Exhibit 10.13
TRANSITION AND SUCCESSION AGREEMENT
This Transition and Succession Agreement (hereinafter referred to as
"Agreement" or "the Agreement") is entered into as of the 10th day of November,
1999, by and between:
Mylan Laboratories Inc.,
a Pennsylvania Corporation,
with offices located at
0000 Xxxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
(hereinafter referred to as "Mylan" or "Company")
and
------------------------,
an employee of Mylan,
who resides at the address
set forth under the employee's signature
(hereinafter referred to as "Employee" or "You")
RECITALS
WHEREAS, the Board of Directors of Mylan (the "Board") considers it
essential to the best interests of the shareholders to promote a stable
employment environment which minimizes distractions that could interfere with
the ability of employees of the Company, particularly certain key employees, to
discharge their duties in a responsible and efficient manner;
WHEREAS, the Board recognizes the inherent uncertainties and
distractions among its key employees which can arise with respect to
continuation of employment with the Company under circumstances in which the
Company might receive a proposal, whether solicited by the Company, or
otherwise, concerning possible Change of Control;
WHEREAS, the Company wishes to promote and perpetuate a work
environment in which distractions and uncertainties, particularly those
resulting from a Potential Change of Control or a Change of Control, are
minimized; and
WHEREAS, Employee has been identified as a key employee whose continued
and dedicated service to the Company is considered to be in the best interests
of the shareholders.
WITNESSETH, therefore, that in consideration of the promises and
covenants set forth herein, the obligations assumed hereunder, and other good
and valuable consideration, the sufficiency and receipt of all which are hereby
acknowledged, the Company and Employee, intending to be legally bound, agree as
follows:
I. DEFINITIONS
Wherever used in this Agreement, capitalized terms shall be defined as
stated in this Article, and words, phrases, and terms parenthetically defined
elsewhere in the body of the Agreement shall throughout the Agreement be defined
by the meanings therein provided.
1.1 "Affiliate" shall mean any person, partnership, corporation,
organization, or entity ("Person") that; (a) directly or indirectly
controls, (b) is directly or indirectly controlled by, or (c) is under
common control with the Company. A Person shall be regarded as
controlling an entity, if; (i) it owns fifty percent (50%) or more of
the voting stock or other ownership interest of such other entity; or
(ii) it directly or indirectly possesses sufficient authority to direct
the adoption and execution of the policies, management, and operations
of such Party by any means whatsoever.
1.2 "Cause" shall mean only Your willful and substantial misconduct with
respect to the business and affairs of the Company; Your gross neglect
of duties, dishonesty or deliberate disregard of any material rule or
policy of the Company; Your commission of an act involving embezzlement
or fraud or a felony pertaining to antitrust, taxes, medicare/medicaid
fraud or abuse or the development, approval, manufacturing,
distribution or sale of prescription drug products or medical devices
or Your commission of a similar felony.
1.3 Change Of Control shall mean a change of control of a nature that would
be required to be reported in response to Item 6 (e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), whether or not the Company is then
subject to such reporting requirement; provided that, without
limitation, such a Change of Control shall be deemed to have occurred
if (a) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the "beneficial owner" (as
determined for purposes of Regulation 13D-G under the Exchange Act as
currently in effect), other than a Company-sponsored employee benefit
plan, directly or indirectly, of securities of the Company representing
twenty percent (20%) or more of the combined voting power of the
Company's then outstanding securities; or (b) during any period of two
consecutive years, individuals who at the beginning of such period
constitute the Board and any new director, whose election to the Board
or nomination for election to the Board by the Company's stockholders
was approved by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors at the beginning of the
period or whose election to the Board or nomination for election to the
Board by the Company 's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board; or (c) the stockholders
of the Company approve (i) a merger or consolidation of the Company
with any corporation or other entity other than a merger or
consolidation which would result in the holders of the voting
securities of the Company outstanding immediately prior thereto holding
immediately thereafter securities representing more than eighty percent
(80%) of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation (ii) a plan of complete liquidation of the
Company or an (iii) agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets; PROVIDED,
HOWEVER, that if such a merger, consolidation, plan of liquidation or
sale of substantially all assets is not consummated following such
stockholder approval and the transaction is abandoned, then the Change
of Control shall be deemed not to have occurred. Notwithstanding the
foregoing, in no event shall a Change of Control be deemed to occur as
the result of the formation of a Holding Company.
