-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BuD7DwOVVdJ8vuWBOQkKY5j5FWS+3SsNDO2ArJpAW1tRcDIrFFE/0N6Isiu9X6aB 8STWXRoAlT3OWcTV3wrLFg== 0000950152-04-008730.txt : 20041203 0000950152-04-008730.hdr.sgml : 20041203 20041202215922 ACCESSION NUMBER: 0000950152-04-008730 CONFORMED SUBMISSION TYPE: 10-Q/A PUBLIC DOCUMENT COUNT: 9 CONFORMED PERIOD OF REPORT: 20040930 FILED AS OF DATE: 20041203 DATE AS OF CHANGE: 20041202 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MYLAN LABORATORIES INC CENTRAL INDEX KEY: 0000069499 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 251211621 STATE OF INCORPORATION: PA FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 10-Q/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-09114 FILM NUMBER: 041181991 BUSINESS ADDRESS: STREET 1: 1500 CORPORATE DRIVE STREET 2: SUITE 400 CITY: CANONSBURG STATE: PA ZIP: 15317 BUSINESS PHONE: 724-514-1800 MAIL ADDRESS: STREET 1: 1500 CORPORATE DRIVE STREET 2: SUITE 400 CITY: CANONSBURG STATE: PA ZIP: 15317 FORMER COMPANY: FORMER CONFORMED NAME: FRM CORP DATE OF NAME CHANGE: 19711003 10-Q/A 1 j1082801e10vqza.txt MYLAN LABORATORIES, INC. ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q/A AMENDMENT NO. 1 [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended SEPTEMBER 30, 2004 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from _________ to _________ Commission file number 1-9114 MYLAN LABORATORIES INC. (Exact name of registrant as specified in its charter) Pennsylvania 25-1211621 (State of (I.R.S. Employer incorporation) Identification No.)
1500 Corporate Drive Canonsburg, Pennsylvania 15317 (Address of principal executive offices) (Zip Code) (724) 514-1800 (Registrant's telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding twelve months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES [v] NO [ ] Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). YES [v] NO [ ] Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date.
CLASS OF OUTSTANDING AT COMMON STOCK NOVEMBER 1, 2004 ------------ ---------------- $0.50 par value 269,103,475
================================================================================ EXPLANATORY NOTE Pursuant to this Form 10-Q/A, the registrant amends and restates "Part II - - Item 6" (Exhibits and Reports on Form 8-K) in its entirety to add certain exhibits to subpart(a) that were inadvertently omitted from the original filing. Other than the foregoing and the new certifications of the CEO and CFO of the registrant, as required by Rule 12b-15 under the Securities Exchange Act of 1934, no other changes have been made to the Form 10-Q for the quarterly period ended September 30, 2004. In order to preserve the nature and character of the disclosures set forth in such Form 10-Q as originally filed, this Amendment No. 1 does not reflect events occurring after the filing of the original Quarterly Report on Form 10-Q on November 8, 2004, or modify or update the disclosures presented in the original Quarterly Report on Form 10-Q, except to reflect the revisions as described above. ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K a. Exhibits 2.1 Agreement and Plan of Merger dated as of July 23, 2004 by and among the registrant, Summit Merger Corporation and King Pharmaceuticals, Inc., filed as Exhibit 99.1 to the Report on Form 8-K filed with the SEC on July 26, 2004, and incorporated herein by reference. 3.1 Amended and Restated Articles of Incorporation of the registrant, as amended to date, filed as Exhibit 3.1 to the Form 10-Q for the quarterly period ending June 30, 2003, and incorporated herein by reference. 3.2 Bylaws of the registrant, as amended to date, filed as Exhibit 3.2 to the Form 10-Q for the quarterly period ending September 30, 2003, and incorporated herein by reference. 4.1(a) Rights Agreement dated as of August 22, 1996, between the registrant and American Stock Transfer & Trust Co., filed as Exhibit 4.1 to Form 8-K filed with the SEC on September 3, 1996, and incorporated herein by reference. 4.1(b) Amendment to Rights Agreement dated as of November 8, 1999, between the registrant and American Stock Transfer & Trust Co., filed as Exhibit 1 to Form 8-A/A filed with the SEC on March 31, 2000, and incorporated herein by reference. 10.27 Executive Employment Agreement, dated as of July 1, 2004, between the registrant and Edward J. Borkowski. 10.28 Executive Employment Agreement, dated as of July 1, 2004, between the registrant and Louis J. DeBone. 10.29 Executive Employment Agreement, dated as of July 1, 2004, between the registrant and John P. O'Donnell. 10.30 Executive Employment Agreement, dated as of July 1, 2004, between the registrant and Stuart A. Williams. 10.31 Form of Indemnification Agreement between the registrant and each Director of 10.31 the registrant. 31.1 Certification of CEO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 31.2 Certification of CFO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 32 Certification of CEO and CFO pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
b. Reports on Form 8-K On July 2, 2004, the Company filed a Report on Form 8-K regarding a motion filed with the U.S. Court of Appeals for the D.C. Circuit. On July 26, 2004, the Company filed a Report on Form 8-K announcing the Company had entered into an Agreement and Plan of Merger to acquire King Pharmaceuticals, Inc. 2 On July 26, 2004, the Company filed a Report on Form 8-K announcing earnings for the three months ended June 30, 2004. On August 16, 2004, the Company filed a Report on Form 8-K regarding an amendment to the Rights Agreement between the Company and American Stock Transfer & Trust Company. On August 18, 2004, the Company filed a Report on Form 8-K regarding an update in its fentanyl litigation pending in the U.S. District Court for the District of Columbia. On August 30, 2004, the Company filed a Report on Form 8-K regarding an update in its "authorized generics" lawsuit against the FDA pending in the U.S. District Court for the Northern District of West Virginia. On September 9, 2004, the Company filed a Report on Form 8-K regarding a further amendment to the Rights Agreement between the Company and American Stock Transfer & Trust Company. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Report on Form 10-Q/A for the quarterly period ended September 30, 2004, to be signed on its behalf by the undersigned thereunto duly authorized. MYLAN LABORATORIES INC. December 2, 2004 /s/ Edward J. Borkowski ----------------------- Edward J. Borkowski Chief Financial Officer 3 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - ----------- ----------- 2.1 Agreement and Plan of Merger dated as of July 23, 2004 by and among the registrant, Summit Merger Corporation and King Pharmaceuticals, Inc., filed as Exhibit 99.1 to the Report on Form 8-K filed by the registrant on July 26, 2004, and incorporated herein by reference. 3.1 Amended and Restated Articles of Incorporation of the registrant, as amended to date, filed as Exhibit 3.1 to the Form 10-Q for the quarterly period ending June 30, 2003, and incorporated herein by reference. 3.2 Bylaws of the Registrant, as amended to date, filed as Exhibit 3.2 to the Form 10-Q for the quarterly period ending September 30, 2003, and incorporated herein by reference. 4.1(a) Rights Agreement dated as of August 22, 1996, between the registrant and American Stock Transfer & Trust Co., filed as Exhibit 4.1 to Form 8-K filed with the SEC on September 3, 1996, and incorporated herein by reference. 4.1(b) Amendment to Rights Agreement dated as of November 8, 1999, between the registrant and American Stock Transfer & Trust Co., filed as Exhibit 1 to Form 8-A/A filed with the SEC on March 31, 2000, and incorporated herein by reference. 10.27 Executive Employment Agreement, dated as of July 1, 2004, between the registrant and Edward J. Borkowski. 10.28 Executive Employment Agreement, dated as of July 1, 2004, between the registrant and Louis J. DeBone. 10.29 Executive Employment Agreement, dated as of July 1, 2004, between the registrant and John P. O'Donnell. 10.30 Executive Employment Agreement, dated as of July 1, 2004, between the registrant and Stuart A. Williams. 10.31 Form of Indemnification Agreement between the registrant and each Director of the registrant. 31.1 Certification of CEO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 31.2 Certification of CFO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 32 Certification of CEO and CFO pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
EX-10.27 2 j1082801exv10w27.txt EXHIBIT 10.27 EXHIBIT 10.27 EXECUTIVE EMPLOYMENT AGREEMENT This Executive Employment Agreement (the "Agreement") is dated as of July 1, 2004, by and between Mylan Laboratories Inc. ("Mylan" or "Company") and Edward J. Borkowski ("Executive"). RECITALS WHEREAS, the Company and Executive are parties to that certain Executive Employment Agreement dated as of March 4, 2002, as amended as of December 15, 2003 (the "Original Agreement"); WHEREAS, the Company wishes to continue to employ Executive as Chief Financial Officer, and Executive desires to continue such employment; and WHEREAS, the parties wish to terminate the Original Agreement and to enter into this Agreement in its stead; In consideration of the promises and mutual obligations of the parties contained herein, and for other valuable considerations, the receipt and sufficiency of which are hereby acknowledged, Mylan and Executive agree as follows: 1. Employment of Executive. Mylan agrees to employ Executive as Chief Financial Officer, and Executive accepts employment by Mylan during the term of this Agreement for the consideration and on the terms and conditions provided herein. 2. Effective Date: Term of Employment. This Agreement shall commence and be effective for all purposes as of the date hereof and shall remain in effect through December 31, 2006, unless earlier terminated, or extended or renewed, as provided in Section 9 of this Agreement. 3. Best Efforts. During the Term of this agreement, Executive shall devote his full working time and attention to the business and affairs of Mylan and the performance of his duties hereunder, serve Mylan faithfully and to the best of his ability, and use his best efforts to promote Mylan's interests. 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. (a) Base Salary. As Executive's base compensation for all services to be performed, Mylan shall pay Executive an annual salary of three hundred fifty thousand dollars ($350,000) (the "Base Salary"), payable in accordance with Mylan's normal payroll practices for its executive officers. This Base Salary may be increased from time to time at the discretion of the Board of Directors, any committee that may be authorized by the Board or any officer having authority over executive compensation. (b) Discretionary Bonus. Executive shall be eligible to receive an annual discretionary bonus targeted at one hundred percent (100%) of Executive's Base Salary. Executive's eligibility for a bonus and the amount of the bonus, if any, shall be determined by the Board of Directors in its sole discretion, or by any committee or officer having authority over executive compensation. (c) Non-Qualified Stock Options. The remaining one-third (1/3) of the non-qualified options granted to Executive in March 2002 pursuant to the 1997 Mylan Laboratories Inc. Incentive Stock Option Plan, as amended (the "Plan"), shall vest on March 4, 2005, provided that Executive remains employed by Mylan on that date. These options are 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 option in the event Executive resigns for Good Reason or is Terminated Without Cause as provided in Section 9 herein. (d) Fringe Benefits. Executive shall receive fringe benefits of employment, such as health insurance coverage, profit-sharing, short-term disability benefits, 25 days vacation, expense reimbursement, and participation in a 401(k) plan, as are customarily provided to other senior executive employees of Mylan in accordance with the plan documents or policies that govern such benefits. Mylan reserves the right to unilaterally modify or terminate benefits provided under any plan, and the Executive is entitled only to such benefits as are available under the then-effective plan. 5. Confidentiality. Executive recognizes and acknowledges that the business interests of Mylan and its subsidiaries, parents and affiliates (collectively 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 Mylan Companies. Accordingly, Executive agrees to keep secret and treat as confidential all Confidential Information whether or not copyrightable or patentable, and 2 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 Mylan Companies' interests. During the term of this Agreement and at all times thereafter: (a) Executive will not, directly or indirectly, disclose any Confidential Information to anyone outside the Mylan Companies, without the approval of the individual to whom Executive reports, (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 Mylan Companies, Executive will treat such documents confidentially and will treat such documents as proprietary and confidential, not to be reproduced, disclosed or used without the approval of the individual to whom Executive reports; (d) Executive will not advise others that the information and/or know how included in Confidential Information is known to or used by the Mylan Companies; 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 Mylan Companies. The obligations set forth in this paragraph are in addition to any other agreements the Executive may have with any of the Mylan Companies and any and all rights the Mylan Companies may have under state or federal statutes or common law. 6. Non-Competition and Non-Solicitation. Executive agrees that during the term of this Agreement and for a period ending one (1) year after termination of Executive's employment 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 3 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 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 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. 