Exhibit 10.30
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is dated as of
July 1, 2004, by and between Mylan Laboratories Inc. (the "Company") and Xxxxxx
X. Xxxxxxxx ("Executive").
RECITALS:
WHEREAS, the Company and Executive are parties to that certain
Executive Employment Agreement dated as of March 1, 2002, as amended as of
December 15, 2003 (the "Original Agreement");
WHEREAS, the Company wishes to continue to employ Executive as Chief
Legal Officer, and Executive desires to continue such employment; and
WHEREAS, the parties wish to terminate the Original Agreement and to
enter into this Agreement in its stead;
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. The Company agrees to employ Executive, and
Executive accepts employment by the Company, during the term of this Agreement
for the consideration and on the terms and conditions provided herein.
2. Effective Date: Term of Employment. This Agreement shall commence
and be effective for all purposes 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 June 1, 2006.
3. Executive's Compensation. Executive's compensation shall include the
following:
(a) Base Salary. During the term of this Agreement, as Executive's base
compensation for all services to be performed, the Company shall pay Executive
an annual salary of $450,000.00 (the "Base Salary"), payable in accordance with
the Company's normal payroll practices for its executive officers. This Base
Salary may be increased from time to time at the discretion of the Board of
Directors of the Company, any committee that may be authorized by the Board or
any officer having authority over executive compensation.
(b) Bonus. During the term of this Agreement, Executive shall be
eligible to receive an annual discretionary bonus targeted at one hundred
percent (100%) of Executive's Base Salary. Executive's eligibility for a bonus
and the amount of the bonus,
if any, shall be determined by the Board of Directors in its sole discretion, or
by any committee or officer having authority over executive compensation.
(c) Fringe Benefits and Other Agreements. During the term of
Employment, Executive shall receive such benefits of employment as are granted
senior executive employees at the Chief Legal Officer level, including but not
limited to, health insurance coverage, profit-sharing, participation in the
Company's 401(k) plan, short-term disability benefits, 25 vacation days, expense
reimbursement, and automobile usage in accordance with the plan documents or
policies that govern such benefits. The Company will also pay for or reimburse
Executive for professional fees and/or dues including fees and travel expenses
associated with continuing legal education requirements. Executive shall also be
considered eligible under such other agreements as are available to senior
executives at the Chief Legal Officer level such as the change in control
agreement.
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;
(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
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(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 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.
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(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 Without Good Reason. Executive may resign from
employment at any time upon 90 days written notice to the Company. During the 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. If Executive resigns without "Good Reason" (as
defined below), the Company shall have no liability to Executive under this
Agreement other than that the Company shall pay Executive's wages and benefits
through the effective date of Executive's resignation. Executive, however, will
continue to be bound by all provisions of this Agreement that survive
termination of employment. For purposes of this Agreement, "Good Reason" shall
mean a reduction of Executive's Base Salary below the Base Salary stipulated in
this Agreement, unless all other Chief officers of the Company (other than the
CEO) are required to accept a similar reduction, or a relocation of Executive's
principal place of work to a location more than thirty miles from Morgantown,
West Virginia (with the exception of a relocation within 30 miles of Pittsburgh,
PA which would be permissible unless and until Executive moves to Morgantown,
West Virginia). If Executive resigns
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with Good Reason and complies in all respects with his obligations hereunder,
the Company will pay Executive, within 30 days of his separation from the
Company, a lump sum equal to two times: (i) his then-current Base Salary plus
(ii) the Prior Bonus (as defined below). The Company shall also pay the cost of
continuing Executive's health insurance benefits for the 24 months following his
separation from the Company; 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 one
hundred percent (100%) vesting of all stock options described in this Agreement
in the event of a Resignation with Good Reason. As used herein, "Prior Bonus"
means the higher of: (i) the average of the annual bonuses paid to Executive in
the three fiscal years prior to his separation from the Company; or (ii) the
annual bonus applicable for the prior fiscal year.
(b) Termination for Cause. The Company agrees not to terminate
Executive's employment during the term of this Agreement except for Cause, as
defined herein, and agrees to give Executive written notice of its belief that
acts or events constituting Cause exist. Executive has the right to cure within
fourteen (14) days of the Company's giving of such notice, the acts, events or
conditions which led to such notice being given. For purposes of this Agreement,
"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. If the Company terminates Executive's
employment for Cause, the Company shall have no liability to Executive other
than to pay Executive's wages and benefits through the effective date of
Executive's termination. Executive, however, will continue to be bound by all
provisions of this Agreement that survive termination of employment.
(c) Termination Without Cause. If the Company discharges Executive
without Cause, the Company will pay Executive, within 30 days of his separation
from the Company, a lump sum equal to two times: (i) his then-current Base
Salary plus (ii) the Prior Bonus. The Company shall also pay the cost of
continuing Executive's health insurance benefits for the 24 months following his
separation from the Company; 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
one hundred percent (100%) vesting of all stock options described in this
Agreement in the event of a Termination without Cause. Executive, however, will
continue to be bound by all provisions of this Agreement that survive
termination of employment.
(d) Death or Incapacity. The employment of Executive shall
automatically terminate upon Executive's death or upon the occurrence of a
disability that renders Executive incapable of performing the essential
functions of his position within the meaning of the Americans With Disabilities
Act of 1990. For all purposes of this
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Agreement, any such termination shall be treated in the same manner as a
termination without Cause, as described in Section 9(c) above, and Executive, or
Executive's estate, as applicable, shall receive all consideration, compensation
and benefits that would be due and payable to Executive for a termination
without Cause.
(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 9 (a), (b), (c) or (d) of this Agreement, Executive
shall be paid severance, within 30 days of his separation from the Company, in
an amount equal to two times: (i) Executive's then-current Base Salary, plus
(ii) the Prior Bonus. In addition, Executive's health insurance benefits shall
be continued at the Company's cost for twenty four (24) months; 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) No Duty to Mitigate. There shall be no requirement on the part of
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 any contract and the amount of such payments and
benefits shall not be reduced by any compensation or benefits received by
Executive from other employment."
(g) 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.
9. Indemnification. 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, 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 at the request of the Company as a director or
officer, employee or agent 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
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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 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 10 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. Anything in this Section 11 to the contrary notwithstanding, the
Company shall not be liable for any settlement of any claim or action effected
without its written consent.
10. Efforts and Transition. During the Term of Employment, Executive
shall: serve the Company to the best of his ability, and use his best efforts to
promote the interests of the Company. The Company recognizes that Executive is
engaged in certain legal representations that will need to be transitional over
time. Said legal representations may not affect performance of Executive's
obligations under this Agreement.
11. 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.
12. 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:
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If to the Company: Mylan Laboratories Inc.
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000-0000
Attention: Chairman of the Board
With a noted copy to the Chief Executive Officer
If to Executive: at the most recent address on record at the Company.
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.
13. Withholding. All payments required to be made by the Company
hereunder to Executive or his dependents, beneficiaries, or estate will be
payroll deductions as may be required by law.
14. 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.
15. 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.
16. 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 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
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,
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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.
17. 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. The hearing of any such dispute will be held in Pittsburgh,
Pennsylvania, and the parties shall bear their own costs, expenses and counsel
fees. 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.
18. 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.
19. 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.
20. Original Agreement. The parties agree that the Original Agreement
is terminated and superseded in all respects upon the effectiveness of this
Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above mentioned.
MYLAN LABORATORIES INC. EXECUTIVE:
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxx
----------------------------------- ----------------------------------
By: Xxxxxx X. Xxxxx Xxxxxx X. Xxxxxxxx
Its: Vice Chairman and CEO
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