Exhibit 10.4
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 Margaret
A. McKenna (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 of June 29, 2004 (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:
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1.
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Section 8 of the Agreement is
hereby amended and restated in its entirety to read as
follows:
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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 “AuditorR