1.4 "Company" shall mean Mylan and its Subsidiaries and Affiliates.
1.5 "Contract Payment(s)" shall mean any payment or benefit to be received
by You pursuant to the terms of this Agreement.
1.6 "Date of Termination of Employment" shall mean: the date Your
employment with the Company is terminated, which, if such termination
occurs during a Potential Change of Control Period or after a Change of
Control and (i) if Your employment is terminated by the Company for any
reason other than Cause, or (ii) by You for anything other than Good
Reason, other than those described in Section 8.1 hereof shall not be
less than thirty (30) days from the date such Notice of Termination of
Employment is given.
1.7 "Disability" shall mean Your permanent and total disability as such
term is defined under Section 22(e) (3) of the Internal Revenue Code of
1986, as amended (the "Code"). Any question as to the existence of Your
Disability upon which You and the Company cannot agree shall be
determined by a qualified independent physician selected by You (or, if
You are unable to make such selection, such selection shall be made by
any adult member of Your immediate family or Your legal
representative). The determination of such physician made in writing to
the Company and to You shall be final and conclusive for all purposes
addressed or contemplated pursuant to or under this Agreement.
1.8 "Effective Date" shall mean the day and date first hereinabove entered.
1.9 "Employee" shall mean the name of the employee appearing on page one
(1) of this Agreement.
1.10 "Good Reason" shall mean the occurrence, without Your express written
consent, with respect to subparagraphs (a) through (g), (i), and (j) of
any of the following circumstances unless, in the case of paragraphs
(a), (e), (f), (g), or (h) hereof, such circumstances are fully
corrected prior to the Date of Termination of Employment specified in
the Notice of Termination of Employment given in respect thereof:
(a) the assignment to You of any duties or responsibilities
inconsistent with Your status as an employee of the Company,
Your removal from that position, or a substantial diminution
in the nature or status of Your responsibilities and authority
from those in effect immediately prior to the Change of
Control, or during a Potential Change of Control;
(b) a reduction in Your annual base salary in effect on the date
of this Agreement, as increased thereafter and prior to the
Change of Control, or failure to pay You annual wages in an
amount equal to the average annual amount of wages (base
salary plus bonus) paid to you during each of the three (3)
calendar years ending immediately prior to the Change of
Control;
(c) the relocation of the office in which You are based at the
commencement of a Potential Change of Control or at the time
of a Change of Control to a location more than thirty (30)
miles from its location as of the Effective Date;
(d) the failure by the Company to pay to You any portion of any
installment of deferred compensation, or lump sum under any
deferred compensation program of the Company within seven (7)
days after you give the Company written notice of the failure
to pay such compensation when it is due;
(e) the failure by the Company to continue in effect any incentive
compensation plan in which You participate prior to the Change
of Control, unless an equitable alternative compensation
arrangement (embodied in an ongoing substitute or alternative
plan) has been provided for You, or the failure by the Company
to continue Your participation in any such incentive plan on
the same basis, both in terms of the amount of benefits
provided and the level of Your participation relative to other
participants, as existed at the time of the Change of Control;
(f) except as required by law, (i) the failure by the Company
to continue to provide You with benefits at least as
favorable as those enjoyed by You under the employee benefit
and welfare plans of the Company including, without
limitation, profit sharing, life insurance, medical, dental,
health and accident, disability, deferred compensation,
retirement and savings plans, in which You were participating
at the time of a Potential Change of Control or a Change of
Control, (ii) the taking of any action by the Company
which would directly or indirectly materially reduce any
of such benefits or deprive You of any material fringe benefit
enjoyed by You at the time of a Potential Change of Control
or a Change of Control, or the failure by the Company to
provide You with the number of paid vacation days and holidays
to which You are entitled at the time of the Change of
Control;
(g) the failure of the Company to obtain a satisfactory agreement
from any successor to assume and agree to perform this
Agreement;
(h) any purported termination of Your employment which is not
effected pursuant to a Notice of Termination of Employment
satisfying the requirements set forth herein for such notice
(for purposes of this Agreement, no such purported termination
shall be effective);
(i) if the Company continues to exist and be a company registered
under the Securities Exchange Act of 1934, as amended,
after the Change of Control and continues to have in effect
the Stock Option Plan, or a stock option plan substantially
similar to the Stock Option Plan, the failure of the Company
to grant to You options for a number of shares of Common
Stock of the Company that as a percentage of the
outstanding stock of the Company is at least as great as
the average annual percentage of the outstanding Common
Stock of the Company with respect to which you received
options during the three calendar years immediately
prior to the Change of Control, which options are on terms,
including pricing relative to the market price at the time
of grant, that are at least as favorable as the terms of
grant last made to you prior to the Change of Control;
(j) failure to include You in any program or plan of benefits
(including, but not limited to stock option and defined
compensation plans), and in like amounts or coverage, which is
provided or otherwise offered to other employees of like or
similar positions, duties, responsibilities, or status
following a Change of Control;
(k) Your Disability.
