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”).
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:
(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.
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Number of Options
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Exercise Price per
share
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Expiration Date
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257,500
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$
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13.68
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December 31, 2010
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37,900
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$
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23.27
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April 5,
2016
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50,000
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$
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15.80
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December 31, 2010
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65,768
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$
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11.18
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December 31, 2010
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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
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Number of RSUs
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4/5/06
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19,600
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7/27/07
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36,076
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3/18/08
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16,887
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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.
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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