AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and
Restated Executive Employment Agreement (the
“Agreement”) is dated as of April 3, 2006, by and
between Mylan Laboratories Inc. (the “Company”) and
Robert J. Coury (the “Executive”).
WHEREAS, the
Company and the Executive are parties to a certain Executive
Employment Agreement dated as of July 22, 2002, as amended
December 15, 2003 (the “Prior
Agreement”).
WHEREAS, the
parties wish to amend and restate the Prior Agreement effective as
of the Effective Date (as hereinafter defined).
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
the Executive agree as follows:
1.
Employment of Executive; Position and Duties . The Executive
shall continue to serve as a member of the Board of Directors (the
“Board”) of the Company and the Executive shall
continue to be employed by the Company as Chief Executive Officer
of the Company. In the role of Chief Executive Officer, the
Executive shall have the duties, roles, and responsibilities
traditionally assigned to the chief executive officer of a public
company. Unless the Executive determines otherwise, the
Executive’s principal office shall be in the Pittsburgh
metropolitan area. The Executive agrees to devote his full business
time and attention to his duties, provided, however, the Executive
shall be permitted reasonable time to devote to personal
investments, service on corporate, professional and charitable
boards and other philanthropic activities and service as a
fiduciary or administrator with respect to estates and
trusts.
2.
Effective Date; Term of Employment . This Agreement shall
commence and be effective as of April 1, 2006 (the
“Effective Date”), and shall terminate at the close of
business on the third anniversary of the Effective Date unless
sooner terminated in accordance with the terms of this Agreement or
extended as hereinafter provided. The term of this Agreement shall
be extended, without further action by the Company or the
Executive, on the first anniversary of the Effective Date (the
“Extension Effective Date”) and on each subsequent
anniversary of the Effective Date (each also an “Extension
Effective Date”), for successive periods of twelve months
each, unless either party shall have given written notice to the
other party, in the manner set forth in Section 12 below,
prior to the Extension Effective Date in question, that the term of
this Agreement that is in effect at the time such written notice is
given is not to be extended or further extended, as the case may be
(the period during which this Agreement is effective being referred
to as the “Term of Employment”).
3.
Executive’s Compensation . During the Term of
Employment, the Executive’s “Compensation” shall
include the following:
(a)
Annual Base Salary . The Executive’s annual base
salary as of the Effective Date shall be equal to $1,500,000,
payable in accordance with the Company’s normal payroll
practices for its executive officers. The Executive’s base
salary may be increased from time to time at the discretion of the
Board (or any committee thereof having authority over executive
compensation (the “Committee”)) and once increased may
not be decreased. The base salary as in effect from time to time
shall be referred to as the “Base Salary.”
(b)
Annual Bonus . The Executive shall be eligible to
participate in the Company’s annual executive incentive or
bonus plan as in effect from time to time, with the opportunity to
receive an annual award in respect of each fiscal year of the
Company ending during the Term of Employment in accordance with the
terms and conditions of such plan, with a minimum target equal to
100% of the highest Base Salary during such year (or such higher
percentage as the Board or the Committee may prescribe).
(c)
Fringe Benefits and Expense Reimbursement . The Executive
shall receive such benefits and perquisites of employment as have
been customarily provided to the Company’s Chief Executive
Officer, including but not limited to, health insurance coverage,
profit-sharing, participation in the Company’s 401(k) plan,
short-term disability benefits, thirty (30) vacation days,
expense reimbursement, and automobile usage in accordance with the
plan documents or policies that govern such benefits. Because of
heightened security concerns, the Executive shall also be entitled
to personal usage of the Company’s aircraft for the Executive
and the Executive’s family for vacations and other personal
purposes. To the extent that any income or employment taxes
(“Taxes”) are due with respect to the Executive’s
use of an automobile or the Executive’s or his family’s
personal use of the Company’s aircraft, the Company shall
provide the Executive with a “gross up” of Taxes due on
such use. The Company shall reimburse Executive for all ordinary
and necessary business expenses in accordance with established
Company policy and procedures.
(d)
Long-Term Compensation . During the Term of Employment, the
Executive shall be eligible to participate in long term incentive
and equity plans of the Company as in effect from time to time, on
a basis at least as favorable as other senior
executives.
4.