1.11 "Holding Company" shall mean a company that as the result of a
reorganization, merger, consolidation or other transaction holds all of
the outstanding voting securities of the Company, if immediately
following the transaction all or substantially all of the individuals
or entities who were beneficial owners of voting securities of the
Company immediately prior to the transaction hold voting securities of
the Holding Company having substantially the same rights and in
substantially the same proportions as they held in the Company
immediately prior to the transaction.
1.12 "Mylan" shall mean Mylan Laboratories Inc.
1.13 "Notice of Termination of Employment" shall mean a notice which shall
state the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Your employment under the
provision so indicated.
1.14 "Other Payment" shall mean any payment or other benefit received or, to
be received, by You in connection with termination of Your employment
or contingent upon a Change of Control pursuant to any plan, or
arrangement or agreement with the Company other than this Agreement.
1.15 "Party" shall mean either the Company or You.
1.16 "Payments" shall mean Contract Payments and/or Other Payments.
1.17 "Potential Change of Control" shall be deemed to have occurred if: (a)
the Company enters into an agreement, the consummation of which would
result in the occurrence of a Change of Control; (b) any person
(including the Company) publicly announces an intention to take or to
consider taking actions, which if consummated, would constitute a
Change of Control; (c) any person becomes the beneficial owner,
directly or indirectly, of securities of the Company representing ten
percent (10%) or more of the combined voting power of the Company's
then outstanding securities; or (d) the Board adopts a resolution to
the effect that, for purposes of this Agreement, a Potential Change of
Control of the Company has occurred. A Potential Change of Control, and
the "Potential Change of Control Period" relating thereto, shall be
deemed to end, when the agreement referred to in clause (a) of the
immediately preceding sentence is terminated; when the person making a
public announcement described in clause (b) announces the termination
of his previously announced intention or effort or has made no further
such announcements or efforts for a period of six months; six months
after a person who becomes the beneficial owner of securities as
described in clause (c) of the immediately preceding sentence last
increases the percentage ownership of the combined voting power of the
Company's outstanding voting securities he beneficially owns; or the
Board withdraws the resolution described in clause (d) of the
immediately preceding sentence or six months after the Board last took
action with respect to the subject matter of such resolution.
1.18 "Retirement" shall mean Your voluntary termination of employment with
the Company in accordance with the Company's retirement policy
(excluding early retirement) generally applicable to its salaried
employees or in accordance with any retirement arrangement established
by the Company with Your consent with respect to You.
1.19 "Separation Period" shall mean the period commencing on the first
anniversary of a Change of Control and ending ninety (90) days
thereafter.
1.20 "Stock Option Plan" shall mean the Mylan Laboratories Inc. 1997
Incentive Stock Option Plan and any successor thereto implemented
prior to a Change of Control.
1.21 "Subsidiary" shall mean any corporation, partnership, limited
partnership, or other entity in which the Company owns more than
one-half (1/2) of the equity interest, assets, or voting stock or
voting control of such entity.
1.22 "Voluntary Termination" shall mean Your resignation from employment
with the Company for anything other than Good Reason.
1.23 "You" or "Your" shall refer to Employee.
