Exhibit 10.2
AMENDMENT NO. 1 TO
TRANSITION AND SUCCESSION AGREEMENT
THIS AMENDMENT NO. 1 TO TRANSITION
AND SUCCESSION AGREEMENT (this “Amendment”) by and
between Mylan Laboratories Inc., a Pennsylvania corporation (the
“Company”), and Edward J. Borkowski (the
“Executive”), is made as of December 2, 2004.
WHEREAS, the Company and the
Executive are parties to that certain Transition and Succession
Agreement dated as December 15, 2003 (the
“Agreement”); and
WHEREAS, the Company and the
Executive wish to amend the Agreement, as set forth below;
NOW, THEREFORE, for good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
| 1. |
The last sentence of Section 3(a) of the Agreement is hereby
amended and restated in its entirety to read as follows: |
In
addition, for three years after the date the Executive’s
employment terminates, or such longer period as may be provided by
the terms of the appropriate plan, program, practice or policy, 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
(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.
| 2. |
Section 3(b) of the Agreement is hereby amended and
restated in its entirety to read as follows: |
(b)(1)
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
