Privileged and
Confidential
EXECUTIVE EMPLOYMENT
AGREEMENT
This Executive
Employment Agreement (the “Agreement”) is dated as of
June 1, 2009, by and between Mylan Inc. (the
“Company” or “Mylan”) and Jolene Varney
(“Executive”).
WHEREAS, the
Company wishes to employ Executive as Executive Vice President and
Chief Financial Officer as of the Effective Date (defined below),
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;
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, as of the Effective Date, on the terms and conditions
provided herein. As of the Effective Date, Executive shall serve as
Executive Vice President and Chief Financial Officer.
2.
Effective Date: Term of Employment . This Agreement shall
commence and be effective as of June 8, 2009 (the
“Effective Date”) and shall remain in effect, unless
earlier terminated, or extended or renewed, as provided in
Section 9 of this Agreement, through the second anniversary of
the Effective Date (the “Second
Anniversary”).
3.
Performance of Duties; Best Efforts . During the term of
this Agreement, Executive shall devote her full working time and
attention to the business and affairs of Mylan and the performance
of her duties hereunder, serve Mylan faithfully and to the best of
her ability, and use her best efforts to promote Mylan’s
interests. Without limitation, Executive shall travel in connection
with her employment in accordance with the reasonable direction of
the Chief Executive Officer of the Company, commensurate with the
activities of her position. During the term of this Agreement,
Executive agrees to promptly and fully disclose to Mylan, 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 Mylan or any business opportunities which otherwise
should rightfully be afforded to Mylan.
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 one hundred percent (100%) 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.
Such bonus shall be paid no later than March 15
th of the year following the year in which the
annual award is no longer subject to a substantial risk of
forfeiture.
(c)
Non-Qualified Stock Options . On the Effective Date,
Executive shall receive non-qualified stock options to purchase
50,000 shares of Mylan common stock under the 2003 Long-Term
Incentive Plan (the “Plan”) in accordance with the
following vesting schedule, provided that Executive remains
employed by Mylan on the following vesting dates: on the first
anniversary of the Effective Date, Executive shall vest in the
first 16,667 shares; on the second anniversary of the Effective
Date, Executive shall vest in an additional 16,666 shares; and on
the third anniversary of the Effective Date, Executive shall vest
in the remaining 16,667 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 . Executive shall be awarded 10,000
restricted stock units (“RSUs”) under the Plan, in
accordance with the following vesting schedule, provided that
Executive remains employed by Mylan on the following vesting dates:
on the first anniversary of the Effective Date, Executive shall
vest in the first 2,500 RSUs; on the second anniversary of the
Effective Date, Executive shall vest in an additional 2,500 RSUs;
and on the third anniversary of the Effective Date, Executive shall
vest in the remaining 5,000 RSUs. These RSUs will be subject to all
terms of the Plan and the applicable RSU award
instrument.
(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 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 Company and its subsidiaries, parents
and affiliates (collectively the “Mylan Companies”)
require a confidential relationship between the Company
and
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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;
(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 her 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 herself 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
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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 within North America.
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 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 her
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 her shares or ownership interest
in such manner as she 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 herself 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 section or sub-section of this Agreement is
unenforceable because one or all of them are vague or overly broad,
the parties agree that this Agreement may and shall be enforced to
the maximum extent permitted by law. It is the intent of the
parties that each section and sub-section of this Agreement be a
separate and distinct promise and that unenforceability of any one
subsection shall have no effect on the enforceability of
another.
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8.
Injunctive Relief . The parties agree that in the event of
Executive’s violation of Sections 5 and/or 6 of this
Agreement or any subsection thereunder, that the damage to the
Company will be irreparable and that money damages will be
difficult or impossible to ascertain. Accordingly, in addition to
whatever other remedies the Company may have at law or in equity,
Executive recognizes and agrees that the Company shall be entitled
to a temporary restraining order and a temporary and permanent
injunction enjoining and prohibiting any acts not permissible
pursuant to this Agreement. Executive agrees that should either
party seek to enforce or determine its rights because of an act of
Executive which the Company believes to be in contravention of
Sections 5 and/or 6 of this Agreement or any subsection
thereunder, the duration of the restrictions imposed thereby shall
be extended for a time period equal to the period necessary to
obtain judicial enforcement of the Company’s
rights.
9.
Termination of Employment .
(a)
Resignation . (i) Executive may resign from employment
at any time upon 90 days written notice to the Chief Executive
Officer. During the 90 days notice period Executi
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