EX-10.23



 







EXHIBIT 10.23




AMENDED AND RESTATED

TRANSITION AND SUCCESSION AGREEMENT




     AMENDED AND RESTATED TRANSITION AND SUCCESSION AGREEMENT, dated as of the 3rd day
of April, 2006 (this “Agreement”), by and between Mylan Laboratories Inc., a Pennsylvania
corporation (the “Company”), and Stuart A. Williams (the “Executive”).



     WHEREAS, the Company and the Executive are parties to a Transition and Succession Agreement
dated as December 15, 2003, as amended December 2, 2004;



     WHEREAS, the Company and the Executive wish to amend and restate such Transition and
Succession Agreement effective as of the date hereof;



     NOW, THEREFORE, in consideration of the promises and mutual obligations of the parties
contained herein, and for other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Executive agree as follows:



     Section 1. Certain Definitions.


(a) “Effective Date” means the first date during the Change of Control Period (as defined herein)
on which a Change of Control occurs. Notwithstanding anything in this Agreement to the contrary, if
a Change of Control occurs and if the Executive’s employment with the Company is terminated prior
to the date on which the Change of Control occurs, and if it is reasonably demonstrated by the
Executive that such termination of employment (1) was at the request of a third party that has
taken steps reasonably calculated to effect a Change of Control or (2) otherwise arose in
connection with or anticipation of a Change of Control, then “Effective Date” means the date
immediately prior to the date of such termination of employment. For the sake of clarity, it is
understood that if the Executive’s employment terminates prior to the Effective Date other than as
described in the preceding sentence, this Agreement shall thereupon be null and void and of no
further force and effect.



(b) “Change of Control Period” means the period commencing on the date hereof and ending on the
third anniversary of the date hereof; provided, however, that, commencing on the date one year
after the date hereof, and on each annual anniversary of such date (such date and each annual
anniversary thereof, the “Renewal Date”), unless previously terminated, the Change of Control
Period shall be automatically extended so as to terminate three years from such Renewal Date,
unless, at least 60 days prior to a Renewal Date no less than three years from the date hereof, the
Company shall give notice to the Executive that the Change of Control Period shall not be so
extended.



(c) “Affiliated Company” means any company controlled by, controlling or under common control with
the Company.



(d) “Change of Control” means:




 









 








     (1) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”)
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
20% or more of either (A) the then-outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock”) or (B) the combined voting power of the then-outstanding voting
securities of the Company entitled to vote generally in the election of directors (the “Outstanding
Company Voting Securities”); provided, however, that, for purposes of this Section 1(d), the
following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from
the Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any Affiliated Company or (iv)
any acquisition by any corporation pursuant to a transaction that complies with Sections
1(d)(3)(A), 1(d)(3)(B) and 1(d)(3)(C);



     (2) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease
for any reason to constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose election, or nomination for
election by the Company’s shareholders, was approved by a vote of at least two-thirds of the
directors then comprising the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board;



     (3) Consummation of a reorganization, merger, statutory share exchange or consolidation or
similar corporate transaction involving the Company or any of its subsidiaries, a sale or other
disposition of all or substantially all of the assets of the Company, or the acquisition of assets
or stock of another entity by the Company or any of its subsidiaries (each, a “Business
Combination”), in each case unless, following such Business Combination, (A) all or substantially
all of the individuals and entities that were the beneficial owners of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 60% of the then-outstanding shares
of common stock and the combined voting power of the then-outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the corporation resulting from
such Business Combination (including, without limitation, a corporation that, as a result of such
transaction, owns the Company or all or substantially all of the Company’s assets either directly
or through one or more subsidiaries) in substantially the same proportions as their ownership
immediately prior to such Business Combination of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any employee
benefit plan (or related trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the
then-outstanding shares of common stock of the corporation resulting from such Business Combination
or the combined voting power of the then-outstanding voting securities of such corporation, except
to the extent that such ownership existed prior to the Business Combination, and (C) at least a
majority of the members of the board of directors of the corporation resulting from such Business
Combination were



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members of the Incumbent Board at the time of the execution of the initial agreement or of the
action of the Board providing for such Business Combination; or




     (4) Approval by the shareholders of the Company of a complete liquidation or dissolution of
the Company.