II. SCOPE
As an inducement for You to remain employed by the Company during a
Potential Change of Control and for a period of two (2) years after a Change of
Control, the Company agrees, subject to the rights of each Party during the
Separation Period, to provide the benefits as set forth in Article VIII of this
Agreement in the event of a Change of Control.
III. TERM OF AGREEMENT
3.1 The term of this Agreement shall begin on the Effective Date and shall
continue in full force and effect unless and until it is terminated as
set forth elsewhere herein.
3.2 This Agreement may be terminated at any time, other than during a
Potential Change of Control Period or following a Change of Control, by
the Company upon the giving of at least twelve (12) months prior
written notice of termination.
IV. TERMINATION OF THE AGREEMENT
The term of this Agreement shall expire on the first to occur of the
following events:
(i) termination of this Agreement pursuant to Section 3.2 hereof;
(ii) termination of Your employment by either You or the Company
other than during a Potential Change of Control Period or
following a Change of Control; and
(iii) the second anniversary of a Change of Control.
V. CONTINUATION OF EMPLOYMENT
You agree that, subject to the terms and conditions of this Agreement,
in the event of a Potential Change of Control occurring after the Effective
Date, You; (i) will not Voluntarily terminate Your employment with the Company
for a period of six (6) months from the date on which such Potential Change of
Control occurs; and (ii) for a period of two (2) years following a Change of
Control, subject to the terms set forth elsewhere herein. If more than one
Potential Change of Control occurs during the term of this Agreement, the
provisions of the preceding sentence shall be applicable to each such Potential
Change of Control occurring prior to the occurrence of a Change of Control.
VI. TERMINATION FOLLOWING CHANGE OF CONTROL
6.1 If a Change of Control shall have occurred, You shall be entitled to
the benefits provided for herein upon the subsequent termination of
Your employment with the Company during the term of this Agreement
unless such termination is a result of; (a)Your Retirement; or (b)
Voluntary Resignation without Good Reason; or (c) by the Company for
Cause.
6.2 Notwithstanding anything set forth to the contrary in Section 6.1
above, if You Voluntarily Terminate Your Employment for any reason
during the Separation Period, You shall be entitled to receive the
Contract Payments.
VII. NOTICE OF TERMINATION OF EMPLOYMENT
Any purported termination of Your employment during a Potential Change
of Control Period or after a Change of Control by: (i) the Company; or (ii) by
You shall be communicated by written Notice of Termination of Employment to the
other Party.
VIII. COMPENSATION UPON TERMINATION
During a Potential Change of Control and following a Change of Control,
upon termination of Your employment, under the circumstances contemplated below,
You shall be entitled to the following benefits:
8.1 If Your employment is terminated by the Company for Cause, or by You
other than for Good Reason, the Company shall pay You Your full base
salary and bonus, if any, through the Date of Termination of Employment
at the rate in effect at the time Notice of Termination of Employment
is given, and shall also pay to You any Other Payments due and payable
to you, if any.
8.2 If Your employment with the Company is terminated; (i) by the Company
for other than Cause; (ii) by You for Good Reason; or (iii) as a result
of Your death during the period beginning with the first anniversary of
a Change of Control, and ending on the second anniversary of the Change
of Control, or if Your employment with the Company is terminated by You
for any reason during the Separation Period (any of the foregoing
events being "Qualifying Events"), You shall receive the Contract
Payments as provided for elsewhere herein, and Other Payments, if any.
In addition:
(a) Upon the occurrence of a Qualifying Event, the
Company shall pay to You in a lump sum on a date that
is not later than the fifth (5th) day following the
Date of Termination of Employment as severance pay
(a) an amount equal to 2.99 times the amount of base
salary and cash bonus paid by the Company as
reflected on Your Wage and Tax Statement (Form W-2)
for the tax year immediately preceding the date of
the Qualifying Event which resulted in the Company's
obligation to pay the amounts provided for herein.
(b) You, together with Your dependents, will continue
following such termination of employment to
participate fully, with no contribution to the cost
required of You or them, in all accident,
hospitalization, medical and health and life
insurance plans maintained or sponsored by the
Company immediately prior to the Change of Control or
the beginning of the Potential Change of Control
Period, as the case may be, or receive substantially
the equivalent coverage (or the full value thereof in
cash) from the Company, until the third anniversary
of such termination.