Confidentiality . The Executive recognizes and acknowledges
that the business interests of the Company and its subsidiaries,
parents and affiliates (collectively the “Affiliated
Companies”) require a confidential relationship between the
Company and the 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 Affiliated 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 the Executive in the course of
the Executive’s employment with the Company. Accordingly, the
Executive agrees to keep secret and treat as confidential all
Confidential Information whether or not copyrightable or
patentable, and agrees not to knowingly use or aid others in
learning of or using any Confidential
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Information
except in the ordinary course of business and in furtherance of the
Company’s interests. During the Term of Employment and at all
times thereafter, except insofar as is necessary disclosure
consistent with the Company’s business interests:
(a) The
Executive will not knowingly disclose any Confidential Information
to anyone outside the Affiliated Companies;
(b) The
Executive will not make copies of or otherwise knowingly disclose
the contents of documents containing or constituting Confidential
Information;
(c) As to
documents which are delivered to the Executive or which are made
available to him as a necessary part of the working relationships
and duties of the Executive within the business of the Company, the
Executive will treat such documents confidentially and will treat
such documents as proprietary and confidential, not to be knowingly
reproduced, disclosed or used without appropriate authority of the
Company;
(d) The
Executive will not knowingly advise others that the information
and/or know-how included in Confidential Information is known to or
used by the Company; and
(e) The
Executive will not in any manner knowingly disclose or use
Confidential Information for the Executive’s own account and
will not knowingly 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.
5.
Non-Competition and Non-Solicitation . The Executive agrees
that during the Term of Employment and for a period ending two
(2) years after the Executive ceases to be employed by the
Affiliated Companies (a “Termination of Employment”)
for any reason:
(a) The
Executive shall not 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 Affiliated
Companies, or which competes or has announced an intention to
compete in any line of business with the Affiliated Companies
within North America. Notwithstanding the foregoing, the 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 Affiliated Companies, provided that the 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
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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
Affiliated Companies or its businesses or regarding the conduct of
businesses similar to those of the Affiliated 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 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 the 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) The
Executive will not 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 Affiliated Companies.
(c) The
Executive will not solicit, entice or otherwise induce any employee
of the Affiliated Companies to leave the employ of the Affiliated
Companies for any reason whatsoever; nor will the Executive
knowingly aid, assist or abet any other person or entity in
soliciting or hiring any employee of the Affiliated Companies, nor
will the Executive otherwise interfere with any contractual or
other business relationships between the Affiliated Companies and
its employees.
6.
Severability y. 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.
7.
Injunctive Relief . The parties agree that in the event of
the Executive’s material violation of sections 4 and/or 5 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,
the 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.
8.
Termination of Employment .
(a)
Resignation . The Executive may resign from employment
without Good Reason (as defined below) at any time upon thirty
(30) days written notice to the Company. During the thirty
(30)-day notice period, the Executive will continue to perform
duties and abide by all other terms and conditions of this
Agreement. Additionally, the Executive will use his best efforts
to
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effect a smooth
and effective transition to whoever will replace the Executive. The
Company reserves the right to accelerate the effective date of the
Executive’s resignation. The Company shall have no liability
to the Executive under this subsection other than the
Executive’s wages and benefits through the effective date of
the Executive’s resignation and any vested benefits payable
to the Executive under plans and agreements of the Company or any
predecessor to the Company and any amounts payable to Executive
under any agreement between the Executive and any of the Affiliated
Companies, including but not limited to the Retirement Benefit
Agreement entered into by and between the Executive and the
Company, as amended from time to time (collectively the
“Accrued Benefits”). The Executive will continue to be
bound by all provisions of this Agreement that survive the
Executive’s Termination of Employment.
(b)
Termination for Cause . The Company may terminate the
Executive’s employment for Cause. “Cause” shall
mean: (1) the Executive’s willful and continued gross
neglect of duties (other than resulting from incapacity due to
physical or mental illness or following the Executive’s
delivery of a Notice of Termination for Good Reason (as defined
herein)), or (2) the willful engaging by the Executive in
illegal conduct that is materially and demonstrably injurious to
the Company or (3) the willful engaging by the Executive in
gross misconduct that is materially and demonstrably injurious to
the Company which, in the case of clauses (1) and (3), has not
been cured within 30 days after a written demand for
substantial performance is delivered to the Executive by the Board
that specifically identifies the manner in which the Board believes
that the Executive has grossly neglected his duties or has engaged
in gross misconduct. No act, or failure to act, on the part of the
Executive shall be considered “willful” unless it is
done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive’s action or
omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board or based upon the advice of counsel for
the Company shall be conclusively presumed to be done, or omitted
to be done, by the Executive in good faith and in the best
interests of the Company. The cessation of employment of the
Executive shall not be deemed to be for Cause unless and until
there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board (excluding the
Executive, if the Executive is a member of the Board) at a meeting
of the Board called and held for such purpose (after reasonable
notice is provided to the Executive and the Executive is given an
opportunity, together with counsel for the Executive, to be heard
before the Board), finding that, in the good faith opinion of the
Board, Cause exists and specifying the particulars thereof in
detail. I
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