(e) “Employment Agreement” means the Executive Employment Agreement dated as of July 1, 2004, by
and between the Company and the Executive, and any extension or modification thereof or any
successor agreement thereto.




     Section 2. Employment Period; Employment Agreement. The Company hereby agrees to continue the
Executive in its employ, subject to the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the second anniversary of the Effective Date (the
“Employment Period”), provided the Employment Period shall terminate sooner upon the Executive’s
termination of employment for any reason. Upon the Effective Date, the Employment Agreement, with
the exception of Section 9 thereof, which shall survive in all respects, shall be null and void and
of no further force or effect, provided the Executive shall be paid all amounts earned and due to
the Executive thereunder within twenty-four (24) hours of the Effective Date, subject in all
respects to Section 6 below.



     Section 3. Terms of Employment.



(a) Position and Duties.




     (1) During the Employment Period, (A) the Executive’s position (including status, offices,
titles and reporting requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those held, exercised and
assigned at any time during the 180-day period immediately preceding the Effective Date and (B) the
Executive’s services shall be performed at the office where the Executive was employed immediately
preceding the Effective Date or at any other location less than 30 miles from such office.



     (2) During the Employment Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to devote reasonable attention and time
during normal business hours to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to the Executive hereunder, to use the
Executive’s reasonable best efforts to perform faithfully and efficiently such responsibilities.
During the Employment Period, it shall not be a violation of this Agreement for the Executive to
(A) serve on corporate, civic or charitable boards or committees, (B) deliver lectures, fulfill
speaking engagements or teach at educational institutions and (C) manage personal investments, so
long as such activities do not significantly interfere with the performance of the Executive’s
responsibilities as an employee of the Company in accordance with this Agreement. It is expressly
understood and agreed that, to the extent that any such activities have been conducted by the
Executive prior to the Effective Date, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive’s responsibilities to the
Company.



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(b) Compensation.




     (1) Base Salary. During the Employment Period, the Executive shall receive an annual base
salary (the “Annual Base Salary”) at an annual rate at least equal to 12 times the highest monthly
base salary paid or payable, including any base salary that has been earned but deferred, to the
Executive by the Company and the Affiliated Companies in respect of the 12-month period immediately
preceding the month in which the Effective Date occurs. The Annual Base Salary shall be paid at
such intervals as the Company pays executive salaries generally. During the Employment Period, the
Annual Base Salary shall be reviewed at least annually, beginning no more than 12 months after the
Executive’s last salary review. Any increase in the Annual Base Salary shall not serve to limit or
reduce any other obligation to the Executive under this Agreement. The Annual Base Salary shall
not be reduced after any such increase and the term “Annual Base Salary” shall refer to the Annual
Base Salary as so increased.



     (2) Annual Bonus. In addition to the Annual Base Salary, the Executive shall participate in a
bonus program during the Employment Period and have a bonus which is no less favorable than the
bonus for other employees of his level at the Company and its Affiliated Companies.



     (3) Incentive, Savings and Retirement Plans. During the Employment Period, the Executive shall
be entitled to participate in all cash incentive, equity incentive, savings and retirement plans,
practices, policies, and programs applicable generally to other peer executives of the Company and
the Affiliated Companies, but in no event shall such plans, practices, policies and programs
provide the Executive with incentive opportunities (measured with respect to both regular and
special incentive opportunities, to the extent, if any, that such distinction is applicable),
savings opportunities and retirement benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company and the Affiliated Companies
for the Executive under such plans, practices, policies and programs as in effect at any time
during the 180-day period immediately preceding the Effective Date or, if more favorable to the
Executive, those provided generally at any time after the Effective Date to other peer executives
of the Company and the Affiliated Companies.



     (4) Welfare Benefit Plans. During the Employment Period, the Executive and/or the Executive’s
family, as the case may be, shall be eligible for participation in and shall receive all benefits
under welfare benefit plans, practices, policies and programs provided by the Company and the
Affiliated Companies (including, without limitation, medical, prescription, dental, disability,
employee life, group life, accidental death and travel accident insurance plans and programs) to
the extent applicable generally to other peer executives of the Company and the Affiliated
Companies, but in no event shall such plans, practices, policies and programs provide the Executive
with benefits that are less favorable, in the aggregate, than the most favorable of such plans,
practices, policies and programs in effect for the Executive at any time during the 180-day period
immediately preceding the Effective Date or, if more favorable to the Executive, those provided
generally at any time after the Effective Date to other peer executives of the Company and the
Affiliated Companies; .



