Exhibit 10.28
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 Xxxxx X.
XxXxxx ("Executive").
RECITALS:
WHEREAS, the Company and Executive are parties to that certain Executive
Employment Agreement dated July 22, 2002, as amended as of December 15, 2003
(the "Original Agreement");
WHEREAS, the Company wishes to continue to employ Executive as President
and Chief Operating Officer, and Executive desires to continue such employment;
WHEREAS, Executive is desirous of assisting the Company in whatever manner
the Chairman, Chief Executive Officer, and/or Board of Directors deem
appropriate; 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, on the terms and conditions
provided herein.
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 September 1, 2006.
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 $750,000, 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, any committee authorized by the Board or any officer having authority
over executive compensation.
(b) Annual Bonus. Executive shall be eligible to receive an annual
discretionary bonus targeted at one hundred percent (100%) of Executive's
then-current Minimum 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) Non-Qualified Stock Options. The remaining one-third (1/3) of the
fully vested non-qualified options granted to Executive in July 2002 pursuant to
the 1997 Mylan Laboratories Inc. Incentive Stock Option Plan, as amended (the
"Plan"), shall be exercisable on July 22, 2004. These options are subject to all
terms of the Plan 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 President and Chief Operating 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. 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;
(b) Executive will not make copies of or otherwise disclose the contents
of documents containing or constituting Confidential Information;
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(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 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
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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 Section
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8(c), 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. 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 provides ninety (90) days notice and resigns with Good Reason, as
defined herein, and complies in all respects with his obligations hereunder, or
if the Company terminates Executive without Cause, then Executive shall be paid,
within 30 days of his separation from the Company, a lump sum equal to his
then-current Minimum Base Salary plus the Prior Bonus (as defined below). If the
Executive resigns with Good Reason that is a Disability 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 his then-current
Minimum Base Salary plus the Prior Bonus. In either case, Employee Benefits
shall be continued for the 12 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 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. 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.
"Good Reason" shall mean a reduction of Executive's Minimum Base Salary
below the Minimum 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, a relocation of Executive's principal place of work to a
location more than thirty (30) miles from Morgantown, WV, the Executive's
Disability (as defined herein) or a resignation pursuant to Section 8(b).
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"Disability" means the inability to perform normal functions of the
positions due to mental, physical or emotional disability which is expected to
last more than one year.
(d) 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), or (c) of this Agreement, Executive shall
be paid, within 30 days of his separation from the Company, a lump sum equal to
his then-current Minimum Base Salary plus the Prior Bonus. In addition,
Executive's health insurance benefits shall be continued for twelve (12) 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.
(e) 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.
(f) 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.
(g) Death. The employment of Executive shall automatically terminate upon
Executive's death. For all purposes of this Agreement, any such termination
shall be treated in the same manner as a termination without Cause, as described
in Section 8(c) of this Agreement, and Executive's estate shall receive all
consideration, compensation and benefits that would be due and payable to
Executive for a termination without Cause.
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 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
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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. 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.
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10. Efforts. During the Term of Employment, Executive shall: (i) devote
his full working time and attention to the business and affairs of the Company
and to the performance of his duties hereunder; (ii) serve the Company
faithfully and to the best of his ability, and use his best efforts to promote
the interests of the Company; and (iii) follow and implement the policies and
directions of the Chief Executive Officer and Board of Directors.
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:
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 hi 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.
14. Modification and Waiver. This Agreement may not be changed or
terminated rally, 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
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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.
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 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
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.
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.
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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/ Xxxxx X. XxXxxx
--------------------------------------- -------------------------------
By: Xxxxxx X. Xxxxx Xxxxx X. XxXxxx
Its: Vice Chairman and CEO
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