) the
employment of such counsel shall have been authorized in writing by the Company,
(ii) the Company shall not have employed counsel reasonably satisfactory to
Executive to take charge of the defense of such action within a reasonable time
after notice of commencement of the action or (iii) Executive shall have
reasonably concluded, after consultation with counsel to Executive, that a
conflict of interest exists which makes representation by counsel chosen by the
Company not advisable (in which case the Company shall not have the right to
direct the defense of such action on behalf of Executive), in any of which
events such fees and expenses of one additional counsel shall be borne by the
Company.
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Anything in this Section 9 to the contrary notwithstanding, the Company shall
not be liable for any settlement of any claim or action effected without its
written consent.
10. Reasonable Time. Executive shall be permitted reasonable time to devote
to personal investments, service on corporate, professional and charitable
boards and other philanthropic activities and service as a fiduciary or
administrator with respect to estates and trusts.
11. Transition and Succession Agreement. A Transition and Succession
Agreement shall be executed by the Executive and the Company that contemplates
this Agreement. It is the intent of the Executive and the Company that the
benefits and compensation paid under this Agreement and the Transition and
Succession Agreement shall not be duplicated and that the Executive shall be
entitled to the higher of the benefits and compensation payable under this
Agreement or under the Transition and Succession Agreement.
12. Other Agreements. The rights and obligations contained in this
Agreement are in addition to and not in place of any rights or obligations
contained in any other agreements between the Executive and the Company, except
as to the existing Consulting Agreement between the parties which shall
terminate upon execution of this Agreement and all terms contained within said
Consulting Agreement will be superceded by the terms of this Agreement.
13. Notices. All notices hereunder to the parties hereto shall be in
writing sent by certified mail, return receipt requested, postage prepaid, and
by fax, addressed to the respective parties at the following addresses:
MYLAN: Mylan Laboratories Inc.
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000-0000
Attention: Chairman of the Board
With a copy to: Mylan Laboratories Inc.
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000-0000
Attention: Chief Legal Officer
EXECUTIVE: Xxxxxx X. Xxxxx
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Either party may, by written notice complying with the requirements of this
section, specify another or different person or address for the purpose of
notification hereunder. All notices shall be deemed to have been given and
received on the day a fax is sent or, if mailed only, on the third business day
following such mailing.
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14. Withholding. All payments required to be made by the Company hereunder
to Executive or his dependents, beneficiaries, or estate will be subject to the
withholding of such amounts relating to tax and/or other payroll deductions as
may be required by law.
15. Modification and Waiver. This Agreement may not be changed or
terminated orally, nor shall any change, termination or attempted waiver of any
of the provisions contained in this Agreement be binding unless in writing and
signed by the party against whom the same is sought to be enforced, nor shall
this section itself by waived verbally. This Agreement may be amended only by a
written instrument duly executed by or on behalf of the parties hereto.
16. Construction of Agreement. This Agreement and all of its provisions
were subject to negotiation and shall not be construed more strictly against one
party than against another party regardless of which party drafted any
particular provision.
17. Successors and Assigns. This Agreement and all of its provisions,
rights and obligations shall be binding upon and inure to the benefit of the
parties hereto and the Company's successors and assigns. This Agreement may be
assigned by the Company to any person, firm or corporation which shall become
the owner of substantially all of the assets of the Company or which shall
succeed to the business of the Company; provided, however, that in the event of
any such assignment the Company shall obtain an instrument in writing from the
assignee in which such assignee assumes the obligations of the Company hereunder
and shall deliver an executed copy thereof to Executive. No right or interest to
or in any payments or benefits hereunder shall be assignable by Executive;
provided, however, that this provision shall not preclude him from designating
one or more beneficiaries to receive any amount that may be payable after his
death and shall not preclude the legal representative of his estate from
assigning any right hereunder to the person or persons entitled thereto under
his will or, in the case of intestacy, to the person or persons entitled thereto
under the laws of intestacy applicable to his estate. The term "beneficiaries"
as used in this Agreement shall mean a beneficiary or beneficiary or
beneficiaries so designated to receive any such amount, or if no beneficiary has
been so designated, the legal representative of the Executive's estate. No
right, benefit, or interest hereunder, shall be subject to anticipation,
alienation, sale, assignment, encumbrance, charge, pledge, hypothecation, or
set-off in respect of any claim, debt, or obligation, or to execution,
attachment, levy, or similar process, or assignment by operation of law. Any
attempt, voluntary or involuntary, to effect any action specified in the
immediately preceding sentence shall, to the full extent permitted by law, be
null, void, and of no effect.
18. Choice of Law and Forum. This Agreement shall be construed and enforced
according to, and the rights and obligations of the parties shall be governed in
all respects by, the laws of the Commonwealth of Pennsylvania. Any controversy,
dispute or claim arising out of or relating to this Agreement, or the breach
hereof, including a claim for injunctive relief, or any claim which, in any way
arises out of or relates to, Executive's employment with the Company or the
termination of said employment, including but not limited to statutory claims
for discrimination, shall be resolved by arbitration in accordance with the then
current rules of the American Arbitration Association respecting employment
disputes except that the parties shall be entitled to engage in all forms of
discovery permitted under the Pennsylvania Rules of Civil Procedure (as such
rules may be in effect from time to time). The hearing of any such dispute
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will be held in Pittsburgh, Pennsylvania, and the losing party shall bear the
costs, expenses and counsel fees of such proceeding. Executive and Company agree
for themselves, their, employees, successors and assigns and their accountants,
attorneys and experts that any arbitration hereunder will be held in complete
confidence and, without the other party's prior written consent, will not be
disclosed, in whole or in part, to any other person or entity except as may be
required by law. The decision of the arbitrator(s) will be final and binding on
all parties. Executive and the Company expressly consent to the jurisdiction of
any such arbitrator over them.
19. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall in no way affect the
interpretation of any of the terms or conditions of this Agreement.
20. Execution in Counterparts.This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above mentioned.
MYLAN LABORATORIES INC. EXECUTIVE:
By:
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Xxxxxx X. Xxxxx
Its:
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