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 Mylan will be irreparable and that money damages will be difficult or impossible to ascertain Accordingly, in addition to whatever other remedies Mylan may have at law or in equity, Executive recognizes and agrees that Mylan 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. 4 9. Termination of Employment. (a) Resignation. (i) Executive may resign from employment at any time upon 90 days written notice to the Chairman of the Board of Directors and the Chief Executive Officer. During the 90 days notice period Executive will continue to perform duties and abide by all other terms and conditions of this Agreement. Additionally, Executive will use his best efforts to effect a smooth and effective transition to whomever will replace Executive. Mylan reserves the right to accelerate the effective date of Executive's resignation, provided that Executive shall receive Executive's salary and benefits through the ninety (90) day period. (ii) If Executive resigns without "Good Reason" (as defined below), Mylan shall have no liability to Executive under this Agreement other than that the Company shall pay Executive's wages and benefits through the effective date of Executive's resignation. Executive, however, will continue to be bound by all provisions of this Agreement that survive termination of employment. For purposes of this Agreement "Good Reason" shall mean a reduction of Executive's Base Salary below the Base Salary stipulated in this Agreement, unless all other Chief officers of the Company (other than the CEO) are required to accept a similar reduction, or the assignment of duties to the Executive which are inconsistent with those of an executive officer. (iii) If Executive resigns with Good Reason and complies in all respects with his obligations hereunder, Mylan will pay Executive, within 30 days of his separation from the Company, a lump sum equal to his then-current Base Salary plus the Prior Bonus (as defined below). Mylan shall also pay the cost of continuing Executive's health insurance benefits for the 12 months following his separation from the Company; provided, however, that in the case of health insurance continuation, Mylan's obligation to provide health insurance benefits shall end at such time as Executive obtains health insurance benefits through another employer or otherwise in connection with rendering services for a third party. Executive will continue to be bound by all provisions of this Agreement that survive termination of employment. As used herein, "Prior Bonus" means the higher of: (i) the average of the annual bonuses paid to Executive in the three fiscal years prior to his separation from the Company; or (ii) the annual bonus applicable for the prior fiscal year. (b) Termination for Cause. Mylan agrees not to terminate Executive's employment during the term of this Agreement except for Cause, as defined herein, and agrees to give Executive written notice of its belief that acts or events constituting Cause exist. Executive has the right to cure within five (5) days of Mylan's giving of such notice, the acts, events or conditions which led to such notice being given. For purposes of this Agreement, "Cause" shall mean: (i) Executive's willful and gross misconduct with respect to Mylan's business or affairs; (ii) Executive's gross neglect of duties, dishonesty or deliberate disregard of any material rule or policy of Mylan, (iii) Executive's conviction of a crime involving moral turpitude; or (iv) Executive's conviction of any felony. If Mylan terminates Executive's employment for Cause, the Company shall have no liability to Executive other than to pay Executive's wages and benefits through the effective date of Executive's termination. Executive, however, will continue to be bound by all provisions of this Agreement that survive termination of employment. 5 (c) Termination Without Cause. If Mylan discharges Executive without Cause, Mylan will pay Executive, within 30 days of his separation from the Company, a lump sum equal to his then-current Base Salary plus the Prior Bonus. Mylan shall also pay the cost of continuing Executive's health insurance benefits for the 12 months following such termination without Cause; provided, however, that in the case of health insurance continuation, Mylan's obligation to provide health insurance benefits shall end at such time as Executive obtains health insurance benefits through another employer or otherwise in connection with rendering services for a third party. Executive will continue to be bound by all provisions of this Agreement that survive termination of employment. (d) Death or Incapacity. The employment of Executive shall automatically terminate upon Executive's death or upon the occurrence of a disability that renders Executive incapable of performing the essential functions of his position within the meaning of the Americans With Disabilities Act of 1990. For all purposes of this Agreement, any such termination shall be treated in the same manner as a termination without Cause, as described in Section 9(c) above, and Executive, or Executive's estate, as applicable, shall receive all consideration, compensation and benefits that would be due and payable to Executive for a termination without Cause. (e) Extension or Renewal. The Term of Employment may be extended or renewed upon mutual agreement of Executive and the Company. If the Term of Employment is not extended or renewed on terms mutually acceptable to Executive and the Company, and if this Agreement has not been sooner terminated for reasons stated in Section 9(a), (b), (c) or (d) of this Agreement, Executive shall be paid severance, within 30 days of his separation from the Company, in an amount equal to his then-current Minimum Base Salary plus the Prior Bonus, and Executive's health insurance benefits shall be continued for 12 months at the Company's cost; provided, however, that in the case of health insurance continuation, the Company's obligation to provide health insurance benefits shall end at such time as Executive, at his option, voluntarily obtains heath insurance benefits. (f) Return of Company Property. Upon the termination of Executive's employment for any reason, Executive shall immediately return to Mylan all records, memoranda, files, notes, papers, correspondence, reports, documents, books, diskettes, hard drives, electronic files, and all copies or abstracts thereof that Executive has concerning any or all of the Mylan Companies' business. Executive shall also immediately return all keys, identification cards or badges and other company property. (g) No Duty to Mitigate. There shall be no requirement on the part of Executive to seek other employment or otherwise mitigate damages in order to be entitled to the full amount of any payments and benefits to which Executive is otherwise entitled under any contract and the amount of such payments and benefits shall not be reduced by any compensation or benefits received by Executive from other employment. 10. Indemnification. In the event that Executive is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, 6 criminal, administrative or investigative proceeding), by reason of the fact that he is or was an officer, employee or agent of or is or was serving at the request of Mylan as a director or officer, employee or agent or another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, Executive shall be indemnified and held harmless by Mylan to the fullest extent authorized by law against all expenses, liabilities and losses (including attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by Executive in connection therewith. Such right shall be a contract right and shall include the right to be paid by Mylan expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that the payment of such expenses incurred by Executive in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by Executive while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of such proceeding will be made only upon delivery to Mylan of an understanding, by or on behalf of Executive, to repay all amounts to so advanced if it should be determined ultimately that Executive is not entitled to be indemnified under this section or otherwise. Promptly after receipt by Executive of notice of the commencement of any action, suit or proceeding for which Executive may be entitled to be indemnified, Executive shall notify Mylan in writing of the commencement thereof (but the failure to notify Mylan shall not relieve it from any liability which it may have under this Section 10 unless and to the extent that it has been prejudiced in a material respect by such failure or from the forfeiture of substantial rights and defenses). If any such action, suit or proceeding is brought against Executive and he notifies Mylan of the commencement thereof, Mylan will be entitled to participate therein, and, to the extent it may elect by written notice delivered to Executive promptly after receiving the aforesaid notice from Executive, to assume the defense thereof with counsel of its choosing, which may be the same counsel as counsel to Mylan. Mylan shall not be liable for any settlement of any claim or action effected without its written consent. 11. Notices. All notices hereunder to the parties hereto shall be in writing sent by certified mail, return receipt requested, postage prepaid, and by fax, addressed to the respective parties at the following addresses: If to the Company: Mylan Laboratories Inc. 781 Chestnut Ridge Road Morgantown, West Virginia 26504-4310 Attention: Chairman of the Board With a noted copy to the Chief Executive Officer If to Executive: at the most recent address on record at the Company. 7 Either party may, by written notice complying with the requirements of this section, specify another or different person or address for the purpose of notification hereunder. All notices shall be deemed to have been given and received on the day a fax is sent or, if mailed only, on the third business day following such mailing. 12. Withholding. All payments required to be made by Mylan hereunder to Executive or his dependents, beneficiaries, or estate will be subject to the withholding of such amounts relating to tax and/or other payroll deductions as may be required by law. 13. Modification and Waiver. This Agreement may not be changed or terminated orally, nor shall any change, termination or attempted waiver of any of the provisions contained in this Agreement be binding unless in writing and signed by the party against whom the same is sought to be enforced, nor shall this section itself by waived verbally. This Agreement may be amended only by a written instrument duly executed by or on behalf of the parties hereto. 14. Construction of Agreement. This Agreement and all of its provisions were subject to negotiation and shall not be construed more strictly against one party than against another party regardless of which party drafted any particular provision. 15. Successors and Assigns. This Agreement and all of its provisions, rights and obligations shall be binding upon and inure to the benefit of the parties hereto and Mylan's successors and assigns. This Agreement may be assigned by Mylan to any person, firm or corporation which shall become the owner of substantially all of the assets of Mylan or which shall succeed to the business of Mylan. No right or interest to or in any payments or benefits hereunder shall be assignable by Executive; provided, however, that this provision shall not preclude him from designating one or more beneficiaries to receive any amount that may be payable after his death and shall not preclude the legal representative of his estate from assigning any right hereunder to the person or persons entitled thereto under his will or, in the case of intestacy, to the person or persons entitled thereto under the laws of intestacy applicable to his estate. The term `beneficiaries" as used in this Agreement shall mean a beneficiary or beneficiary or beneficiaries so designated to receive any such amount, or if no beneficiary has been so designated, the legal representative of the Executive's estate. No right, benefit, or interest hereunder, shall be subject to anticipation, alienation, sale, assignment, encumbrance, charge, pledge, hypothecation, or set-off in respect of any claim, debt, or obligation, or to execution, attachment, levy, or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void, and of no effect. 16. Choice of Law and Forum. This Agreement shall be construed and enforced according to, and the rights and obligations of the parties shall be governed in all respects by, the laws of the State of Pennsylvania. Any controversy, dispute or claim arising out of or relating to this Agreement, or the breach hereof, including a claim for injunctive relief, or any claim which, in any way arises out of or relates to, Executive's employment with 8 Mylan or the termination of said employment, including but not limited to statutory claims for discrimination, shall be resolved by arbitration in accordance with the then current rules of the American Arbitration Association respecting employment disputes. The hearing of any such dispute will be held in Morgantown, West Virginia, or Pittsburgh, Pennsylvania, at Mylan's discretion and the parties shall bear their own costs, expenses and counsel fees. The decision of the arbitrator(s) will be final and binding on all parties and any award rendered shall be enforceable upon confirmation by a court of competent jurisdiction. Executive and Mylan expressly consent to the jurisdiction of any such arbitrator over them. 17. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall in no way affect the interpretation of any of the terms or conditions of this Agreement. 18. Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 19. Original Agreement. The parties agree that the Original Agreement is terminated and superseded in all respects upon the effectiveness of this Agreement. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above mentioned. MYLAN LABORATORIES INC. EXECUTIVE: /s/ Robert J. Coury /s/ Edward J. Borkowski - ----------------------------------- ------------------------------------- By: Robert J. Coury Edward J. Borkowski Its: Vice Chairman and CEO 9 EX-10.28 3 j1082801exv10w28.txt EXHIBIT 10.28 Exhibit 10.28 EXECUTIVE EMPLOYMENT AGREEMENT This Executive Employment Agreement (the "Agreement") is dated as of July 1, 2004, by and between Mylan Laboratories Inc. (the "Company") and Louis J. DeBone ("Executive"). RECITALS: WHEREAS, the Company and Executive are parties to that certain Executive Employment Agreement dated July 22, 2002, as amended as of December 15, 2003 (the "Original Agreement"); WHEREAS, the Company wishes to continue to employ Executive as President and Chief Operating Officer, and Executive desires to continue such employment; WHEREAS, Executive is desirous of assisting the Company in whatever manner the Chairman, Chief Executive Officer, and/or Board of Directors deem appropriate; and WHEREAS, the parties wish to terminate the Original Agreement and to enter into this Agreement in its stead; 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. The Company agrees to employ Executive, and Executive accepts employment by the Company, on the terms and conditions provided herein. 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 8 of this Agreement, through September 1, 2006. 3. Executive's Compensation. Executive's compensation shall include the following: (a) Minimum Base Salary. The Executive's minimum base salary (the "Minimum Base Salary") shall be $750,000, payable in accordance with the Company's normal payroll practices for its executive officers. The Minimum Base Salary may be increased from time to time at the discretion of the Board of Directors of the Company, any committee authorized by the Board or any officer having authority over executive compensation. (b) Annual Bonus. Executive shall be eligible to receive an annual discretionary bonus targeted at one hundred percent (100%) of Executive's then-current Minimum Base Salary. Executive's eligibility for a bonus and the amount of the bonus, if any, shall be determined by the Board of Directors in its sole discretion, or by any committee or officer having authority over executive compensation. (c) Non-Qualified Stock Options. The remaining one-third (1/3) of the fully vested non-qualified options granted to Executive in July 2002 pursuant to the 1997 Mylan Laboratories Inc. Incentive Stock Option Plan, as amended (the "Plan"), shall be exercisable on July 22, 2004. These options are subject to all terms of the Plan and the applicable stock option agreement. (d) Fringe Benefits and Expense Reimbursement. The Executive shall receive such benefits and perquisites of employment as have been customarily provided to the Company's President and Chief Operating Officer including but not limited to, health insurance coverage, profit-sharing, participation in the Company's 401(k) plan, short-term disability benefits, twenty-five (25) vacation days, expense reimbursement, and automobile usage 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. 4. 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 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; 2 (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. 5. Non-Competition and Non-Solicitation. Executive agrees that during the term of this Agreement and for a period ending two (2) years 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 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 his 3 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. 6. 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. 7. Injunctive Relief. The parties agree that in the event of Executive's 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, 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 4 and/or 5 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. 8. Termination of Employment. (a) Resignation. Executive may resign from employment at any time upon ninety (90) days written notice to the Company. During the ninety (90) days notice period Executive will continue to perform duties and abide by all other terms and conditions of this Agreement. Additionally, Executive will use his best efforts to effect a smooth and effective transition to whomever will replace Executive. The Company reserves the right to accelerate the effective date of Executive's resignation. Except as provided in Section 4 8(c), the Company shall have no liability to Executive under this subsection other than that the Company shall pay Executive's wages and benefits through the effective date of Executive's resignation. Executive, however, will continue to be bound by all provisions of this Agreement that survive termination of employment. (b) Termination for Cause. If the Company desires to terminate the Executive's employment for Cause, as defined herein, it shall give Executive written notice of its belief that acts or events constituting Cause exist. Executive shall have the right within ninety (90) days of the Company's giving of such notice, (i) to cure the acts, events or conditions which led to such notice being given, or (ii) to resign. If the Executive elects to resign, such resignation shall be deemed to be a Resignation With Good Reason (as defined below). "Cause" shall mean: (i) Executive's willful and substantial misconduct with respect to the Company's business or affairs; (ii) Executive's gross neglect of duties, (iii) Executive's conviction of a crime involving moral turpitude or (iv) Executive's conviction of any felony. (c) Resignation With Good Reason or Termination Without Cause. If Executive provides ninety (90) days notice and resigns with Good Reason, as defined herein, and complies in all respects with his obligations hereunder, or if the Company terminates Executive without Cause, then Executive shall be paid, within 30 days of his separation from the Company, a lump sum equal to his then-current Minimum Base Salary plus the Prior Bonus (as defined below). If the Executive resigns with Good Reason that is a Disability and complies in all respects with his obligations hereunder, the Company will pay Executive, within 30 days of his separation from the Company, a lump sum equal to his then-current Minimum Base Salary plus the Prior Bonus. In either case, Employee Benefits shall be continued for the 12 months following his separation from the Company; provided, however, that in the case of health insurance continuation, the Company's obligation to provide health insurance benefits shall end at such time as Executive, at his option, voluntarily obtains health insurance benefits through another employer or otherwise in connection with rendering services for a third party. Executive shall also be entitled to exercise immediately one hundred percent (100%) of all stock options described in this Agreement in the event of a Resignation With Good Reason or Termination Without Cause. Executive will continue to be bound by all provisions of this Agreement that survive termination of employment. As used herein, "Prior Bonus" means the higher of: (i) the average of the annual bonuses paid to Executive in the three fiscal years prior to his separation from the Company; or (ii) the annual bonus applicable for the prior fiscal year. "Good Reason" shall mean a reduction of Executive's Minimum Base Salary below the Minimum Base Salary stipulated in this Agreement, unless all other Chief officers of the Company (other than the CEO) are required to accept a similar reduction, a relocation of Executive's principal place of work to a location more than thirty (30) miles from Morgantown, WV, the Executive's Disability (as defined herein) or a resignation pursuant to Section 8(b). 5 "Disability" means the inability to perform normal functions of the positions due to mental, physical or emotional disability which is expected to last more than one year. (d) Extension or Renewal. The Term of Employment may be extended or renewed upon mutual agreement of Executive and the Company. If the Term of Employment is not extended or renewed on terms mutually acceptable to Executive and the Company, and if this Agreement has not been already terminated for reasons stated in Section 8 (a), (b), or (c) of this Agreement, Executive shall be paid, within 30 days of his separation from the Company, a lump sum equal to his then-current Minimum Base Salary plus the Prior Bonus. In addition, Executive's health insurance benefits shall be continued for twelve (12) months at the Company's cost; provided, however, that in the case of health insurance continuation, the Company's obligation to provide health insurance benefits shall end at such time as Executive, at his option, voluntarily obtains health insurance benefits through another employer or otherwise in connection with rendering services for a third party. Executive, however, will continue to be bound by all provisions of this Agreement that survive termination of employment. (e) Return of Company Property. Upon the termination of Executive's employment for any reason, Executive shall immediately return to the Company all records, memoranda, files, notes, papers, correspondence, reports, documents, books, diskettes, hard drives, electronic files, and all copies or abstracts thereof that Executive has concerning the Company's business. Executive shall also immediately return all keys, identification cards or badges and other Company property. (f) No Duty to Mitigate. There shall be no requirement on the part of the Executive to seek other employment or otherwise mitigate damages in order to be entitled to the full amount of any payments and benefits to which Executive is otherwise entitled under the contract, and the amount of such payments and benefits shall not be reduced by any compensation or benefits received by Executive from other employment. (g) Death. The employment of Executive shall automatically terminate upon Executive's death. For all purposes of this Agreement, any such termination shall be treated in the same manner as a termination without Cause, as described in Section 8(c) of this Agreement, and Executive's estate shall receive all consideration, compensation and benefits that would be due and payable to Executive for a termination without Cause. 9. Indemnification. The Company shall maintain D&O liability coverage pursuant to which Executive shall be a covered insured. Executive shall receive indemnification in accordance with the Company's Bylaws in effect as of the date of this Agreement. Such indemnification shall be contractual in nature and shall remain in effect notwithstanding any future change to the Company's Bylaws. To the extent not otherwise limited by the Company's Bylaws in effect as of the date of this Agreement, in the event that Executive is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, (including those brought 6 by or in the right of the Company) whether civil, criminal, administrative or investigative ("proceeding"), by reason of the fact that he is or was an officer, employee or agent of or is or was serving the Company or any subsidiary of the Company, or is or was serving at the request of the Company or another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, Executive shall be indemnified and held harmless by the Company to the fullest extent authorized by law against all expenses, liabilities and losses (including attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by Executive in connection therewith. Such right shall be a contract right and shall include the right to be paid by the Company expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that the payment of such expenses incurred by Executive in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by Executive while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of such proceeding will be made only upon delivery to the Company of an undertaking, by or on behalf of Executive, to repay all amounts to Company so advanced if it should be determined ultimately that Executive is not entitled to be indemnified under this section or otherwise. Promptly after receipt by Executive of notice of the commencement of any action, suit or proceeding for which Executive may be entitled to be indemnified, Executive shall notify the Company in writing of the commencement thereof (but the failure to notify the Company shall not relieve it from any liability which it may have under this Section 9 unless and to the extent that it has been prejudiced in a material respect by such failure or from the forfeiture of substantial rights and defenses). If any such action, suit or proceeding is brought against Executive and he notifies the Company of the commencement thereof, the Company will be entitled to participate therein, and, to the extent it may elect by written notice delivered to Executive promptly after receiving the aforesaid notice from Executive, to assume the defense thereof with counsel reasonably satisfactory to Executive, which may be the same counsel as counsel to the Company. Notwithstanding the foregoing, Executive shall have the right to employ his own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of Executive unless (i) the employment of such counsel shall have been authorized in writing by the Company, (ii) the Company shall not have employed counsel reasonably satisfactory to Executive to take charge of the defense of such action within a reasonable time after notice of commencement of the action or (iii) Executive shall have reasonably concluded, after consultation with counsel to Executive, that a conflict of interest exists which makes representation by counsel chosen by the Company not advisable (in which case the Company shall not have the right to direct the defense of such action on behalf of Executive), in any of which events such fees and expenses of one additional counsel shall be borne by the Company. Anything in this Section 9 to the contrary notwithstanding, the Company shall not be liable for any settlement of any claim or action effected without its written consent. 