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SEPARATION AGREEMENT AND RELEASE

Release Agreement

SEPARATION AGREEMENT AND RELEASE | Document Parties: MYLAN INC. You are currently viewing:
This Release Agreement involves

MYLAN INC.

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Title: SEPARATION AGREEMENT AND RELEASE
Governing Law: Pennsylvania     Date: 2/23/2009
Industry: Biotechnology and Drugs     Sector: Healthcare

SEPARATION AGREEMENT AND RELEASE, Parties: mylan inc.
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Exhibit 10.36

SEPARATION AGREEMENT AND RELEASE

     This Separation Agreement and Release (“Agreement”) is made by and between Edward J. Borkowski (“Executive”) and Mylan Inc. (the “Company”) (collectively referred to as the “Parties” or individually referred to as a “Party”).

RECITALS

     WHEREAS, the Parties agree that Executive will separate from employment with the Company on such date as Executive and the Company shall mutually agree (the “Separation Date”). This Agreement shall become effective on the Separation Date and no payments shall be due hereunder unless Executive separates employment under this Agreement.

     NOW, THEREFORE, in consideration of the mutual promises made herein and intending to be legally bound hereby, the Company and Executive hereby agree as follows:

COVENANTS

     1.  Payments .

          a. Severance Payments .

               (i)  Employment Agreement . The Company will pay Executive an amount equal to 1.5 times the sum of Executive’s current base salary and his Prior Bonus, as defined in Executive’s Executive Employment Agreement dated as of July 1, 2004, as amended to date (the “Employment Agreement”), less applicable withholdings.

               (ii)  Retirement Benefit Agreement . The Company will pay Executive an amount representing payment in full of the vested portion of the Retirement Benefit under and as defined in Executive’s Retirement Benefit Agreement dated December 15, 2003, as amended to date (the “Retirement Benefit Agreement”).

               (iii) The amounts set forth in items (i) and (ii) above shall be paid to Executive on the date which is six months following the Separation Date (“Payment Date”); provided, however, that payment of such amounts shall be made if and only if this Agreement becomes effective and shall also be subject to Executive executing a Release (as defined in this Agreement) within twenty-one days following the Separation Date (and failing to revoke the Release) and compliance with the covenants set forth in Section 10 below.

          b. Additional Consideration . In consideration for the restrictive covenants and the Release and subject to the execution within twenty-one days following the Separation Date of the Release (and failing to revoke the Release) and compliance with the covenants set forth in Section 10 below, the Company will pay Executive an amount currently estimated at $237,811.34 as additional consideration hereunder (which amount may adjust based on the long-term applicable federal rate applicable for the month in which the Separation Date occurs). This payment will be paid to Executive within seven days of signing the Release (but in no event later than March 15, 2010).

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          c. COBRA Payments . Executive and his eligible dependents shall have the right to continue, at the Company’s expense, as participant(s) under the Company’s health benefits programs for up to 18 months after the Separation Date under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). Executive agrees to notify the Company’s Global Human Resources Department, in writing, immediately upon Executive’s and/or a covered dependent’s first date of receipt of health benefits from another source, or as otherwise required by COBRA, at which time the COBRA benefits provided to Executive and/or his covered dependents under this Agreement shall cease.

          d. Vacation Pay . The Company will pay Executive for all unused vacation time as of the Separation Date. This payment will be included in Executive’s final regular pay.

          e. Search Firms . Executive shall be entitled to retain any of the executive search firms retained by the Company, and the Company, as applicable, shall provide such search firms with written waivers or consents to permit Executive to do so.

     2.  Benefits . Executive’s group health insurance benefits shall cease on the Separation Date, subject to Executive’s right to continue his and/or a covered dependent’s group health insurance under the health benefit provisions of COBRA as described in Section 1(c) of this Agreement. Executive’s participation in all benefits and incidents of employment, including, but not limited to, vesting in stock options or restricted stock units, and the accrual of bonuses, vacation, and paid time off, and any additional 401(k) plan contributions, cease as of the Separation Date. Any equity awards (including stock option and restricted stock unit grants that are unvested as of the Separation Date shall be cancelled as of the Separation Date and shall not be exercisable following the Separation Date.

     Provided that this Agreement becomes effective, Executive may exercise the vested options listed below according the following schedule. If Executive does not exercise such options before the stock market closes on the expiration date(s) indicated below, such options will expire and will not be exercisable in the future.

 

 

 

 

 

 

 

 

 

 

 

Number of Options

 

 

 

Exercise Price per share

 

Expiration Date

 

257,500

 

 

 

 

$

13.68

 

 

December 31, 2010

 

37,900

 

 

 

 

$

23.27

 

 

April 5, 2016

 

50,000

 

 

 

 

$

15.80

 

 

December 31, 2010

 

65,768

 

 

 

 

$

11.18

 

 

December 31, 2010

     Provided that this Agreement becomes effective, on the Separation Date, Executive shall vest in the RSUs set forth below:

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Grant Date

 

 

 

Number of RSUs

4/5/06

 

 

 

 

19,600

 

7/27/07

 

 

 

 

36,076

 

3/18/08

 

 

 

 

16,887

 

In addition, any portion of Executive’s 401(k) account contributions that vested before the Separation Date remains vested, subject to the provisions of the governing 401(k) plan documents.