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     (5) Expenses. During the Employment Period, the Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in accordance with the most
favorable policies, practices and procedures of the Company and the Affiliated Companies in effect
for the Executive at any time during the 180-day period immediately preceding the Effective Date
or, if more favorable to the Executive, as in effect generally at any time thereafter with respect
to other peer executives of the Company and the Affiliated Companies.



     (6) Fringe Benefits. During the Employment Period, the Executive shall be entitled to fringe
benefits, including, without limitation, tax and financial planning services, payment of club dues,
and, if applicable, use of an automobile and payment of related expenses, in accordance with the
most favorable plans, practices, programs and policies of the Company and the Affiliated Companies
in effect for the Executive at any time during the 180-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and the Affiliated Companies.



     (7) Office and Support Staff. During the Employment Period, the Executive shall be entitled to
an office or offices of a size and with furnishings and other appointments, and to exclusive
personal secretarial and other assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and the Affiliated Companies at any time during the
180-day period immediately preceding the Effective Date or, if more favorable to the Executive, as
provided generally at any time thereafter with respect to other peer executives of the Company and
the Affiliated Companies.



     (8) Vacation. During the Employment Period, the Executive shall be entitled to paid vacation
in accordance with the most favorable plans, policies, programs and practices of the Company and
the Affiliated Companies as in effect for the Executive at any time during the 180-day period
immediately preceding the Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer executives of the Company and the
Affiliated Companies.



     Section 4. Termination of Employment.


(a) Death or Disability. The Executive’s employment shall terminate automatically if the Executive
dies during the Employment Period. If either the Company or the Executive (or his legal
representative) determines in good faith that the Disability (as defined herein) of the Executive
has occurred during the Employment Period, such party may give the other party written notice
(“Disability Notice”) in accordance with Section 13(b) of his or its intention that the Executive’s
employment be terminated. In such event, the Executive’s employment with the Company shall
terminate effective on the 30th day after receipt of the Disability Notice by the Executive or by
the Company, as the case may be (the “Disability Effective Date”), provided that, within 30 days
after such receipt, the Executive shall not have returned to full-time performance of the
Executive’s duties. “Disability” means the absence of the Executive from the Executive’s duties
with the Company on a full-time basis for 180 consecutive business days as a result of incapacity
due to mental or physical illness that is determined to be total and permanent by a





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physician selected by the party providing the Disability Notice and reasonably acceptable to the
other party.



(b) Cause. The Company may terminate the Executive’s employment during the Employment Period for
Cause. “Cause” means:




     (1) the willful and continued failure of the Executive to perform substantially the
Executive’s duties (as contemplated by Section 3(a)(1)(A)) with the Company or any Affiliated
Company (other than any such failure resulting from incapacity due to physical or mental illness or
following the Executive’s delivery of a Notice of Termination for Good Reason (as defined herein)),
after a written demand for substantial performance is delivered to the Executive by the Board or
the Chief Executive Officer of the Company that specifically identifies the manner in which the
Board or the Chief Executive Officer of the Company believes that the Executive has not
substantially performed the Executive’s duties, or



     (2) the willful engaging by the Executive in illegal conduct or gross misconduct that is
materially and demonstrably injurious to the Company; which, in the case of clauses (1) and (2),
has not been cured within 30 days after a written demand for substantial performance is delivered
to the Executive by the Company that specifically identifies the manner in which the Company
believes that the Executive has grossly neglected his duties or has engaged in gross misconduct;
which, in the case of clauses (1) and (2), has not been cured within 30 days after a written demand
for substantial performance is delivered to the Executive by the Company that specifically
identifies the manner in which the Company believes that the Executive has grossly neglected his
duties or has engaged in gross misconduct.