(c) The Contract Payments to be made to You pursuant to
this Article shall not be reduced by the amount of
any Other Payments or the value of any benefit
received or to be received by You in connection with
Your termination of employment or contingent upon a
Change of Control of the Company (whether payable
pursuant to the terms of this Agreement or any other
agreement, plan or arrangement with the Company, or
predecessor or successor of the Company, or any
person whose actions result in a Change of Control of
the Company).
8.3 Anything in this Agreement to the contrary notwithstanding, if it is
determined that any payment or distribution by the Company to or for
Your benefit (whether paid or payable or distributed or distributable
under the terms of this Agreement or otherwise) (a "Payment") would be
nondeductible by Company for Federal income tax purposes because of
Section 280G of the Code, then the aggregate present value of amounts
payable to or distributable to or for Your benefit under this Section
("Agreement Payments") or, if You so elect, the aggregate present value
of other Payments (exclusive of any other Payments under this
Agreement) shall be reduced (but not below zero) to the Reduced Amount.
8.4 For purposes of this Agreement, the "Reduced Amount" shall be the
amount which maximizes the aggregate present value of Agreement
Payments or Payments, as the case may be, without causing any Payment
to be nondeductible because of Section 280G of the Code. The
determination to be made under this Agreement shall be binding upon the
Company and You and shall be made within twenty (20) days after the
Your Date of Termination by Deloitte and Touche LLP (the "Accounting
Firm"), which shall be compensated by the Company and shall provide
detailed calculations thereof to the Company and to You. However, You
shall elect which and how much of the Agreement Payments or other
Payments shall be reduced consistent with the calculations. Present
value, for purposes of the calculations under this Agreement, shall be
determined in accordance with Section 280G(d)(4) of the Code.
8.5 As a result of the uncertainty in the application of Section 280G of
the Code at the time of the initial determination by the Accounting
Firm under this Agreement, it is possible that Agreement Payments may
be paid or distributed by the Company which should not be paid or
distributed ("Overpayment") or that additional Agreement Payments which
have not been paid or distributed by the Company should be paid or
distributed ("Underpayment"), in each case, consistent with the
calculation of the Reduced Amount under this Agreement. If the
Accounting Firm determines that an Overpayment has been made, any of
the Overpayment shall be treated for all purposes as a loan to You
which You shall repay to Company, together with interest at a rate
equal to one hundred twenty percent (120%) of the applicable Federal
rate provided for in Section 7872(f)(2) of the Code. However, no amount
shall be payable by You to the Company (or if paid by You to the
Company shall be returned to the Executive) if and to the extent the
payment would not reduce the amount which is subject to taxation under
Section 4999 of the Code. If the Accounting Firm determines that an
Underpayment has occurred, any of the Underpayment shall be paid
promptly by the Company to or for Your benefit together with interest
at a rate equal to one hundred twenty percent (120%) of the applicable
Federal rate provided for in Section 7872(f)(2) of the Code.
8.6 You shall not be required to mitigate the amount of any payment
provided for herein by seeking other employment or otherwise, nor shall
the amount of any payment or benefit provided for herein be reduced by
any compensation earned by You as the result of employment by another
employer or by retirement benefits received after the Date of
Termination or otherwise.
IX. DATE OF TERMINATION OF EMPLOYMENT
Within thirty (30) days after any Notice of Termination of Employment
is received, the recipient of such notice shall have ten (10) days to notify the
Party providing said notice that a dispute exists with respect to such notice.
The Date of Termination of Employment shall then become null and void, and the
actual Date of Termination of Employment shall become the date on which the
dispute is resolved, either by mutual written agreement of the Parties, by a
binding arbitration award, or the decision of a court of competent jurisdiction,
from which no appeal is or can be taken; provided further that the Date of
Termination of Employment shall be extended by a notice of dispute only if such
notice is given in good faith and the Party giving such notice pursues the
resolution of such dispute with reasonable diligence. Notwithstanding the
pendency of any such dispute, the Company will continue to pay Your full
compensation in effect when the notice giving rise to the dispute was given
(including, but not limited to, base salary and bonus) and continue You as a
participant in all incentive compensation, benefit and insurance plans in which
You were participating when the notice giving rise to the dispute was given,
until the dispute is finally resolved in accordance with this Article. Amounts
paid under this Article are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other amounts due under
this Agreement.
