EXHIBIT 10.1
FORM OF AIRCRAFT TIME SHARE
AGREEMENT BETWEEN CEPHALON, INC. AND
CERTAIN EXECUTIVE OFFICERS
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Name
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Title
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Frank Baldino, Jr., Ph.D.*
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Chairman and Chief Executive Officer
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J. Kevin Buchi
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Executive Vice President and Chief Financial
Officer
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Peter E. Grebow, Ph.D.
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Executive Vice President, Worldwide Technical
Operations
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John E. Osborn, Esq.
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Executive Vice President, General Counsel &
Secretary
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Robert P. Roche, Jr.
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Executive Vice President, Worldwide
Pharmaceutical Operations
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Lesley Russell
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Executive Vice President, Worldwide Medical
& Regulatory Operations
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Carl A. Savini
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Executive Vice President and Chief
Administrative Officer
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Jeffry L. Vaught, Ph.D.
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Executive Vice President and President, Research
& Development
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* On
November 1, 2006, Frank Baldino, Jr., Ph.D. entered into a Second
Amended and Restated Aircraft Time Sharing Agreement that matches
the form agreement attached hereto as Exhibit 10.1 in form and
substance.
AIRCRAFT TIME SHARING
AGREEMENT
THIS TIME SHARING AGREEMENT (this
“Agreement”) is entered into on November 1, 2006
by Cephalon, Inc. (“Owner”), a Delaware corporation,
with principal offices at 41 Moores Road, Frazer, PA 19355, and
.
(“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).
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.
In exchange for use of the Aircraft, Lessee shall pay
the direct operating costs of the Aircraft permitted pursuant
to FAR Section 91.501 for any flight conducted under
this Agreement or a lesser amount as determined by Owner in
its sole discretion. Pursuant to FAR Section 91.501(d) as in
effect from time to time, those direct operating costs shall be
limited to the following expenses for each use of the
Aircraft:
(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 provide to Lessee an invoice for each flight taken under
this Agreement (plus any excise taxes described in Section 6
below). 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,