7 10. Efforts. During the Term of Employment, Executive shall: (i) devote his full working time and attention to the business and affairs of the Company and to the performance of his duties hereunder; (ii) serve the Company faithfully and to the best of his ability, and use his best efforts to promote the interests of the Company; and (iii) follow and implement the policies and directions of the Chief Executive Officer and Board of Directors. 11. Other Agreements. The rights and obligations contained in this Agreement are in addition to and not in place of any rights or obligations contained in any other agreements between the Executive and the Company. 12. Notices. All notices hereunder to the parties hereto shall be in writing sent by certified mail, return receipt requested, postage prepaid, and by fax, addressed to the respective parties at the following addresses: If to the Company: Mylan Laboratories Inc. 781 Chestnut Ridge Road Morgantown, West Virginia 26504-4310 Attention: Chairman of the Board With a noted copy to the Chief Executive Officer If to Executive: at the most recent address on record at the Company. Either party may, by written notice complying with the requirements of this section, specify another or different person or address for the purpose of notification hereunder. All notices shall be deemed to have been given and received on the day a fax is sent or, if mailed only, on the third business day following such mailing. 13. Withholding. All payments required to be made by the Company hereunder to Executive or hi dependents, beneficiaries, or estate will be subject to the withholding of such amounts relating to tax and/or other payroll deductions as may be required by law. 14. Modification and Waiver. This Agreement may not be changed or terminated rally, nor shall any change, termination or attempted waiver of any of the provisions contained in this Agreement be binding unless in writing and signed by the party against whom the same is sought to be enforced, nor shall this section itself by waived verbally. This Agreement may be amended only by a written instrument duly executed by or on behalf of the parties hereto. 15. Construction of Agreement. This Agreement and all of its provisions were subject to negotiation and shall not be construed more strictly against one party than against another party regardless of which party drafted any particular provision. 16. Successors and Assigns. This Agreement and all of its provisions, rights and obligations shall be binding upon and inure to the benefit of the parties hereto and the 8 Company's successors and assigns. This Agreement may be assigned by the Company to any person, firm or corporation which shall become the owner of substantially all of the assets of the Company or which shall succeed to the business of the Company; provided, however, that in the event of any such assignment the Company shall obtain an instrument in writing from the assignee in which such assignee assumes the obligations of the Company hereunder and shall deliver an executed copy thereof to Executive. No right or interest to or in any payments or benefits hereunder shall be assignable by Executive; provided, however, that this provision shall not preclude him from designating one or more beneficiaries to receive any amount that may be payable after his death and shall not preclude the legal representative of his estate from assigning any right hereunder to the person or persons entitled thereto under his will or, in the case of intestacy, to the person or persons entitled thereto under the laws of intestacy applicable to his estate. The term "beneficiaries" as used in this Agreement shall mean a beneficiary or beneficiary or beneficiaries so designated to receive any such amount, or if no beneficiary has been so designated, the legal representative of the Executive's estate. No right, benefit, or interest hereunder, shall be subject to anticipation, alienation, sale, assignment, encumbrance, charge, pledge, hypothecation, or set-off in respect of any claim, debt, or obligation, or to execution, attachment, levy, or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void, and of no effect. 17. Choice of Law and Forum. This Agreement shall be construed and enforced according to, and the rights and obligations of the parties shall be governed in all respects by, the laws of the Commonwealth of Pennsylvania. Any controversy, dispute or claim arising out of or relating to this Agreement, or the breach hereof, including a claim for injunctive relief, or any claim which, in any way arises out of or relates to, Executive's employment with the Company or the termination of said employment, including but not limited to statutory claims for discrimination, shall be resolved by arbitration in accordance with the then current rules of the American Arbitration Association respecting employment disputes except that the parties shall be entitled to engage in all forms of discovery permitted under the Pennsylvania Rules of Civil Procedure (as such rules may be in effect from time to time). The hearing of any such dispute will be held in Pittsburgh, Pennsylvania, and the losing party shall bear the costs, expenses and counsel fees of such proceeding. Executive and Company agree for themselves, their, employees, successors and assigns and their accountants, attorneys and experts that any arbitration hereunder will be held in complete confidence and, without the other party's prior written consent, will not be disclosed, in whole or in part, to any other person or entity except as may be required by law. The decision of the arbitrator(s) will be final and binding on all parties. Executive and the Company expressly consent to the jurisdiction of any such arbitrator over them. 18. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall in no way affect the interpretation of any of the terms or conditions of this Agreement. 9 19. Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 20. Original Agreement. The parties agree that the Original Agreement is terminated and superseded in all respects upon the effectiveness of this Agreement. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above mentioned. MYLAN LABORATORIES INC. EXECUTIVE: /s/ Robert J. Coury /s/ Louis J. DeBone - --------------------------------------- ------------------------------- By: Robert J. Coury Louis J. DeBone Its: Vice Chairman and CEO 10 EX-10.29 4 j1082801exv10w29.txt EXHIBIT 10.29 Exhibit 10.29 EXECUTIVE EMPLOYMENT AGREEMENT This Executive Employment Agreement (the "Agreement") is dated as of July 1, 2004, by and between Mylan Laboratories Inc. (the "Company") and John P. O'Donnell ("Executive"). RECITALS: WHEREAS, the Company and Executive are parties to that certain Executive Employment Agreement dated July 22, 2002, as amended as of December 15, 2003 (the "Original Agreement"); WHEREAS, the Company wishes to continue to employ Executive as Chief Scientific Officer, and Executive desires to continue such employment; and WHEREAS, the parties wish to terminate the Original Agreement and to enter into this Agreement in its stead; 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. The Company agrees to employ Executive, and Executive accepts employment by the Company, on the terms and conditions provided herein. 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 8 of this Agreement, through March 31, 2007. 3. Executive's Compensation. Executive's compensation shall include the following: (a) Minimum Base Salary. The Executive's minimum base salary (the "Minimum Base Salary") shall be a monthly rate of $400,000, payable in accordance with the Company's normal payroll practices for its executive officers. The Minimum Base Salary may be increased from time to time at the discretion of the Board of Directors of the Company, any committee authorized by the Board or any officer having authority over executive compensation. (b) Annual Bonus. Executive shall be eligible to receive an annual discretionary bonus targeted at one hundred percent (100%) of Executive's then-current Minimum Base Salary. Executive's eligibility for a bonus and the amount of the bonus, if any, shall be determined by the Board of Directors in its sole discretion, or by any committee or officer having authority over executive compensation. (c) Non-Qualified Stock Options. The remaining one-third (1/3) of the fully vested non-qualified options granted to Executive in July 2002 pursuant to the 1997 Mylan Laboratories Inc. Incentive Stock Option Plan, as amended (the "Plan"), shall be exercisable on July 22, 2004. These options are subject to all terms of the Plan and the applicable stock option agreement. (d) Fringe Benefits and Expense Reimbursement. The Executive shall receive such benefits and perquisites of employment as have been customarily provided to the Company's Senior Officers including but not limited to, health insurance coverage, profit-sharing, participation in the Company's 401(k) plan, short-term disability benefits, twenty-five (25) vacation days, expense reimbursement, and automobile usage 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. 4. 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 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 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 2 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. 5. Non-Competition and Non-Solicitation. Executive agrees that during the term of this Agreement and for a period ending two (2) years 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 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 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 3 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. 6. 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. 7. Injunctive Relief. The parties agree that in the event of Executive's 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, 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 4 and/or 5 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. 8. Termination of Employment. (a) Resignation. Executive may resign from employment at any time upon ninety (90) days written notice to the Company. During the ninety (90) days notice period Executive will continue to perform duties and abide by all other terms and conditions of this Agreement. Additionally, Executive will use his best efforts to effect a smooth and effective transition to whomever will replace Executive. The Company reserves the right to accelerate the effective date of Executive's resignation. Except as provided in Section 8(c), the Company shall have no liability to Executive under this subsection other than that the Company shall pay Executive's wages and benefits through the effective date of 4 Executive's resignation. Executive, however, will continue to be bound by all provisions of this Agreement that survive termination of employment. (b) Termination For Cause. The Company may terminate Executive's employment for Cause, as defined herein, at any time. Notice of a Termination For Cause shall be in writing. In the event of a Termination For Cause, the Company shall have no liability to Executive other than that the Company shall pay Executive's wages and benefits through the effective date of Executive's termination. Executive, however, will continue to be bound by all provisions of this Agreement that survive termination of employment. "Cause" shall mean: (i) Executive's willful and substantial misconduct with respect to the Company's business or affairs; (ii) Executive's gross neglect of duties, (iii) Executive's conviction of a crime involving moral turpitude; (iv) Executive's conviction of any felony; or (v) Executive's material breach of any provision of this Agreement. (c) Resignation With Good Reason or Termination Without Cause. If Executive provides ninety (90) days notice and resigns with Good Reason, as defined herein, and complies in all respects with his obligations hereunder, or if the Company terminates Executive without Cause, then Executive shall be paid, within 30 days of his separation from the Company, a lump sum equal to his then-current Minimum Base Salary plus the Prior Bonus (as defined below). If the Executive resigns with Good Reason that is a Disability and complies in all respects with his obligations hereunder, the Company will pay Executive, within 30 days of his separation from the Company, a lump sum equal to his then-current Minimum Base Salary plus the Prior Bonus. In either case, Employee Benefits shall be continued for the 12 months following his separation from the Company; provided, however, that in the case of health insurance continuation, the Company's obligation to provide health insurance benefits shall end at such time as Executive, at his option, voluntarily obtains health insurance benefits through another employer or otherwise in connection with rendering services for a third party. Executive shall also be entitled to exercise immediately one hundred percent (100%) of all stock options described in this Agreement in the event of a Resignation With Good Reason or Termination Without Cause. Executive will continue to be bound by all provisions of this Agreement that survive termination of employment. As used herein, "Prior Bonus" means the higher of: (i) the average of the annual bonuses paid to Executive in the three fiscal years prior to his separation from the Company; or (ii) the annual bonus applicable for the prior fiscal year. "Good Reason" shall mean a reduction of Executive's Minimum Base Salary below the Minimum Base Salary stipulated in this Agreement, unless all other Chief officers of the Company (other than the CEO) are required to accept a similar reduction, a relocation of Executive's principal place of work to a location more than thirty (30) miles from Morgantown, WV, or the Executive's Disability (as defined herein). "Disability" means the inability