     3.  Payment of Salary and Receipt of All Benefits . Executive acknowledges and represents that, other than the consideration set forth in this Agreement, the Company has paid or provided all salary, wages, bonuses, accrued vacation/paid time off, premiums, leaves, reimbursable expenses, stock, stock options, vesting, shares pursuant to vested restricted stock units, and any and all other benefits and compensation due to Executive by the Company and its affiliates, including any payment under the Employment Agreement or the Retirement Benefit Agreement. To receive reimbursement for any final Company-related travel expenses, Executive must submit a final report of all such outstanding expenses within thirty (30) days after the Separation Date, accompanied by receipts and otherwise subject to the Company’s expense reimbursement policies.

     4.  Release of Claims . In exchange for the consideration contained in this Agreement, Executive, on behalf of himself and his heirs, executors, administrators, successors and assigns, hereby agrees to execute (and not revoke) the release of claims attached to this Agreement as Schedule A (the “Release”) within twenty-one days following the Separation Date.

     5.  Application for Employment . Executive understands and agrees that, as a condition of this Agreement, Executive shall not be entitled to any employment with the Company, and Executive hereby waives any right, or alleged right, of employment or re-employment with the Company. The Company acknowledges that it may in the future seek to engage Executive as a consultant on an independent-contractor basis; nevertheless the Company makes no commitment to doing so. Notwithstanding any other provision in this Agreement, this Paragraph shall be deemed to be inapplicable in the event that Executive is employed by an entity that is acquired by Company.

     6.  Cooperation . Prior to the Separation Date, Executive will cooperate in full with the Company to effect a smooth and effective transition to whoever will replace Executive. In addition, Executive hereby agrees that, for five years following the Separation Date, Executive will cooperate reasonably, at such times as do not interfere materially with Executive’s business or personal obligations, with any Releasees (as defined in the Release) and/or their advisors in connection with any matter that could give rise to any liability to a Releasee or their respective directors, officers or employees, including without limitation the conduct of any inquiry, examination, audit, investigation, correspondence, negotiation, dispute, appeal or litigation. Such cooperation shall include without limitation providing reasonable assistance to the directors, officers, employees and representatives of the relevant Releasees during usual business hours, subject to provision of reasonable notice. The Company shall reimburse Executive for all

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reasonable expenses and costs related to providing such assistance, subject to appropriate documentation thereof. Nothing in this provision is intended to prohibit Executive from providing complete and truthful testimony pursuant to any lawfully issued subpoena, court order, discovery demand or similar legal process.

     7.  Trade Secrets and Confidential Information/Company Property . Prior to the Separation Date, Executive will return all documents and other items provided to Executive by the Company, developed or obtained by Executive in connection with his employment with the Company, or otherwise belonging to the Company, including but not limited to the personal computer(s), Blackberry, and any and all documents or electronic files. Executive further represents that he has not misused or disclosed and will not misuse or disclose any of the Company’s confidential, proprietary, or trade secret information to any unauthorized party.

     8.  No Cooperation . Executive agrees that he will not knowingly encourage, counsel, or assist any attorneys or their clients in the presentation or prosecution of any disputes, differences, grievances, claims, charges, or complaints by any third party against any of the Releasees, unless under a subpoena or other court order to do so or as related directly to the ADEA waiver in this Agreement or as otherwise required by law. Executive agrees both to immediately notify the Company upon receipt of any such subpoena or court order, and to furnish, within three (3) business days of its receipt, a copy of such subpoena or other court order. If approached by anyone for counsel or assistance in the presentation or prosecution of any disputes, differences, grievances, claims, charges, or complaints against any of the Releasees, Executive shall state no more than that he cannot provide counsel or assistance.

     9.  Non-disparagement . Unless compelled to testify as a matter of law, Executive agrees to refrain from any disparaging statements, including but not limited to statements that amount to libel or slander, about the Company, its subsidiaries and affiliated companies, and/or any of its or their employees, officers, or directors, and/or any of the other Releasees including, without limitation, the business, products, intellectual property, financial standing, future, or other employment, compensation, benefit, or personnel practices of the Company. Executive further agrees to refrain from any disparaging statements, including libel or slander, about any of the Releasees that pertain to any personal or confidential matters that may cause embarrassment to any of the Releasees, or may result in any adverse effect on the professional or personal reputation of any of the Releasees.

     Unless compelled to testify as a matter of law, the Company agrees not to permit its employees to make any disparaging statements about Executive; provided, however , that Executive acknowledges and agrees that the Company’s obligations under this Paragraph extend only to the Company’s current senior executive officers and only for so long as each of them is an employee of the Company.

     10.  Breach .

     a.  Material Breach of Agreement . In addition to the rights provided in the “Attorneys’ Fees” section below, Executive acknowledges and agrees that if prior to the Payment Date the Company, after due inquiry, determines in good faith that there is factual

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evidence that Executive has materially breached Sections 4, 7, 8, and/or 9 of this Agreement (unless such breach constitutes a legal action by Executive challenging or seeking a determination in good faith of the validity of the waiver herein under the ADEA), or Section 6 (Non-Competition and Non-Solicitation) of the Employment Agreement, Executive shall not be entitled to receive payments hereunder. Furthermore, if any such payments have been made and a court or arbitrator determines that Executive has materially breached


 
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