For purposes of this Section 4(b), no act, or failure to act, on the part of the Executive shall be
considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive’s action or omission was in the best interests of the
Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer of the Company or a
senior officer of the Company or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the
best interests of the Company. The cessation of employment of the Executive shall not be deemed to
be for Cause unless and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than three-quarters of the entire
membership of the Board (excluding the Executive, if the Executive is a member of the Board) at a
meeting of the Board called and held for such purpose (after reasonable notice is provided to the
Executive and the Executive is given an opportunity, together with counsel for the Executive, to be
heard before the Board), finding that, in the good faith opinion of the Board, the Executive is
guilty of the conduct described in Section 4(b)(1) or 4(b)(2), and specifying the particulars
thereof in detail.



(c) Good Reason. The Executive’s employment may be terminated by the Executive for Good Reason or
by the Executive voluntarily without Good Reason. “Good Reason” means:




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     (1) the assignment to the Executive of any duties inconsistent in any respect with the
Executive’s position (including status, offices, titles and reporting requirements), authority,
duties or responsibilities as contemplated by Section 3(a), or any other diminution in such
position (or removal from such position), authority, duties or responsibilities in each case as in
existed immediately prior to the Change in Control (whether or not occurring solely as a result of
the Company’s ceasing to be a publicly traded entity or becoming a subsidiary or a division of a
publicly traded entity), excluding for this purpose an isolated, insubstantial and inadvertent
action not taken in bad faith and that is remedied by the Company promptly after receipt of notice
thereof given by the Executive;



     (2) any failure by the Company to comply with any of the provisions of Section 3(b), other
than an isolated, insubstantial and inadvertent failure not occurring in bad faith and that is
remedied by the Company promptly after receipt of notice thereof given by the Executive;



     (3) the Company’s requiring the Executive (i) to be based at any office or location other than
as provided in Section 3(a)(1)(B), (ii) to be based at a location other than the principal
executive offices of the Company if the Executive was employed at such location immediately
preceding the Effective Date, or (iii) to travel on Company business to a substantially greater
extent than required immediately prior to the Effective Date;



     (4) the failure by the Company to pay to the Executive any portion of any installment of
deferred compensation, or lump sum under any deferred compensation program of the Company within 7
days after the Executive provides the Company with written notice of the failure to pay such
compensation when it is due;



     (5) the failure by the Company to provide the Executive with the number of paid vacation days
and holidays to which the Executive was entitled as of the Effective Date;



     (6) any purported termination by the Company of the Executive’s employment otherwise than as
expressly permitted by this Agreement;



     (7) any failure by the Company to comply with and satisfy Section 11(c);




     (8) if the Company (or the entity effectuating a Change of Control) continues to exist and be
a company registered under the Securities Exchange Act of 1934, as amended, after the Effective
Date and continues to have in effect an equity-compensation plan, the failure of the Company to
grant to the Executive equity-based compensation with respect to a number of shares of common stock
of the Company (or the entity effectuating the Change of Control) at least as great as the average
annual percentage of the outstanding common stock of the Company with respect to which the
Executive received such equity-based compensation during the three calendar years immediately prior
to the Effective Date, which equity-based compensation is on terms, including pricing relative to
the market price at the time of grant, that is at least as favorable to the Executive as the terms
of the grant last made to the Executive prior to the Effective Date;



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     (9) failure to include the Executive in any program or plan of benefits (including, but not
limited to, stock option and deferred compensation plans), and failure to provide the Executive
similar levels of benefit amounts or coverage, which benefits are either provided or otherwise
offered to peer executives of the Company and the Affiliated Companies following the Effective
Date; or


For purposes of this Section 4(c), any good faith determination of Good Reason made by the
Executive shall be conclusive. Anything in this Agreement to the contrary notwithstanding, a
termination by the Executive for any reason pursuant to a Notice of Termination given during the
90-day period immediately following the first anniversary of the occurrence of a Change in Control
(other than a Change in Control occurring solely under Section 1(d)(3) of this Agreement where all
or substantially all of the individuals and entities that were the beneficial owners of the
Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to
a Business Combination beneficially own, directly or indirectly, more than 50% of the
then-outstanding shares of common stock following the Business Combination) shall be deemed to be a
termination for Good Reason for all purposes of this Agreement. The Executive’s mental or physical
incapacity following the occurrence of an event described above shall not affect the Executive’s
ability to terminate employment for Good Reason.