X. SUCCESSOR; BINDING AGREEMENT
10.1 The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially
all of the business and/or assets of the Company to expressly assume
and agree to perform this Agreement in the same manner and to the same
extent that the Company is required to perform it. Failure of the
Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle You to compensation from the Company in the
same amount and on the same terms as You would be entitled hereunder if
You had terminated Your employment for Good Reason following a Change
of Control, except that for purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be deemed the
Date of Termination of Employment. As used in this Agreement, "Company"
shall mean the Company as hereinabove defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
10.2 This Agreement shall inure to the benefit of and be enforceable by Your
personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If You should
die while any amount would still be payable to You hereunder if You had
continued to live, all such amount, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to Your
devisee, legatee or other designee or, if there is no such designee, to
Your estate.
10.3 Within twenty (20) days after a Change of Control Date, the Company
shall deposit in a trust designed in accordance with Revenue Procedure
92-64 or any successor thereto having a trustee independent of the
Company and any successor thereto an amount equal to the total amount
necessary to make the payments contemplated by Section 8.2. The
Executive shall be entitled to receive funds held in such trust from
the trustee upon the Executive's delivery to the trustee of a written
certification by the Executive that a termination of his employment has
occurred and that, as a result, the Executive is entitled to payment
under Article VIII of this Agreement. Any funds which the Executive so
receives shall be credited against the amount owed by the Company to
the Executive pursuant to this agreement. The Company shall pay any and
all expenses of establishing and maintaining the trust.
XI. NONCOMPETITION AGREEMENT
11.1 In consideration, among other things, for the provisions of Section 8.2
hereof, You agree that during a period commencing on the Date of
Termination of Employment relating to a termination that entitles you
to the Contract Payments and ending one year thereafter (the "Covenant
Period"), You will not, directly or indirectly, own, manage, operate,
control or participate in the ownership, management, operation or
control of, or be connected as an officer, employee, partner, director
or otherwise with, or (other than through the ownership of not more
than five percent (5%) of the voting stock of any publicly held
corporation) have any financial interest in, or aid or assist anyone
else in the conduct of, a business which at the time of such
termination competes in the United States with a business conducted by
the Company or by any group, division or subsidiary of the Company
(collectively with the Company, the "Company Group") on the Date of
Termination. Notwithstanding the foregoing, Your employment by a
business that competes with the business of the Company, or retention
of You as a consultant by any such business shall not violate this
paragraph if Your duties and actions for the business are solely for
groups, divisions or subsidiaries that are not engaged in a business
that competes with a business conducted by the Company. No business
shall be deemed to be a business conducted by the Company unless the
Company was engaged in the business at the Date of Termination of
Employment and continues to be engaged in the business and at least
twenty-five percent (25%) of the Company's consolidated gross sales and
operating revenues, or net income, is derived from, or at least
twenty-five percent (25%) of the Company's consolidated assets are
devoted to, such business and no business shall be deemed to compete
with a business conducted by the Company unless at least twenty-five
percent (25%) of the consolidated gross sales and operating revenues,
or net income, of any consolidated group that includes the business, is
derived from, or at least twenty-five percent (25%) of the consolidated
assets of any such consolidated group are devoted to, such business.
11.2 During the Covenant Period, You shall not solicit on behalf of himself
or any other person the services, as employee, consultant or otherwise,
of any person who on the Date of Termination of Employment is employed
by the Company Group, whether or not such person would commit any
breach of his contract of service in leaving such employment, except
for any employee (a) whose employment is terminated by the Company or
any successor thereof prior to such solicitation of such employee, (b)
who initiates discussions regarding such employment without any
solicitation by You, (c) who responds to any public advertisement
unless such advertisement is designed to target, or has the effect of
targeting, employees of the Company, or (d) who is initially solicited
for a position other than by You and without any suggestion or advice
from You. Nothing herein shall restrict businesses which employ You or
retain You as an executive from soliciting from time to time employees
of the Company, if (x) such solicitation occurs in the ordinary course
of filling the business's employment needs, and (y) the solicitation is
made by persons at the business other than You who have not become
aware of the availability of any specific employees as a result of the
advice of You.
