Exhibit 10.18
CONSULTING & COUNSELING
AGREEMENT
THIS AGREEMENT, made and entered into this 19th day of December, 2002
but effective as of October 1, 2002 by and between MYLAN LABORATORIES INC., a
Pennsylvania Corporation having an address at 1030 Century Building, 000 Xxxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000 ("Company"), and COURY INVESTMENT ADVISORS, INC. a
Pennsylvania corporation, having an address at USX Tower, 30th Floor, 000 Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Consultant").
1. Scope of Engagement. The Company hereby engages Consultant, and the
Consultant hereby accepts such engagement, to perform such specialized services
as the Company may from time to time reasonably request. By way of illustration,
and not limitation, this engagement may include:
a. Assisting Company's management with its selection, implementation and
review of cash management portfolio and investment advisors;
b. Assisting Company's management in its review of service providers,
including trustees, investment managers and custodians, of the
Company's Section 401(k) Profit Sharing Plan ("401(k)Plan");
c. Assisting Company's management in the selection, implementation and
review of service providers, including brokers, custodians and record
keepers, of the Company's Employee Stock Purchase Plan ("ESP Plan")
and the Company's Stock Option Plans ("Stock Option Plans") and
successors Plans; and
d. Assisting Company's management with its establishment of investment
goals, standards and benchmarks relative to the Company's cash
management, 401(k) Plan and ESP Plan.
With respect to the above services, the Company acknowledges that the Consultant
shall not serve as a "fiduciary" as that term is defined under ERISA.
The Company understands and acknowledges that as a result of the activities of
the Consultant and Company's management a decision may be reached to authorize
the active discretionary management of all or a portion of the Company's cash or
investment assets by and/or among certain independent investment managers and/or
investment management programs, trustees, brokers, custodians and record keepers
("Independent Managers"). The Company shall be solely responsible for engaging
such Independent Managers. The terms and conditions under which the Company
shall engage the Independent Managers, including the compensation to be paid by
the Company to the Independent Managers, shall be set forth in a separate
written agreement between the Company and the designated Independent Managers.
Upon the Company's engagement of any Independent Manager, the Company
acknowledges that the designated Independent Manager, and not the Consultant,
shall maintain exclusive responsibility for the management and supervision of
Company investment portfolios.
Consultant's recommendations are based upon its professional judgment.
Consultant cannot guarantee the results of any of its recommendations.
Consultant shall not be responsible for acts or failure to act that occurred
prior to the effective date of this Agreement; nor shall the Consultant be
responsible for any acts or failure to act by the Company's officers and
employees.
The Company is free to obtain services from any professional source of its
choosing to implement the recommendations of Consultant. The Company will
retain absolute discretion over all implementation decisions.
The Company maintains sole responsibility to notify the Consultant if there is a
change in its objectives or procedures (or any other material issues) for the
purpose of Consultant reviewing/evaluating/revising its previous recommendations
and/or services to the Company.
As specifically set forth in the Consultant's written disclosure statement (see
paragraph 13 below), the Consultant's services pursuant to this Agreement do not
include, investment implementation, supervisory or management services, nor the
ongoing review or monitoring of investment portfolios.
Company authorizes Consultant to respond to inquiries from, and communicate and
share information with, Company's attorneys, accountants and other professionals
to the extent necessary in furtherance of Consultant's services under this
Agreement.
The Company agrees to provide information and/or documentation requested by
Consultant in furtherance of this Agreement as pertains to the Company's
investment objectives, needs and goals, and to keep Consultant informed of any
changes regarding same. The Company acknowledges that Consultant cannot
adequately perform its services for the Company unless the Company diligently
performs its responsibilities under this Agreement. Consultant shall not be
required to verify any information obtained from the Company, the Company's
attorneys, accountants or other professionals, and is expressly authorized to
rely thereon. The Company is free at all times to accept or reject any
recommendation from Consultant, and the Company acknowledges that is has the
sole authority with regard to the implementation, acceptance, or rejection of
any recommendation or advice from Consultant.