to perform normal functions of the positions due to mental, physical or emotional disability which is expected to last more than one year. 5 (d) Extension or Renewal. The Term of Employment may be extended or renewed upon mutual agreement of Executive and the Company. If the Term of Employment is not extended or renewed on terms mutually acceptable to Executive and the Company, and if this Agreement has not been already terminated for reasons stated in Section 8 (a), (b), or (c) of this Agreement, Executive shall be paid, within 30 days of his separation from the Company, a lump sum equal to his then-current Minimum Base Salary plus the Prior Bonus. In addition, Executive's health insurance benefits shall be continued for twelve (12) months at the Company's cost; provided, however, that in the case of health insurance continuation, the Company's obligation to provide health insurance benefits shall end at such time as Executive, at his option, voluntarily obtains health insurance benefits through another employer or otherwise in connection with rendering services for a third party. Executive, however, will continue to be bound by all provisions of this Agreement that survive termination of employment. (e) Return of Company Property. Upon the termination of Executive's employment for any reason, Executive shall immediately return to the Company all records, memoranda, files, notes, papers, correspondence, reports, documents, books, diskettes, hard drives, electronic files, and all copies or abstracts thereof that Executive has concerning the Company's business. Executive shall also immediately return all keys, identification cards or badges and other Company property. (f) No Duty to Mitigate. There shall be no requirement on the part of the Executive to seek other employment or otherwise mitigate damages in order to be entitled to the full amount of any payments and benefits to which Executive is otherwise entitled under the contract, and the amount of such payments and benefits shall not be reduced by any compensation or benefits received by Executive from other employment. (g) Death. The employment of Executive shall automatically terminate upon Executive's death. For all purposes of this Agreement, any such termination shall be treated in the same manner as a termination without Cause, as described in Section 8(c) of this Agreement, and Executive's estate shall receive all consideration, compensation and benefits that would be due and payable to Executive for a termination without Cause. 9. Indemnification. The Company shall maintain D&O liability coverage pursuant to which Executive shall be a covered insured. Executive shall receive indemnification in accordance with the Company's Bylaws in effect as of the date of this Agreement. Such indemnification shall be contractual in nature and shall remain in effect notwithstanding any future change to the Company's Bylaws. To the extent not otherwise limited by the Company's Bylaws in effect as of the date of this Agreement, in the event that Executive is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding (including those brought by or in the right of the Company) whether civil, criminal, administrative or investigative ("proceeding"), by reason of the fact that he is or was an officer, employee or agent of or is or was serving the Company or any subsidiary of the Company, or is or was serving at 6 the request of the Company or another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, Executive shall be indemnified and held harmless by the Company to the fullest extent authorized by law against all expenses, liabilities and losses (including attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by Executive in connection therewith. Such right shall be a contract right and shall include the right to be paid by the Company expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that the payment of such expenses incurred by Executive in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by Executive while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of such proceeding will be made only upon delivery to the Company of an undertaking, by or on behalf of Executive, to repay all amounts to Company so advanced if it should be determined ultimately that Executive is not entitled to be indemnified under this section or otherwise. Promptly after receipt by Executive of notice of the commencement of any action, suit or proceeding for which Executive may be entitled to be indemnified, Executive shall notify the Company in writing of the commencement thereof (but the failure to notify the Company shall not relieve it from any liability which it may have under this Section 9 unless and to the extent that it has been prejudiced in a material respect by such failure or from the forfeiture of substantial rights and defenses). If any such action, suit or proceeding is brought against Executive and he notifies the Company of the commencement thereof, the Company will be entitled to participate therein, and, to the extent it may elect by written notice delivered to Executive promptly after receiving the aforesaid notice from Executive, to assume the defense thereof with counsel reasonably satisfactory to Executive, which may be the same counsel as counsel to the Company. Notwithstanding the foregoing, Executive shall have the right to employ his own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of Executive unless (i) the employment of such counsel shall have been authorized in writing by the Company, (ii) the Company shall not have employed counsel reasonably satisfactory to Executive to take charge of the defense of such action within a reasonable time after notice of commencement of the action or (iii) Executive shall have reasonably concluded, after consultation with counsel to Executive, that a conflict of interest exists which makes representation by counsel chosen by the Company not advisable (in which case the Company shall not have the right to direct the defense of such action on behalf of Executive), in any of which events such fees and expenses of one additional counsel shall be borne by the Company. Anything in this Section 9 to the contrary notwithstanding, the Company shall not be liable for any settlement of any claim or action effected without its written consent. 10. Efforts. During the Term of Employment, Executive shall: (i) devote his full working time and attention to the business and affairs of the Company and to the performance of his duties hereunder; (ii) serve the Company faithfully and to the best of 7 his ability, and use his best efforts to promote the interests of the Company; and (iii) follow and implement the policies and directions of the Chief Executive Officer and Board of Directors. 11. Other Agreements. The rights and obligations contained in this Agreement are in addition to and not in place of any rights or obligations contained in any other agreements between the Executive and the Company. 12. Notices. All notices hereunder to the parties hereto shall be in writing sent by certified mail, return receipt requested, postage prepaid, and by fax, addressed to the respective parties at the following addresses: If to the Company: Mylan Laboratories Inc. 781 Chestnut Ridge Road Morgantown, West Virginia 26504-4310 Attention: Chairman of the Board With a noted copy to the Chief Executive Officer If to Executive: at the most recent address on record at the Company. Either party may, by written notice complying with the requirements of this section, specify another or different person or address for the purpose of notification hereunder. All notices shall be deemed to have been given and received on the day a fax is sent or, if mailed only, on the third business day following such mailing. 13. Withholding. All payments required to be made by the Company hereunder to Executive or his dependents, beneficiaries, or estate will be subject to the withholding of such amounts relating to tax and/or other payroll deductions as may be required by law. 14. Modification and Waiver. This Agreement may not be changed or terminated orally, nor shall any change, termination or attempted waiver of any of the provisions contained in this Agreement be binding unless in writing and signed by the party against whom the same is sought to be enforced, nor shall this section itself by waived verbally. This Agreement may be amended only by a written instrument duly executed by or on behalf of the parties hereto. 15. Construction of Agreement. This Agreement and all of its provisions were subject to negotiation and shall not be construed more strictly against one party than against another party regardless of which party drafted any particular provision. 16. Successors and Assigns. This Agreement and all of its provisions, rights and obligations shall be binding upon and inure to the benefit of the parties hereto and the Company's successors and assigns. This Agreement may be assigned by the Company to any person, firm or corporation which shall become the owner of substantially all of the assets of the Company or which shall succeed to the business of the Company; provided, 8 however, that in the event of any such assignment the Company shall obtain an instrument in writing from the assignee in which such assignee assumes the obligations of the Company hereunder and shall deliver an executed copy thereof to Executive. No right or interest to or in any payments or benefits hereunder shall be assignable by Executive; provided, however, that this provision shall not preclude him from designating one or more beneficiaries to receive any amount that may be payable after his death and shall not preclude the legal representative of his estate from assigning any right hereunder to the person or persons entitled thereto under his will or, in the case of intestacy, to the person or persons entitled thereto under the laws of intestacy applicable to his estate. The term "beneficiaries" as used in this Agreement shall mean a beneficiary or beneficiary or beneficiaries so designated to receive any such amount, or if no beneficiary has been so designated, the legal representative of the Executive's estate. No right, benefit, or interest hereunder, shall be subject to anticipation, alienation, sale, assignment, encumbrance, charge, pledge, hypothecation, or set-off in respect of any claim, debt, or obligation, or to execution, attachment, levy, or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void, and of no effect. 17. Choice of Law and Forum. This Agreement shall be construed and enforced according to, and the rights and obligations of the parties shall be governed in all respects by, the laws of the Commonwealth of Pennsylvania. Any controversy, dispute or claim arising out of or relating to this Agreement, or the breach hereof, including a claim for injunctive relief, or any claim which, in any way arises out of or relates to, Executive's employment with the Company or the termination of said employment, including but not limited to statutory claims for discrimination, shall be resolved by arbitration in accordance with the then current rules of the American Arbitration Association respecting employment disputes except that the parties shall be entitled to engage in all forms of discovery permitted under the Pennsylvania Rules of Civil Procedure (as such rules may be in effect from time to time). The hearing of any such dispute will be held in Pittsburgh, Pennsylvania, and the losing party shall bear the costs, expenses and counsel fees of such proceeding. Executive and Company agree for themselves, their, employees, successors and assigns and their accountants, attorneys and experts that any arbitration hereunder will be held in complete confidence and, without the other party's prior written consent, will not be disclosed, in whole or in part, to any other person or entity except as may be required by law. The decision of the arbitrator(s) will be final and binding on all parties. Executive and the Company expressly consent to the jurisdiction of any such arbitrator over them. 18. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall in no way affect the interpretation of any of the terms or conditions of this Agreement. 19. Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 9 20. Original Agreement. The parties agree that the Original Agreement is terminated and superseded in all respects upon the effectiveness of this Agreement. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above mentioned. MYLAN LABORATORIES INC. EXECUTIVE: /s/ Robert J. Coury /s/ John P. O'Donnell - ----------------------------------- --------------------------- By: Robert J. Coury John P. O'Donnell Its: Vice Chairman and CEO 10 EX-10.30 5 j1082801exv10w30.txt EXHIBIT 10.30 Exhibit 10.30 EXECUTIVE EMPLOYMENT AGREEMENT This Executive Employment Agreement (the "Agreement") is dated as of July 1, 2004, by and between Mylan Laboratories Inc. (the "Company") and Stuart A. Williams ("Executive"). RECITALS: WHEREAS, the Company and Executive are parties to that certain Executive Employment Agreement dated as of March 1, 2002, as amended as of December 15, 2003 (the "Original Agreement"); WHEREAS, the Company wishes to continue to employ Executive as Chief Legal Officer, and Executive desires to continue such employment; and WHEREAS, the parties wish to terminate the Original Agreement and to enter into this Agreement in its stead; 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. The Company agrees to employ Executive, and Executive accepts employment by the Company, during the term of this Agreement for the consideration and on the terms and conditions provided herein. 2. Effective Date: Term of Employment. This Agreement shall commence and be effective for all purposes as of the date hereof and shall remain in effect, unless earlier terminated, or extended or renewed, as provided in Section 8 of this Agreement, through June 1, 2006. 