11.3 Sections 11.1 and 11.2 shall be of no force or effect if Your
employment is terminated and You are not as a result thereof entitled
to any payments or benefits under Section 8.2 hereof or if, within
twenty (20) days after the date of the termination of his employment,
he waives his right to such payments and benefits in writing.
XII. ENFORCEMENT OF RIGHTS
12.1 Should it become necessary for You in Your sole discretion to retain
legal counsel to represent You with respect to any dispute which may
arise between You and the Company regarding the interpretation,
application, or enforcement (an "Action") of any term or provision set
forth in this Agreement, the Company will pay to You an amount equal to
any legal fees and expenses ("Expenses") incurred by You with respect
to any such Action.
12.2 Payment to You of the Expenses shall be made within fifteen (15) days
of receipt by the Company of an invoice(s) by Your counsel. The Company
shall not require a detailed statement of Expenses before paying the
invoice, but reserves the right to demand and receive detailed invoices
at the conclusion of the Action.
12.3 If the Company fails to timely make any payment to the You that is
required to be made hereunder, the amount not timely paid shall bear
interest after the date it is due hereunder at the rate of 18% per
annum until it is paid.
XIII. EMPLOYMENT STATUS
Except as expressly set forth herein, this Agreement does not create
any new, or enlarge, Your employment rights beyond those of an at-will employee.
As such, You are not obligated to remain employed with the Company for any
particular period of time and the Company is not required to employ You for any
specified period. Unless otherwise specifically provided for herein, You may
terminate Your employment with the Company at any time and for any reason, and
likewise, the Company may terminate Your employment at any time for any reason.
XIV. NOTICE
For the purpose of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States registered mail,
return receipt requested, postage prepaid, or by Federal Express or other
recognized overnight delivery service, addressed to the address set forth on the
first page of this Agreement with respect to the Company and on the signature
page with respect to You, provided that all notices to the Company shall be
directed to the attention of the Vice President and General Counsel of the
Company, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
XV. VALIDITY
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
XVI. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together will constitute one
and the same instrument.
XVII. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in accordance with the
rules of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator' s award in any court having jurisdiction; provided,
however, that You shall be entitled to seek specific performance of Your right
to be paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement.
XVIII. OTHER DUTIES
Each of the Parties shall perform all other duties and acts, execute
and deliver all other documents, and provide all other information and
assistance, whether or not specifically provided for herein, as may be
reasonably necessary, beneficial or appropriate to further the purposes and
carry out the intent of this Agreement.
XIX. WAIVER
19.1 The waiver by either Party to this Agreement of a breach of any
provision of the Agreement or of any right contained herein shall not
operate as or be construed as a waiver of any subsequent breach or
right granted herein.
19.2 Your continued employment shall not constitute consent to or be
construed as a waiver of any rights with respect to any facts or
circumstances regarding or constituting Good Reason.
XX. DOCUMENT PREPARATION
The Parties acknowledge that this Agreement is a product of
negotiations and that no inference should be drawn regarding the drafting of
this document.
XXI. HEADINGS
Article headings are set forth herein for the purpose of convenience
only. Such headings shall not be considered or otherwise referred to when
interpreting or applying any term, provision or condition set forth herein.
XXII. SINGULAR AND PLURAL
The singular form of any noun or pronoun shall include the plural when
the context in which such a word is used is such that it is apparent the
singular is intended to include the plural.
XXIII. GOVERNING LAW
The laws of the State of West Virginia shall be determinative of any
controversies arising hereunder as to the application or interpretation of any
term or provision set forth herein.
XXIV. MODIFICATION
This Agreement may be changed, amended, or otherwise modified by, and
only by, a written statement or amendment executed by You and the Company that
expresses their intent to change the Agreement and specifically describes such
change(s).
IN WITNESS of their Agreement to the terms and conditions contained
herein Mylan and Employee have caused the following signatures to be affixed
hereto as of the day and year first set forth above.
EMPLOYEE MYLAN LABORATORIES INC.
___________________________________ BY:
TITLE:
ADDRESS: __________________________
__________________________