2. Term and Termination. The term of this Agreement shall commence October 1,
2002 and shall continue thereafter unless otherwise terminated by the parties as
provided in this Section 2. Unless terminated earlier for "Cause" (as defined
below) by the Company, the Company may terminate this Agreement prior to
expiration of the term hereof upon ninety (90) days written notice provided to
the Consultant; provided, however, that the compensation to be paid to the
Consultant pursuant to Section 4 shall continue to be paid through the end of
the year 2003. The Consultant may terminate this Agreement upon thirty (30) days
written notice to the Company. Upon and after January 1, 2004, unless terminated
earlier for Cause, the Company may terminate this Agreement upon ninety (90)
days written notice to the Consultant, and the consultant may terminate this
Agreement upon thirty (30) days written notice to the Company. Upon a
termination for Cause this Agreement shall terminate immediately.
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For purposes of this Agreement, "Cause" shall mean (i) an act by the Consultant
of fraud, theft, misappropriation, embezzlement or breach of trust against the
Company; (ii) the Consultant willfully or grossly neglected its duties and other
obligations hereunder; or (iii) the Consultant been convicted of a felony (by
trial or plea.) Without limiting the generality of the foregoing, the following
specific instances of conduct shall give rise to the right of the Company to
terminate the Consultant for Cause: (A) a material and substantial breach of the
confidentially obligations of the Company herein or a confidentially obligation
to which the Company or any affiliate is bound; (B) misappropriation of
Company's property or the property of affiliate of the Company; and (C)
falsification of Company's records.
3. Confidentiality. Consultant hereby agrees that all information of whatsoever
character either delivered to Consultant by Company or acquired by Consultant in
the course of performing Services for Company shall be maintained in strictest
confidence and shall not be disclosed to third parties without the written
consent of Company, 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 Company, and shall take no action which in any way is
detrimental to the interests of Company 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 Company.
4. Compensation. The Company shall pay the Consultant upon the execution of this
Agreement the sum of twenty-five thousand dollars ($25,000). On January 1,2003
and on the first day of each subsequent calendar quarter during the term of this
Agreement (including the quarterly date occurring within any ninety (90) day
notice period provided for in Section 2) the Company shall pay the Consultant
the sum of twenty-five thousand dollars ($25,000) for services to be rendered
during that quarter. Should the Consultant terminate this Agreement as provided
for in Section 2, the consultant shall promptly refund a pro-rata portion of
that quarter's fee paid to the Consultant.
The Company may also pay the Consultant a bonus in such amount and at such times
as the Company, in its sole and absolute discretion, may decide.
In addition to foregoing, the Company 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.
In the event that the Company requires consultation services in addition to
those identified in subparagraphs 1a-d above, the Consultant may determine to
charge for such additional services, the dollar amount of which shall be set
forth in a separate written notice to the Company.
5. Consultant Representations. Consultant hereby represents and warrants as
follows:
a. Good Standing. Consultant is a Pennsylvania corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania.
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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.
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.
6. Service To Other Companies. The Company acknowledges and agrees that its
engagement of Consultant's Services pursuant to this Agreement shall not be an
exclusive engagement. The Company further acknowledges and agrees that during
the term of this Agreement, Consultant shall have clients in addition to the
Company, and that Consultant may be obligated to perform services for such other
clients during said term.
7. 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.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
9. 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.
10. Consultant Liability. Except as otherwise provided by federal or state
securities laws, the Consultant, acting in good faith, shall not be liable for
any action, omission, recommendation/decision, or loss in connection with this
Agreement including, but not limited to, the investment and/or management of
Company assets, or the acts and/or omissions of other professionals or third
party service providers presented by the Consultant to the Company for its
review and consideration, including the Independent Managers, a broker-dealer
and/or custodian. The Consultant does not guarantee the future performance of
any investment portfolio or any specific level of performance, the success of
any recommendation or strategy that Consultant presents to the Company for its
review and consideration, or the success of the Independent Managers' management
of Company investment assets. The Company understands that investment
recommendations and decisions are subject to various market, currency, economic,
political and business risks, and that those investment recommendations or
decisions will not always be profitable.
11. Disclosure Statement. The Company acknowledges prior receipt of a copy of
the Disclosure Statement of the Consultant as same is set forth on Part II of
Form ADV.
12. Privacy Notice. The Company acknowledges receipt of the Consultant's Privacy
Notice.
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13. 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.
14. Captions. Section captions used in the Agreement are for convenience only,
and shall not be utilized in the construction or interpretation of this
Agreement.
15. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
CONSULTANT: COMPANY:
XXXXX INVESTMENT ADVISORS, INC. MYLAN LABORATORIES INC.
By: /s/ Xxxxx Xxxxx By: /s/ X. X. Xxxxxxxxx
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