3. Executive's Compensation. Executive's compensation shall include the following: (a) Base Salary. During the term of this Agreement, as Executive's base compensation for all services to be performed, the Company shall pay Executive an annual salary of $450,000.00 (the "Base Salary"), payable in accordance with the Company's normal payroll practices for its executive officers. This Base Salary may be increased from time to time at the discretion of the Board of Directors of the Company, any committee that may be authorized by the Board or any officer having authority over executive compensation. (b) Bonus. During the term of this Agreement, Executive shall be eligible to receive an annual discretionary bonus targeted at one hundred percent (100%) of Executive's Base Salary. Executive's eligibility for a bonus and the amount of the bonus, if any, shall be determined by the Board of Directors in its sole discretion, or by any committee or officer having authority over executive compensation. (c) Fringe Benefits and Other Agreements. During the term of Employment, Executive shall receive such benefits of employment as are granted senior executive employees at the Chief Legal Officer level, including but not limited to, health insurance coverage, profit-sharing, participation in the Company's 401(k) plan, short-term disability benefits, 25 vacation days, expense reimbursement, and automobile usage in accordance with the plan documents or policies that govern such benefits. The Company will also pay for or reimburse Executive for professional fees and/or dues including fees and travel expenses associated with continuing legal education requirements. Executive shall also be considered eligible under such other agreements as are available to senior executives at the Chief Legal Officer level such as the change in control agreement. 4. 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 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 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 2 (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. 5. Non-Competition and Non-Solicitation. Executive agrees that during the term of this Agreement and for a period ending two (2) years 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 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 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. 3 (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. 6. 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. 7. Injunctive Relief. The parties agree that in the event of Executive's 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, 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 4 and/or 5 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. 8. Termination of Employment. (a) Resignation Without Good Reason. Executive may resign from employment at any time upon 90 days written notice to the Company. During the 90 days notice period Executive will continue to perform duties and abide by all other terms and conditions of this Agreement. Additionally, Executive will use his best efforts to effect a smooth and effective transition to whomever will replace Executive. The Company reserves the right to accelerate the effective date of Executive's resignation. If Executive resigns without "Good Reason" (as defined below), the Company shall have no liability to Executive under this Agreement other than that the Company shall pay Executive's wages and benefits through the effective date of Executive's resignation. Executive, however, will continue to be bound by all provisions of this Agreement that survive termination of employment. For purposes of this Agreement, "Good Reason" shall mean a reduction of Executive's Base Salary below the Base Salary stipulated in this Agreement, unless all other Chief officers of the Company (other than the CEO) are required to accept a similar reduction, or a relocation of Executive's principal place of work to a location more than thirty miles from Morgantown, West Virginia (with the exception of a relocation within 30 miles of Pittsburgh, PA which would be permissible unless and until Executive moves to Morgantown, West Virginia). If Executive resigns 4 with Good Reason and complies in all respects with his obligations hereunder, the Company will pay Executive, within 30 days of his separation from the Company, a lump sum equal to two times: (i) his then-current Base Salary plus (ii) the Prior Bonus (as defined below). The Company shall also pay the cost of continuing Executive's health insurance benefits for the 24 months following his separation from the Company; provided, however, that in the case of health insurance continuation, the Company's obligation to provide health insurance benefits shall end at such time as Executive, at his option, voluntarily obtains health insurance benefits through another employer or otherwise in connection with rendering services for a third party. Executive shall also be entitled one hundred percent (100%) vesting of all stock options described in this Agreement in the event of a Resignation with Good Reason. As used herein, "Prior Bonus" means the higher of: (i) the average of the annual bonuses paid to Executive in the three fiscal years prior to his separation from the Company; or (ii) the annual bonus applicable for the prior fiscal year. (b) Termination for Cause. The Company agrees not to terminate Executive's employment during the term of this Agreement except for Cause, as defined herein, and agrees to give Executive written notice of its belief that acts or events constituting Cause exist. Executive has the right to cure within fourteen (14) days of the Company's giving of such notice, the acts, events or conditions which led to such notice being given. For purposes of this Agreement, "Cause" shall mean: (i) Executive's willful and substantial misconduct with respect to the Company's business or affairs; (ii) Executive's gross neglect of duties, (iii) Executive's conviction of a crime involving moral turpitude; or (iv) Executive's conviction of any felony. If the Company terminates Executive's employment for Cause, the Company shall have no liability to Executive other than to pay Executive's wages and benefits through the effective date of Executive's termination. Executive, however, will continue to be bound by all provisions of this Agreement that survive termination of employment. (c) Termination Without Cause. If the Company discharges Executive without Cause, the Company will pay Executive, within 30 days of his separation from the Company, a lump sum equal to two times: (i) his then-current Base Salary plus (ii) the Prior Bonus. The Company shall also pay the cost of continuing Executive's health insurance benefits for the 24 months following his separation from the Company; provided, however, that in the case of health insurance continuation, the Company's obligation to provide health insurance benefits shall end at such time as Executive, at his option, voluntarily obtains health insurance benefits through another employer or otherwise in connection with rendering services for a third party. Executive shall also be entitled to one hundred percent (100%) vesting of all stock options described in this Agreement in the event of a Termination without Cause. Executive, however, will continue to be bound by all provisions of this Agreement that survive termination of employment. (d) Death or Incapacity. The employment of Executive shall automatically terminate upon Executive's death or upon the occurrence of a disability that renders Executive incapable of performing the essential functions of his position within the meaning of the Americans With Disabilities Act of 1990. For all purposes of this 5 Agreement, any such termination shall be treated in the same manner as a termination without Cause, as described in Section 9(c) above, and Executive, or Executive's estate, as applicable, shall receive all consideration, compensation and benefits that would be due and payable to Executive for a termination without Cause. (e) Extension or Renewal. The Term of Employment may be extended or renewed upon mutual agreement of Executive and the Company. If the Term of Employment is not extended or renewed on terms mutually acceptable to Executive and the Company, and if this Agreement has not been already terminated for reasons stated in Section 9 (a), (b), (c) or (d) of this Agreement, Executive shall be paid severance, within 30 days of his separation from the Company, in an amount equal to two times: (i) Executive's then-current Base Salary, plus (ii) the Prior Bonus. In addition, Executive's health insurance benefits shall be continued at the Company's cost for twenty four (24) months; provided, however, that in the case of health insurance continuation, the Company's obligation to provide health insurance benefits shall end at such time as Executive, at his option, voluntarily obtains health insurance benefits through another employer or otherwise in connection with rendering services for a third party. Executive, however, will continue to be bound by all provisions of this Agreement that survive termination of employment. (f) No Duty to Mitigate. There shall be no requirement on the part of Executive to seek other employment or otherwise mitigate damages in order to be entitled to the full amount of any payments and benefits to which Executive is otherwise entitled under any contract and the amount of such payments and benefits shall not be reduced by any compensation or benefits received by Executive from other employment." (g) Return of Company Property. Upon the termination of Executive's employment for any reason, Executive shall immediately return to the Company all records, memoranda, files, notes, papers, correspondence, reports, documents, books, diskettes, hard drives, electronic files, and all copies or abstracts thereof that Executive has concerning the Company's business. Executive shall also immediately return all keys, identification cards or badges and other Company property. 9. Indemnification. In the event that Executive is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative ("proceeding"), by reason of the fact that he is or was an officer, employee or agent of or is or was serving at the request of the Company as a director or officer, employee or agent or another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, Executive shall be indemnified and held harmless by the Company to the fullest extent authorized by law against all expenses, liabilities and losses (including attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by Executive in connection therewith. Such right shall be a contract right and shall include the right to be paid by the Company expenses incurred in defending any such proceeding in advance of 6 its final disposition; provided, however, that the payment of such expenses incurred by Executive in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by Executive while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of such proceeding will be made only upon delivery to the Company of an undertaking, by or on behalf of Executive, to repay all amounts to so advanced if it should be determined ultimately that Executive is not entitled to be indemnified under this section or otherwise. Promptly after receipt by Executive of notice of the commencement of any action, suit or proceeding for which Executive may be entitled to be indemnified, Executive shall notify the Company in writing of the commencement thereof (but the failure to notify the Company shall not relieve it from any liability which it may have under this Section 10 unless and to the extent that it has been prejudiced in a material respect by such failure or from the forfeiture of substantial rights and defenses). If any such action, suit or proceeding is brought against Executive and he notifies the Company of the commencement thereof, the Company will be entitled to participate therein, and, to the extent it may elect by written notice delivered to Executive promptly after receiving the aforesaid notice from Executive, to assume the defense thereof with counsel reasonably satisfactory to Executive, which may be the same counsel as counsel to the Company. Notwithstanding the foregoing, Executive shall have the right to employ his own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of Executive unless (i) the employment of such counsel shall have been authorized in writing by the Company, (ii) the Company shall not have employed counsel reasonably satisfactory to Executive to take charge of the defense of such action within a reasonable time after notice of commencement of the action or (iii) Executive shall have reasonably concluded, after consultation with counsel to Executive, that a conflict of interest exists which makes representation by counsel chosen by the Company not advisable (in which case the Company shall not have the right to direct the defense of such action on behalf of Executive), in any of which events such fees and expenses of one additional counsel shall be borne by the Company. Anything in this Section 11 to the contrary notwithstanding, the Company shall not be liable for any settlement of any claim or action effected without its written consent. 10. Efforts and Transition. During the Term of Employment, Executive shall: serve the Company to the best of his ability, and use his best efforts to promote the interests of the Company. The Company recognizes that Executive is engaged in certain legal representations that will need to be transitional over time. Said legal representations may not affect performance of Executive's obligations under this Agreement. 11. Other Agreements. The rights and obligations contained in this Agreement are in addition to and not in place of any rights or obligations contained in any other agreements between the Executive and the Company. 