(d) Notice of Termination. Any termination by the Company for Cause, or by the Executive for Good
Reason (other than Disability, which is addressed in Section 4(a)), shall be communicated by Notice
of Termination to the other party hereto given in accordance with Section 13(b). “Notice of
Termination” means a written notice that (1) indicates the specific termination provision in this
Agreement relied upon, (2) to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s employment under the
provision so indicated, and (3) if the Date of Termination (as defined herein) is other than the
date of receipt of such notice, specifies the Date of Termination (which Date of Termination shall
be not more than 30 days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance that contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company, respectively, from asserting such
fact or circumstance in enforcing the Executive’s or the Company’s respective rights hereunder.



(e) Date of Termination. “Date of Termination” means (1) if the Executive’s employment is
terminated by the Company for Cause, or by the Executive for Good Reason, the date of receipt of
the Notice of Termination or any later date specified in the Notice of Termination (which date
shall not be more than 30 days after the giving of such notice), as the case may be, (2) if the
Executive’s employment is terminated by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies the Executive of such termination, and
(3) if the Executive’s employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability Effective Date, as the
case may be.




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(f) Non-Renewal of Employment Agreement. If (a) a Change in Control occurs solely under Section
1(d)(3) of this Agreement and all or substantially all of the individuals and entities that were
the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting
Securities immediately prior to a Business Combination beneficially own, directly or indirectly,
more than 50% of the then-outstanding shares of common stock following the Business Combination,
(b) the Executive does not experience a termination of employment within two years following the
Effective Date, and (iii) the Company and the Executive do not enter into an employment agreement
on terms mutually acceptable to the Company and the Executive, the Executive shall be entitled
voluntarily terminate employment during the month that is twenty-five (25) months following the
Effective Date and receive a payment no less than that set forth in Section 8(e) of the Executive’s
Employment Agreement.




     Section 5. Obligations of the Company upon Termination.


(a) Good Reason, Death or Disability; Other Than for Cause. If, during the Employment Period, the
Company terminates the Executive’s employment other than for Cause or the Executive resigns for
Good Reason or if the Executive’s employment is terminated as a result of the Executive’s death or
Disability:




     (1) the Company shall pay to the Executive (or the Executive’s estate or beneficiary, in the
event of the Executive’s death), in a lump sum in cash within 30 days after the Date of Termination
(or, if required by Section 409A of the Code to avoid the imposition of additional taxes, on the
date that is six (6) months following the Date of Termination), the aggregate of the following
amounts:



          (A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the
extent not theretofore paid, and (ii) any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon) and any accrued vacation pay, in each
case, to the extent not theretofore paid (the sum of the amounts described in subclauses (i) and
(ii) the “Accrued Obligations”); and




          (B) the amount equal to three (3) times the sum of: (i) the Executive’s then-current Annual
Base Salary, plus (ii) an amount equal to the highest bonus determined to date under Section 4(b)
of the Employment Agreement or paid to the Executive hereunder (in the case of death or the
Executive’s Disability, reduced (but not below zero) by any disability or death benefits that the
Executive or the Executive’s estate or beneficiaries are entitled to pursuant to plans or
arrangements of the Company).




     (2) For three years after the Executive’s Date of Termination (or such shorter period as
required by Section 409A of the Code to avoid the imposition of additional taxes), the Company
shall continue to provide benefits to the Executive and/or the Executive’s dependents at least
equal to those that were provided to them (taking into account any required employee contributions,
co-payments and similar costs imposed on the Executive and the Executive’s dependents and the tax
treatment of participation in the plans, programs, practices and policies by the Executive and the
Executive’s dependents) by or on behalf of the Company and or the Affiliated Companies in
accordance with the benefit plans, programs, practices and policies



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(including those provided under the Employment Agreement) in effect immediately prior to a Change
of Control or, if more favorable to the Executive, as in effect any time thereafter with respect to
other peer executives of the Company and the Affiliated Companies and their dependents; provided,
however, that, if the Executive becomes reemployed with another employer and is eligible to receive
such benefits under another employer provided plan, program, practice or policy, the medical and
other welfare benefits described herein shall be secondary to those provided under such other plan,
program, practice or policy during such applicable period of eligibility; and




     (3) to the extent not theretofore paid or provided, the Company shall timely pay or provide to
the Executive any Other Benefits (as defined in Section 6).


