Exhibit 10.6
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement
(the “Agreement”) is dated as of January 31, 2007,
by and between Mylan Laboratories Inc. (the “Company”)
and Rajiv Malik (“Executive”).
RECITALS:
WHEREAS, Executive and Matrix
Laboratories Limited, an Indian corporation (“Matrix”),
are party to that certain letter of appointment dated July 28,
2005 (the “Matrix Appointment Letter”), relating to
Executive’s employment as Chief Executive Officer of
Matrix;
WHEREAS, effective as of
January 8, 2007, the Company acquired a controlling interest
in Matrix; and
WHEREAS, the Company wishes to employ
Executive as Head of Global Technical Operations of the Company and
likewise wishes Executive to serve as acting Chief Executive
Officer of Matrix, in each case effective as of the date hereof,
but may be interested in utilizing Executive in other capacities,
in order to avail itself of Executive’s skills and abilities
in light of the Company’s business needs;
WHEREAS, in connection herewith, the
Matrix Appointment Letter will be terminated and superseded by an
agreement between Executive and Matrix relating to his service as
acting Chief Executive Officer of Matrix;
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;
Best Efforts . The Company agrees to employ Executive, and
Executive accepts employment by the Company, on the terms and
conditions provided herein. Effective as of the date hereof,
Executive shall serve as Head of Global Technical Operations of the
Company and as acting Chief Executive Officer of Matrix.
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 9
of this Agreement, through the third anniversary of the date hereof
(the “Third Anniversary”).
3. Performance of Duties
. (a) Best Efforts . During the term of this Agreement,
Executive shall devote his full working time and attention to the
business and affairs of the Company and its subsidiaries, parents
and affiliates (collectively the “Mylan Companies”) and
the performance of his duties hereunder, serve Mylan faithfully and
to the best of his ability, and use his best efforts to promote the
interests of the Mylan Companies. Without limitation, Executive
shall travel in connection with his employment in accordance with
the reasonable direction of the Chief Executive Officer of the
Company, commensurate with the activities of his position with the
Company and with Matrix. During the term of this Agreement,
Executive agrees to promptly and fully disclose to the Mylan
Companies, and not to divert to Executive’s own use or
benefit or the use or benefit of others, any business opportunities
involving any existing or prospective line of business, supplier,
product or activity of the Mylan Companies or any business
opportunities which otherwise should rightfully be afforded to the
Mylan Companies.
(b) No Power to Bind in
India . Notwithstanding anything to the contrary in this
Agreement, Executive shall not be authorized to bind the Company
contractually in India or otherwise to make commitments on behalf
of the Company in India. While in India, Executive shall not
represent or hold out to any person or statutory authority that he
is possessed of such authority, and the scope of Executive’s
authority and powers in India shall comprise solely in making
recommendations in respect of matters, which are assigned to him by
the Company, to persons designated and employed by the Company in
this behalf. It is understood that no such recommendation of
Executive shall be binding on the Company, in any manner
whatsoever.
4. Executive’s
Compensation . Executive’s compensation shall include the
following:
(a) Minimum Annual Base
Salary . The Executive’s minimum annual base salary (the
“Minimum Annual Base Salary”) shall be Four Hundred
Fifty Thousand Dollars ($450,000), payable in accordance with the
Company’s normal payroll practices for its executive
officers. The Minimum Annual Base Salary may be increased from time
to time at the discretion of the Compensation Committee of the
Board of Directors of the Company, any other committee authorized
by the Board of Directors or any officer having authority over
executive compensation.
(b) Annual Bonus .
Executive shall have an annual discretionary bonus opportunity of
seventy-five percent (75%) of Executive’s then-current
Minimum Annual Base Salary, to be paid upon satisfaction of certain
criteria established by the Compensation Committee of the Board of
Directors, or by any other committee or officer having authority
over executive compensation.
(c) Non-Qualified Stock
Options; Performance-Based Compensation . On the date hereof,
Executive shall receive non-qualified stock options to purchase one
hundred twenty thousand (120,000) shares of Mylan common stock
under the 2003 Long-Term Incentive Plan (the “Plan”) in
accordance with the following vesting schedule, provided
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that
Executive remains employed by Mylan on the following vesting dates:
on the first anniversary of the date hereof, Executive shall vest
in the first 30,000 shares; on the second anniversary of the date
hereof, Executive shall vest in an additional 30,000 shares; on the
third anniversary of the date hereof, Executive shall vest in an
additional 30,000 shares; and on the fourth anniversary of the date
hereof, Executive shall vest in the remaining 30,000 shares. These
options will be subject to all terms of the Plan and the applicable
stock option agreement. Notwithstanding any term or provision to
the contrary set forth elsewhere herein, Executive shall be
entitled to one hundred percent (100%) vesting of the
above-referenced options in the event Executive resigns for Good
Reason or is Terminated Without Cause, as provided in
Section 9 herein.
(d) Restricted Stock .
On the date hereof, Executive shall also receive a grant of ten
thousand (10,000) shares of restricted stock under the Plan, which
shares shall vest on the third anniversary of the date hereof,
provided that Executive remains employed by Mylan on such date.
These options will be subject to all terms of the Plan and the
applicable restricted stock award agreement.
(e) Fringe Benefits and
Expense Reimbursement . The Executive shall receive benefits
and perquisites of employment similar to those as have been
customarily provided to the Company’s other executive
officers including but not limited to, health insurance coverage,
short-term disability benefits, automobile usage and expense
reimbursement, and twenty (20) vacation days, in each case 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.
5. Confidentiality .
Executive recognizes and acknowledges that the business interests
of 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;
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(b) Executive will not make
copies of or otherwise disclose the contents of documents
containing or constituting Confidential Information;
(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.
6. Non-Competition and
Non-Solicitation . Executive agrees that for a period ending
one (1) year 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. 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
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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 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.
7. Severability . Should
a court of competent jurisdiction determine that any se
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