12. Notices. All notices hereunder to the parties hereto shall be in writing sent by certified mail, return receipt requested, postage prepaid, and by fax, addressed to the respective parties at the following addresses: 7 If to the Company: Mylan Laboratories Inc. 781 Chestnut Ridge Road Morgantown, West Virginia 26504-4310 Attention: Chairman of the Board With a noted copy to the Chief Executive Officer If to Executive: at the most recent address on record at the Company. Either party may, by written notice complying with the requirements of this section, specify another or different person or address for the purpose of notification hereunder. All notices shall be deemed to have been given and received on the day a fax is sent or, if mailed only, on the third business day following such mailing. 13. Withholding. All payments required to be made by the Company hereunder to Executive or his dependents, beneficiaries, or estate will be payroll deductions as may be required by law. 14. Modification and Waiver. This Agreement may not be changed or terminated orally, nor shall any change, termination or attempted waiver of any of the provisions contained in this Agreement be binding unless in writing and signed by the party against whom the same is sought to be enforced, nor shall this section itself by waived verbally. This Agreement may be amended only by a written instrument duly executed by or on behalf of the parties hereto. 15. Construction of Agreement. This Agreement and all of its provisions were subject to negotiation and shall not be construed more strictly against one party than against another party regardless of which party drafted any particular provision. 16. Successors and Assigns. This Agreement and all of its provisions, rights and obligations shall be binding upon and inure to the benefit of the parties hereto and the Company's successors and assigns. This Agreement may be assigned by the Company to any person, firm or corporation which shall become the owner of substantially all of the assets of the Company or which shall succeed to the business of the Company; provided, however, that in the event of any such assignment the Company shall obtain an instrument in writing from the assignee in which such assignee assumes the obligations Executive. No right or interest to or in any payments or benefits hereunder shall be assignable by Executive; provided, however, that this provision shall not preclude him from designating one or more beneficiaries to receive any amount that may be payable after his death and shall not preclude the legal representative of his estate from assigning any right hereunder to the person or persons entitled thereto under his will or, in the case of intestacy, to the person or persons entitled thereto under the laws of intestacy applicable to his estate. The term "beneficiaries" as used in this Agreement shall mean a beneficiary or beneficiary or beneficiaries so designated to receive any such amount, or if no Executive's estate. No right, benefit, or interest hereunder, shall be subject to anticipation, alienation, sale, assignment, encumbrance, charge, pledge, hypothecation, or set-off in respect of any claim, debt, or obligation, or to execution, attachment, levy, or similar process, or assignment by operation of law. Any attempt, 8 voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void, and of no effect. 17. Choice of Law and Forum. This Agreement shall be construed and enforced according to, and the rights and obligations of the parties shall be governed in all respects by, the laws of the Commonwealth of Pennsylvania. Any controversy, dispute or claim arising out of or relating to this Agreement, or the breach hereof, including a claim for injunctive relief, or any claim which, in any way arises out of or relates to, Executive's employment with the Company or the termination of said employment, including but not limited to statutory claims for discrimination, shall be resolved by arbitration in accordance with the then current rules of the American Arbitration Association respecting employment disputes. The hearing of any such dispute will be held in Pittsburgh, Pennsylvania, and the parties shall bear their own costs, expenses and counsel fees. The decision of the arbitrator(s) will be final and binding on all parties. Executive and the Company expressly consent to the jurisdiction of any such arbitrator over them. 18. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall in no way affect the interpretation of any of the terms or conditions of this Agreement. 19. Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 20. Original Agreement. The parties agree that the Original Agreement is terminated and superseded in all respects upon the effectiveness of this Agreement. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above mentioned. MYLAN LABORATORIES INC. EXECUTIVE: /s/ Robert J. Coury /s/ Stuart A. Williams - ----------------------------------- ---------------------------------- By: Robert J. Coury Stuart A. Williams Its: Vice Chairman and CEO 9 EX-10.31 6 j1082801exv10w31.txt EXHIBIT 10.31 Exhibit 10.31 EXECUTION COPY MYLAN LABORATORIES INC. INDEMNIFICATION AGREEMENT This Indemnification Agreement (the "Agreement") is made this __ day of _________________, by and between Mylan Laboratories Inc., a Pennsylvania corporation (the "Corporation"), and _______ ("Indemnitee"). WHEREAS, Indemnitee is a director of the Board of the Corporation and performs a valuable service in such capacity for the Corporation; and WHEREAS, Article VIII of the Second Amended and Restated Bylaws (the "Bylaws") of the Corporation provides for indemnification of and advancement of expenses to certain persons acting on behalf of the Corporation; and WHEREAS, such Bylaws, and Chapter 17, Subchapter D, of the Pennsylvania Business Corporation Law of 1988, as amended (the "BCL"), specifically provide that the indemnification and advancement of expenses provided by or pursuant to the BCL is not exclusive of any other rights to which any person may be entitled under any agreement, and thus contemplate that agreements may be entered into with respect to indemnification and advancement of expenses; and WHEREAS, the Corporation and Indemnitee recognize that the increase in corporate litigation subjects directors and officers to substantial risks of personal liability and expensive litigation; and WHEREAS, the Corporation and Indemnitee further recognize that recent developments have resulted in the significant increase in the cost of liability insurance for the Corporation's directors and officers and the general reductions in the coverage afforded by such insurance; and WHEREAS, such recent developments have raised uncertainties concerning the adequacy and reliability of the protection afforded by directors' and officers' liability insurance; and WHEREAS, in order to ameliorate such uncertainties and to induce Indemnitee to continue to serve the Corporation, the Corporation has determined it to be fair and in the best interests of the Corporation to enter into this Agreement with Indemnitee. NOW, THEREFORE, in consideration of Indemnitee's continued service to the Corporation after the date hereof, the parties hereto, intending to be legally bound, agree as follows: 1. Certain Definitions. (a) "Proceeding" shall mean any threatened, pending or completed action, suit or proceeding, alternative dispute resolution mechanism, or any hearing, inquiry or investigation, that Indemnitee in good faith believes might lead to the institution of any such action, suit, proceeding or alternative dispute mechanism, whether civil, criminal, administrative, investigative or otherwise, whether brought by or in the name of the Corporation or otherwise. (b) "Expenses" shall mean all expenses, liability and loss (including attorneys' fees and disbursements and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or participate in, any actual, threatened or completed action, suit, or proceeding, or any alternative dispute resolution mechanism, hearing or investigation), judgments, fines, ERISA excise taxes or penalties, amounts paid in settlement (if such settlement is approved in advance by the Corporation which approval shall not be unreasonably withheld) and punitive and exemplary damages, actually incurred, in respect of any Proceeding, and any federal, state, local or foreign income taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement or otherwise in respect of indemnification (and any federal, state, local or foreign income taxes attributable thereto). 2. Indemnification. (a) The Corporation shall hold harmless and indemnify the Indemnitee against any and all Expenses actually incurred by Indemnitee in connection with any Proceeding to which the Indemnitee is, was or at any time becomes a party, or is threatened to be made a party or is involved (as a witness or otherwise) by reason of (or arising as a whole or in part out of) the fact that Indemnitee is or was a director or officer of the Corporation or of any subsidiary of the Corporation, or is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, whether the basis of such Proceeding is alleged action or the failure to take action in Indemnitee's official capacity, or in any other capacity while serving as a director, officer, trustee, employee or agent (an "Indemnifiable Event"); provided, however, the Corporation shall indemnify Indemnitee only if such Proceeding (or part thereof) was authorized by the board of directors of the Corporation, or except as otherwise provided herein. (b) Notwithstanding the provisions of Paragraph 2(a), if it shall be determined by a court that Indemnitee's act or failure to act giving rise to the claim for indemnification constituted willful misconduct or recklessness, any such claim shall not constitute an Indemnificable Event and the Corporation shall have obligation to indemnify Indemnitee hereunder against any Expenses in connection with such claim; provided, however, that if a determination is made in any appellate court Proceeding (as to which all rights of appeal therefrom have been exhausted or lapsed) that such conduct did not constitute willful misconduct or recklessness (or any determination by a court having such a similar effect, or that indemnification is otherwise permissible), upon such determination, such claim shall constitute an "Indemnifiable Event", and the Corporation shall indemnify Indemnitee for all Expenses hereunder in connection with such claim including, without limitation, any amount of Expenses for which indemnification was previously denied with respect to any claim on the basis of such earlier adverse court determination. -2- 3. Advancement of Expenses. The Corporation shall promptly pay all Expenses incurred by Indemnitee from time to time by reason of Indemnitee's actual or threatened participation (as a party, witness or other participant) in any Proceeding (including, without limitation, appellate Proceedings) for which a claim for indemnification is made hereunder, in advance of the final disposition of such Proceeding. Unless otherwise agreed, Indemnitee will request third parties to furnish invoices relating to amounts incurred as Expenses directly to the Corporation, which shall promptly make payment thereon directly to such third parties. 4. Undertaking to Repay Expenses. (a) In the event of a determination by a court (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee's conduct relating to any claim for indemnification constituted willful misconduct or recklessness, the Indemnitee shall repay to the Corporation such amount of the Expenses or the appropriate portion thereof, so paid or advanced; provided, however, that Indemnitee shall not be obligated to make such repayment if and to the same extent that, notwithstanding such final judicial determination, such court or the Corporation shall have determined that indemnification of some or all Expenses incurred by Indemnitee is appropriate and permitted under applicable law. (b) For purposes of any determination of the amount of Expenses, if any, subject to repayment under this Paragraph 4, such amount shall be determined taking into account the provisions of Paragraph 6(b) hereof. 5. Enforcement. Indemnitee shall be entitled to be indemnified for, and the Corporation shall be obligated to pay, any and all attorneys' fees and expenses incurred by Indemnitee in connection with any action, suit or proceeding commenced by Indemnitee (and including such fees and expenses with respect to any appellate proceeding commenced thereon by either party) to enforce rights or to collect monies under, or interpret any of the terms of, this Agreement or under any liability insurance policies maintained by the Corporation; provided, however, that Indemnitee shall not be entitled to be indemnified for any such amount if, as a part of such action, suit or proceeding, a final judicial determination shall be made (as to which all rights of appeal therefrom have been exhausted or lapsed) that each and every material assertion made by Indemnitee as a basis of such action, suit or proceeding was frivolous. The Corporation shall pay all such amounts in advance of the judicial determination of any such action, suit or proceeding contemplated in this paragraph (including appellate proceedings) in accordance with Paragraph 3 hereof. 6. Partial Indemnification. (a) If Indemnitee is entitled under any provision of this Agreement to indemnification by the Corporation for some or a portion of the Expenses actually incurred by Indemnitee in respect of any Proceeding, but not for the total amount of such Expenses, the Corporation shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled. (b) For purposes of this Paragraph 6: -3- i. the Corporation shall have the burden of proof to establish that Indemnitee is not entitled to be indemnified for any amount of Expenses actually incurred by Indemnitee in respect of any Proceedings, and ii. if Indemnitee is entitled to indemnification with respect to some but not all claims, such Indemnitee shall be entitled to indemnification of Expenses in an amount which is the greater of: (A) an amount equal to a percentage of the total Expenses expressed as a fraction where the numerator is the number of claims on which Indemnitee is entitled to indemnification and the denominator is the total number of claims, or (B) an amount equal to a percentage of the total Expenses expressed as a fraction where the numerator is the amount of requested relief denied and the denominator is the total relief sought. 