(b) Cause; Other Than for Good Reason. If the Executive’s employment is terminated for Cause during
the Employment Period, the Company shall provide to the Executive (1) the Executive’s Annual Base
Salary through the Date of Termination, (2) the amount of any compensation previously deferred by
the Executive, and (3) the Other Benefits, in each case, to the extent theretofore unpaid, and
shall have no other severance obligations under this Agreement. If the Executive voluntarily
terminates employment during the Employment Period, excluding a termination for Good Reason, the
Company shall provide to the Executive the Accrued Obligations and the timely payment or delivery
of the Other Benefits, and shall have no other severance obligations under this Agreement. In such
case, all the Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30
days of the Date of Termination.




     Section 6. Employment Agreement; Non-Exclusivity of Rights. The Executive shall be entitled to
the higher of the benefits and compensation payable under this Agreement or those payable under the
Employment Agreement as if the Change of Control were deemed a termination without Cause (as
defined therein). It is the intent of the parties that nothing in this Agreement or in the
Employment Agreement shall affect any right the Executive may have with respect to: (i) any vested
or other Benefits that the Executive is entitled to receive under any plan, policy, practice or
program of or any other contract or agreement with the Company or the Affiliated Companies at or
subsequent to a Change of Control (“Other Benefits”); and (ii) continuing or future participation
in any plan, program, policy or practice provided by the Company or the Affiliated Companies and
for which the Executive may qualify. If the Executive’s employment is terminated by reason of the
Executive’s Disability (or death), with respect to the provision of the Other Benefits, the term
“Other Benefits” shall include, and the Executive (or the estate or beneficiary of the Executive,
in the event of the Executive’s death) shall be entitled after the Disability Effective Date (or
upon the Executive’s death) to receive, disability (or death) benefits and other benefits at least
equal to the most favorable of those generally provided by the Company and the Affiliated Companies
to disabled executives (or to the estates and beneficiaries of deceased executives) and/or their
families in accordance with such plans, programs, practices and policies relating to disability (or
death), if any, as in effect generally with respect to other peer executives of the Company and the
Affiliated Companies and their families at any time during the 180-day period immediately preceding
the Effective Date or, if more favorable to the Executive and/or the Executive’s family, as in
effect at any time thereafter generally with respect to other peer executives of the Company and
the Affiliated Companies and their families.



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     Section 7. No Set-Off; Company’s Obligations; Mitigation. The Company’s obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense, or other claim, right or action
that the Company may have against the Executive or others. In no event shall the Executive be
obligated to seek other employment or take any other action by way of mitigation of the amounts
payable to the Executive under any of the provisions of this Agreement, and such amounts shall not
be reduced whether or not the Executive obtains other employment. The Company agrees to pay as
incurred (within 10 days following the Company’s receipt of an invoice from the Executive), to the
full extent permitted by law, all legal fees and expenses that the Executive may reasonably incur
as a result of any contest or disagreement (regardless of the outcome thereof) by the Company, the
Executive or others of the validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement), plus, in each case, interest
on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the
Internal Revenue Code of 1986, as amended (the “Code”). No obligation of the Company under this
Agreement to pay the Executive’s fees or expenses shall in any manner confer upon the Company any
right to select or approve any of the attorneys or accountants engaged by the Executive.



     Section 8. Certain Additional Payments by the Company.


(a) Whether or not the Executive becomes entitled to any payments hereunder, if any of the payments
or benefits received or to be received by the Executive (including any payment or benefits received
in connection with a Change of Control or the Executive’s termination of employment, whether pursuant to the terms of
this Agreement or any other plan, arrangement or agreement) (all such payments and benefits,
excluding the Gross-Up Payment, being hereinafter referred to as the “Total Payments”) will be
subject to the excise tax (“the Excise Tax”) imposed under Section 4999 of the Internal Revenue
Code of 1986, as amended (the “Code”), the Company shall pay to the Executive an additional amount
(the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any
Excise Tax on the Total Payments and any federal, state and local income and employment taxes and
Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of itemized
deductions and personal exemptions attributable to the Gross-Up Payment, shall be equal to the
Total Payments.



(b) For purposes of determining whether any of the Total Payments will be subject to the Excise
Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as “parachute
payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax
counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the accounting firm
which was, immediately prior to the Change of Control, the Company’s independent auditor (the
“Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments,
including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments”
within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax
unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered




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(within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount (as defined
in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not
subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or
benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3)
and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive
shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation
in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes
at the highest marginal rate of taxation in the state and locality of the Executive’s residence on
the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up
Payment is calculated for purposes of this Section 8, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local taxes.



