Exhibit 10.6
AMENDED AND RESTATED AIRCRAFT
TIME SHARING AGREEMENT
THIS AMENDED AND RESTATED TIME
SHARING AGREEMENT (this “Agreement”) is entered into on
March 27, 2006 by Cephalon, Inc. (“Owner”), a Delaware
corporation, with principal offices at 41 Moores Road, Frazer, PA
19355, and Frank Baldino, Jr., Ph.D.
(“Lessee”).
BACKGROUND:
A.
Owner is the registered owner of
certain civil aircraft as described in the Specification Sheet
attached hereto and made a part hereof, as Exhibit A (the
“Aircraft”).
B.
Owner employs a fully qualified
flight crew to operate the Aircraft;
C.
From time to time, Lessee may desire
to lease the Aircraft and flight crew from owner for Lessee’s
personal travel at Lessee’s discretion on a time sharing
basis as defined in Section 91.501(c)(1) of the Federal Aviation
Regulations (“FAR”).
D.
This Agreement sets forth the
understanding of the Parties as to the terms under which Owner will
provide Lessee with the use, on a periodic basis, of the Aircraft;
and
E.
The use of the Aircraft will at all
times be pursuant to and in full compliance with the requirements
of FAR Part 91 and particularly, Sections 91.501(b)(6),
91.501(c)(1), and 91.501(d).
F.
The Owner and Lessee entered that
certain Time Sharing Agreement dated January 23, 2006 and now
intend to amend and restate that agreement in its
entirety.
NOW, THEREFORE, Owner and Lessee
agree as follows:
1.
Subject to the terms and conditions
of this Agreement, Owner agrees to lease the Aircraft to Lessee at
Lessee’s discretion from time-to-time on a non-exclusive
basis and on an “as needed and as available basis”
pursuant to the provisions of FAR Section 91.501(b)(6),
91.501(c)(1), and 91.501(d) and to provide a fully qualified flight
crew for all operations for flights scheduled in accordance with
the terms of this Agreement.
2.
This Agreement shall remain in
effect unless and until terminated by either party for any reason
upon written notice to the other, such termination to become
effective ten (10) days from the date of the notice or upon the
earlier of (a) the
termination of this Agreement by
consent of Owner and Lessee, (b) the date of Lessee’s
termination of employment with Owner and (c) the date of
Lessee’s death.
3.
Lessee may use the Aircraft from
time-to-time, subject to the prior permission and approval of
Owner, for any and all purposes allowed by FAR Section
91.501(b)(6). Lessee’s use shall include the use of the
Aircraft by guests of the Company if they accompany him or her on
the flight. Lessee shall not accept any compensation whatsoever for
any flight conducted under this Agreement.
4.
Lessee shall pay Owner for each
flight conducted under this Agreement the actual expenses of each
specific flight as authorized by FAR Section 91.501(d) as in effect
from time to time. On the date of this Agreement these expenses
include and are limited to:
(a)
fuel, oil, lubricants and other
additives;
(b)
travel expenses of the crew,
including food, lodging and ground transportation;
(c)
hangar and tie down costs away from
the Aircraft’s base of operation;
(d)
insurance obtained for the specific
flight;
(e)
landing fees, airport taxes and
similar assessments;
(f)
customs, foreign permit and similar
fees directly related to the flight;
(g)
in-flight food and
beverages;
(h)
passenger ground
transportation;
(i)
flight planning and weather contract
services; and
(j)
an additional charge equal to one
hundred percent (100%) of the expenses listed in clause (a)
above.
5.
Owner will pay all expenses related
to the operation of the Aircraft when incurred and will provide
monthly invoices to Lessee for the expenses enumerated in Section 4
hereof. Lessee shall pay the amounts invoiced within fifteen (15)
days after receipt of the related invoice.
6.
The Parties acknowledge that with
the exception of the expenses for in-flight food and beverages and
passenger ground transportation, the payment of expenses set forth
in Section 4 hereof are subject to the federal excise tax imposed
under Section
4261 of the Internal Revenue Code.
Lessee shall pay Owner for such expenses and the amount of such
taxes within fifteen (15) days of receipt of the applicable
invoice. Owner agrees to collect and remit to the Internal Revenue
Service for the benefit of Lessee all such federal excise
taxes.
7.
In the event that Lessee desires to
use the Aircraft pursuant to this Agreement, Lessee will so notify
Owner and will provide Owner with requests for flight time and
proposed flight schedules as far as possible in advance of any
given flight. Requests for flight time shall be in a form, whether
oral or written, mutually convenient to and agreed upon by Owner
and Lessee. In addition to proposed schedules and flight times,
Lessee shall provide at least the following information for each
proposed flight at some time prior to scheduled departure as
required by Owner or Owner’s flight crew:
(a)
departure point;
(b)
destinations;
(c)
date and time of flight;
(d)
the number and identity of any
anticipated passengers;
(e)
the nature and extent of luggage
and/or cargo to be carried;
(f)
the date and time of a return
flight, if any; and
(g)
any other information concerning the
proposed flight that may be pertinent or required by Owner or
Owner’s flight crew.
8.
Owner shall have sole and exclusive
authority over the scheduling of the Aircraft, including which
aircraft is used for any particular flight.
9.
Owner shall be solely responsible
for securing maintenance, preventive maintenance, and required or
otherwise necessary inspections on the Aircraft and shall take such
requirements into account in scheduling flights of the Aircraft. No
period of maintenance, preventive maintenance, or inspection shall
be delayed or postponed for the purpose of scheduling the Aircraft,
unless such maintenance or inspection can be safely conducted at a
later time in compliance with all applicable laws and regulations,
and within the sound discretion of the pilot-in-command. The
pilot-in-command shall have final and complete authority to cancel
any flight for any reason or condition that in his or her judgment
would compromise the safety of the flight.
10.
Owner shall be responsible for the
physical and technical operation of the Aircraft and the safe
performance of all flights and shall retain full authority and
control, including exclusive operational control, and possession of
the Aircraft at all times during the term of this Agreement. Owner
shall employ, pay for, and provide to Lessee a qualified flight
crew for each flight undertaken under this Agreement. In accordance
with
applicable FAR, the qualified flight
crew provided by Owner will exercise all of its duties and
responsibilities with respect to the safety of each flight
conducted under this Agreement. Lessee agrees that the flight crew,
in its sole discretion, may terminate any flight, refuse to
commence any flight, or take other action that in the considered
judgment of the pilot-in-command is necessitated by considerations
of safety. Without limiting the generality of Section 11, no such
action of the pilot-in-command shall create or support any
liability for loss, injury, damage, or delay to Lessee or any other
person.
11.
THE OWNER AND LESSEE AGREE THAT
OWNER SHALL IN NO EVENT BE LIABLE TO LESSEE OR HI