7. Cooperation; Settlement. Indemnitee shall not make any admission or effect any settlement with respect to any action, suit or proceeding without the Corporation's prior written consent. The Corporation shall not settle any action, suit or proceeding in any manner which would impose any penalty or limitation on Indemnitee without Indemnitee's prior written consent. Neither the Corporation nor Indemnitee will unreasonably withhold consent to any proposed settlement; provided, however, that if the Corporation withholds its consent to any settlement proposed by Indemnitee reasonably and in good faith, the Corporation shall thereafter, to the fullest extent permitted by law and this Agreement, (i) advance attorneys' fees and all other expenses in the manner provided in Paragraph 3 hereof, with respect to any separate counsel thereafter retained by Indemnitee in connection with such action, suit or proceeding, and (ii) confirm in a manner reasonably satisfactory to Indemnitee that, with respect to such action, suit or proceeding, the Corporation shall provide indemnification and/or advancement of expenses to Indemnitee without regard to any defense, offset, counterclaim or any other basis for which the Corporation may otherwise content Indemnitee's entitlement to such amounts. Indemnitee shall cooperate to the extent reasonably possible with the Corporation and its insurers in attempts to defend or settle such action, suit or proceeding. 8. Notification; Assumption of Defense; Selection of Counsel. As soon as practicable after receipt by Indemnitee of notice of the commencement of a Proceeding made against or otherwise involving Indemnitee for which Indemnitee may be entitled to be indemnified, Indemnitee shall notify the Corporation in writing of the commencement thereof (but the failure to notify the Corporation shall not relieve it from any liability which it may have under this Agreement unless and to the extent that it has been prejudiced in a material respect by such failure or from the forfeiture of substantial rights and defenses). The Corporation will be entitled to participate therein, and to the extent it may elect by written notice delivered to Indemnitee after receiving the aforesaid notice from Indemnitee, to assume the defense thereof with counsel reasonably satisfactory to Indemnitee, which may be the same counsel as counsel to the Corporation. Notwithstanding the foregoing, Indemnitee shall have the right to employ such Indemnitee's own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the employment of such counsel shall have been authorized -4- in writing by the Corporation, or (ii) the Corporation shall not have employed counsel reasonably satisfactory to Indemnitee to take charge of the defense of such action within a reasonable time after notice of commencement of the action, or (iii) Indemnitee shall have retained such counsel pursuant to the provisions of Paragraph 7 hereof, or (iv) Indemnitee shall have reasonably concluded, based upon the written advice of counsel to Indemnitee, that a conflict of interest exists which makes representation by counsel chosen by the Corporation not advisable. In any of the events referred to in (i) through (iv) in the preceding sentence, the Corporation shall not have the right to direct the defense of such action on behalf of Indemnitee, and the fees and expenses of one separate counsel retained by Indemnitee shall be borne by the Corporation. 9. Subrogation; No Duplication of Payments. (a) In the event of payment under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Corporation effectively to bring suit to enforce such rights. (b) The Corporation shall not be liable under this Agreement to make payment of any amounts contemplated under this Agreement, to the extent the Indemnitee has actually received payment (under any insurance policy, the Corporation's Articles of Incorporation or its Bylaws or otherwise) of the amounts otherwise payable hereunder. 10. Contribution. If the indemnification provided in Paragraph 2 is unavailable and may not be paid to Indemnitee because such indemnification is not permitted by law or otherwise under the provisions of this Agreement, then in respect of any Proceeding in which the Corporation is jointly liable with Indemnitee (or would be if joined in such action, suit, or proceeding), the Corporation shall contribute to the fullest extent permitted by law, to the amount of Expenses incurred and paid or payable by Indemnitee in such Proceeding in such proportion as is appropriate to reflect (i) the relative benefits received by the Corporation on the one hand and Indemnitee on the other hand from the transaction from which such Proceeding arose, and (ii) the relative fault of the Corporation on the one hand and of Indemnitee on the other in connection with the events which resulted in such Expenses, as well as any other relevant equitable considerations. The relative fault of the Corporation on the one hand and of Indemnitee on the other shall be determined by reference to among other things, the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent the circumstances resulting in such Expenses. The Corporation agrees that it would not be just and equitable if contribution pursuant to this Paragraph 10 were determined by pro rata allocation or any other method of allocation, which does not take account of the foregoing equitable considerations. 11. Liability, Insurance and Funding. To the extent the Corporation maintains an insurance policy or policies providing directors' and officers' liability insurance, the Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any director or officer of the Corporation. -5- 12. Nonexclusivity; Changes in the Law. (a) The right to indemnification and advancement of Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which the Indemnitee may be entitled under the Corporation's Articles of Incorporation or its Bylaws, any applicable laws and regulations in effect now or in the future, any insurance policy, any agreement, any vote of shareholders of the Corporation or disinterested directors, or otherwise, both as to actions in Indemnitee's official capacity and as to actions in another capacity while holding such office. The protection and rights provided by this Agreement and all such other protections and rights are intended to be cumulative. (b) In the event of any change, after the date of this Agreement, in any applicable law, statute, or rule, or the interpretation thereof, which expends the right of the Corporation to indemnify the Indemnitee or any other person serving in a capacity referred to in Paragraph 2 hereof, such change shall be deemed to have been made to Indemnitee's rights, and the Corporation's obligations, respectively, under this Agreement. In the event of any change in any applicable law, statute, or rule, or the interpretation thereof, which narrows the right of the Indemnitee to receive indemnification and/or the advancement of expenses hereunder, such change, to the extent not explicitly required by such law, statute or rule to be applied to this Agreement, shall have no effect on this Agreement or the parties' rights and obligations hereunder. 13. Continuation of Indemnity. All agreements and obligations of the Corporation contained in this Agreement shall continue during the period the Indemnitee is a director or officer of the Corporation or any subsidiary (or is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including any employee benefit plan) and shall continue thereafter so long as the Indemnitee shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative, by reason of the fact that the Indemnitee was a director or officer of the Corporation or serving in any other capacity referred to above. 14. Notices. All notices, statements, requests and demands given to or made upon either party hereto in accordance with the provisions of this Agreement shall be in writing and shall be deemed to be given or made when personally delivered, or when deposited in the U.S. Mail, first-class, registered or certified mail, postage prepaid, addressed as follows: If to the Corporation: Mylan Laboratories Inc. 781 Chestnut Ridge Road Morgantown, West Virginia 26504-4310 Attention: Roger L. Foster, Esq. Senior Vice President, General Counsel and Secretary If to Indemnitee: to the most recent address on file with the Company. -6- or in accordance with the latest unrevoked written direction from either party to the other party hereto. 15. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation each portion of any Paragraph of this Agreement containing any such provision held to be invalid, illegal, or unenforceable, that is not itself invalid, illegal, or unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement (including without limitation each portion of any Paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable. 16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania applicable to contracts made and to be performed in the Commonwealth of Pennsylvania, without giving effect to the principles of conflict of laws thereof. 17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. 18. Binding Effect; Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Corporation, spouses, heirs, and personal and legal representatives. The Corporation shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all, or a substantial part, of the business and/or assets of the Corporation, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume all of the Corporation's obligations under and agree to perform this Agreement in the same manner, and to the same extent that the Corporation would be required to perform if no such succession had taken place, and thereafter the term "Corporation" whenever used in this Agreement shall mean and include any such successor or transferee. 19. Consent to Jurisdiction. The Corporation and Indemnitee each hereby consent to the non-exclusive jurisdiction of the state courts of the Commonwealth of Pennsylvania in and for Allegheny County for all purposes in connection with any action or proceeding which arises out of or relates to this Agreement. 20. Amendment and Termination. No amendment, modification, termination or cancellation of this Agreement shall be effective unless it is in writing signed by both the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a -7- waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. 21. Integration and Entire Agreement. This Agreement sets forth the entire understanding between the parties hereto and supersedes and merges all previous written and oral negotiations, commitments, understandings and agreements relating to the subject matter hereof between the parties hereto. 22. Headings. The Paragraph and other headings contained in this Agreement are for reference purposes only and shall not control or affect its construction or interpretation in any respect. 23. No Construction as Employment Agreement. Nothing contained in this Agreement shall be construed as giving Indemnitee any right to be retained in the employ of the Corporation or any of its subsidiaries. [SIGNATURE PAGE FOLLOWS] -8- IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written. MYLAN LABORATORIES INC. By:______________________________________ Name: Title: INDEMNITEE By: ______________________________________ Name: Title: Director -9- EX-31.1 7 j1082801exv31w1.txt EXHIBIT 31.1 EXHIBIT 31.1 CERTIFICATION OF CEO PURSUANT TO SECURITIES EXCHANGE ACT RULES 13A-15(C) AND 15D-15(E) AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Robert J. Coury, Chief Executive Officer of Mylan Laboratories Inc., certify that: 1. I have reviewed this quarterly report on Form 10-Q/A of Mylan Laboratories Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the period[s] presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and c) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): a) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: December 2, 2004 /s/ Robert J. Coury ------------------------- Robert J. Coury Chief Executive Officer EX-31.2 8 j1082801exv31w2.txt EXHIBIT 31.2 EXHIBIT 31.2 CERTIFICATION OF CFO PURSUANT TO SECURITIES EXCHANGE ACT RULES 13A-15(C) AND 15D-15(E) AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Edward J. Borkowski, Chief Financial Officer of Mylan Laboratories Inc. certify that: 1. I have reviewed this quarterly report on Form 10-Q/A of Mylan Laboratories Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the period[s] presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and c) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): a) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: December 2, 2004 /s/ Edward J. Borkowski ------------------------- Edward J. Borkowski Chief Financial Officer EX-32 9 j1082801exv32.txt EXHIBIT 32 EXHIBIT 32 CERTIFICATION OF CEO AND CFO PURSUANT TO 18 U.S.C. SECTION 1350 AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report on Form 10-Q/A of Mylan Laboratories Inc. (the "Company") for the period ended September 30, 2004 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), each of the undersigned, in the capacities and on the date indicated below, hereby certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to his knowledge: 1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: December 2, 2004 /s/ Robert J. Coury ------------------------- Robert J. Coury Chief Executive Officer /s/ Edward J. Borkowski ------------------------- Edward J. Borkowski Chief Financial Officer A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request. The foregoing certification is being furnished in accordance with Securities and Exchange Commission Release No. 34-47551 and shall not be considered filed as part of the Form 10-Q/A. -----END PRIVACY-ENHANCED MESSAGE-----