(c) In the event that the Excise Tax is finally determined to be less than the amount taken into
account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company,
within five (5) business days following the time that the amount of such reduction in the Excise
Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus
that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local
income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the
extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar
reduction in the Executive’s taxable income and wages for purposes of federal, state and local
income and employment taxes, plus interest on the amount of such repayment at 120% of the rate
provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to
exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by
reason of any payment the existence or amount of which cannot be determined at the time of the
Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess
(plus any interest, penalties or additions payable by the Executive with respect to such excess)
within five (5) business days following the time that the amount of such excess is finally
determined. The Executive and the Company shall each reasonably cooperate with the other in
connection with any administrative or judicial proceedings concerning the existence or amount of
liability for Excise Tax with respect to the Total Payments.




     Section 9. Covenants of Executive.


(a) Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of
the Company all secret or confidential information, knowledge or data relating to the Company or
the Affiliated Companies, and their respective businesses, which information, knowledge or data
shall have been obtained by the Executive during the Executive’s employment by the Company or the
Affiliated Companies and which information, knowledge or data shall not be or become public
knowledge (other than by acts by the Executive or representatives of the Executive in violation of
this Agreement). After termination of the Executive’s employment with the Company, the Executive
shall not, without the prior written consent of the Company or as may otherwise be required by law
or legal process, communicate or divulge any such information, knowledge or data to anyone other
than the Company and those persons designated by the Company. In no event shall an asserted
violation of the provisions of this Section 9






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constitute a basis for deferring or withholding any amounts otherwise payable to the Executive
under this Agreement.



(b) Non-Competition. In consideration for the protections provided to the Executive under this
Agreement, the Executive agrees that from the Date of Termination until the first anniversary
thereof (the “Covenant Period”), the Executive will not, directly or indirectly, own, manage,
operate, control or participate in the ownership, management, operation or control of, or be
connected as an officer, employee, partner, director or otherwise with, or (other than through the
ownership of not more than five percent (5%) of the voting stock of any publicly held corporation)
have any financial interest in, or aid or assist anyone else in the conduct of, a business which at
the time of such termination competes in the United States with a business conducted by the Company
or any group, division or subsidiary of the Company (“Company Group”) as of the Date of
Termination. Notwithstanding the foregoing, the Executive’s employment by a business that competes
with the business of the Company, or the retention of the Executive as a consultant by any such
business shall not violate this Section 9(b) if the Executive’s duties and actions for the business
are solely for groups, divisions or subsidiaries that are not engaged in a business that competes
with a business conducted by the Company. No business shall be deemed to be a business conducted by
the Company unless the Company was engaged in the business as of the Date of Termination and
continues to be engaged in the business and at least twenty-five percent (25%) of the Company’s
consolidated gross sales and operating revenues, or net income, is derived from, or at least
twenty-five percent (25%) of the Company’s consolidated assets are devoted to, such business and no
business shall be deemed to compete with a business conducted by the Company unless at least
twenty-five percent (25%) of the consolidated gross sales and operating revenues, or net income, of
any consolidated group that includes the business, is derived from, or at least twenty-five percent
(25%) of the consolidated assets of any such consolidated group are devoted to, such business.



(c) Non-Solicitation. During the Covenant Period, the Executive shall not solicit on the
Executive’s behalf or on behalf of any other person the services, as employee, consultant or
otherwise of any person who on the Date of Termination is employed by the Company Group, whether or
not such person would commit any breach of his contract of service in leaving such employment,
except for any employee (i) whose employment is terminated by the Company or any successor thereof
prior to such solicitation of such employee, (ii) who initiates discussions regarding such
employment without any solicitation by the Executive, (iii) who responds to any public
advertisement unless such advertisement is designed to target, or has the effect of targeting,
employees of the Company, or (iv) who is initially solicited for a position other than by the
Executive and without any suggestion or advice from the Executive. Nothing herein shall restrict
businesses that employ the Executive or retain the Executive as an executive from soliciting from
time to time employees of the Company, if (A) such solicitation occurs in the ordinary course of
filling the business’s employment needs, and (B) the solicitation is made by persons at the
business other than the Executive who have not become aware of the availability of any specific
employees as a result of the advice of the Executive.



(d) Continuation of Employment. The Executive agrees not to voluntarily terminate employment with
the Company (other than (i) as a result of an event that would constitute Good Reason that is at
the request of a third party that has taken steps reasonably calculated to





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effectuate a Change of Control or otherwise arose in connection with or in anticipation of a Change
of Control or (ii) by reason of non-extension or non-renewal of the Employment Agreement or such
other employment agreement entered into by and between the Executive and the Company from time to
time) from such time as the Company has entered into an agreement that would result in a Change of
Control until the Change of Control; provided, that such provision shall cease to apply upon the
termination of such agreement or if the Change of Control has not occurred within one year
following the execution of such agreement.




     Section 10. Arbitration. Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the arbitrator’s award in any
court having jurisdiction; provided, however, that the Executive shall be entitled to seek specific
performance of the Executive’s right to be paid any amounts or provided with any benefits due to
the Executive hereunder during the pendency of any dispute or controversy arising under or in
connection with this Agreement.



     Section 11. [Intentionally Omitted]



     Section 12. Successors.


(a) This Agreement is personal to the Executive, and, without the prior written consent of the
Company, shall not be assignable by the Executive; provided, however, the Executive may designate
one or more beneficiaries to receive amounts payable hereunder after his death. This Agreement
shall inure to the benefit of and be enforceable by the Executive’s legal representatives.



(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors
and assigns. Except as provided in Section 12(c), without the prior written consent of the
Executive this Agreement shall not be assignable by the Company.



(c) The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession had taken place.
“Company” means the Company as hereinbefore defined and any successor to its business and/or assets
as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise.




     Section 13. Miscellaneous.


(a) This Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania, without reference to principles of conflict of laws. The captions of
this Agreement are not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified other than by a written agreement executed by the parties
hereto or their respective successors, permitted assigns and legal representatives.




14









 







(b) All notices and other communications hereunder shall be in writing and shall be given by hand
delivery to the other party or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:

if to the Executive:




     at the most recent address on record at the Company;



if to the Company:



Mylan Laboratories Inc.

1500 Corporate Drive

Canonsburg, PA 15317

Attention: Chief Executive Officer



or to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notice and communications shall be effective when actually received by the addressee.



(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement. Any invalid or unenforceable
provision shall be deemed severed from this Agreement to the extent of its invalidity or
unenforceability, and this Agreement shall be construed and enforced as if the Agreement did not
contain that particular provision to the extent of its invalidity or unenforceability, provided
that in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that
there shall be added as a part of this Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and enforceable.



(d) The Company may withhold from any amounts payable under this Agreement such United States
federal, state or local or foreign taxes as shall be required to be withheld pursuant to any
applicable law or regulation.



(e) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of
this Agreement or the failure to assert any right the Executive or the Company may have hereunder,
including, without limitation, the right of the Executive to terminate employment for Good Reason
under Section 4(c), shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.



(f) The Executive and the Company acknowledge that, except as provided in the Employment Agreement
or any other written agreement between the Executive and the Company, the employment of the
Executive by the Company is “at will” and, subject to Section 1(a), prior to the Effective Date,
the Executive’s employment may be terminated by either the Executive or the Company at any time
prior to the Effective Date, in which case the Executive shall have no further rights under this
Agreement. From and after the date of the Effective Date, except for any agreements providing for
retirement benefits and as otherwise specifically provided herein (including without limitation in
Section 6), this Agreement shall supersede any other agreement between the parties with respect to
the subject matter hereof.




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     IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has
caused these presents to be executed in its name on its behalf, all as of the day and year first
above written.



	 	 	 	 	 	 	 
	 	 	MYLAN LABORATORIES INC.
	 
	 	 	 	 	 	 
	 

	 	By: 
	/s/ Robert J. Coury	 	 
	 

	 	 	 	 	 
	 	 	Name: Robert J. Coury
	 	 	Title: Vice Chairman and CEO
	 
	 	 	 	 	 	 
	 	 	  /s/ Stuart A. Williams
	 	 	 	 	 
	 	 	Stuart A. Williams







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