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AMENDMENT NO. 3 TO
TRANSITION AND SUCCESSION AGREEMENT
THIS
AMENDMENT TO THE TRANSITION AND SUCCESSION AGREEMENT (this
“Amendment”) by and between Mylan Inc. (the
“Company”) and Edward J. Borkowski (the
“Executive”), is made as of December 22,
2008.
WHEREAS,
the Company and the Executive are parties to that certain
Transition and Succession Agreement dated as of December 15,
2003 and amended on December 2, 2004 and April 3, 2006
(the “Agreement”); and
WHEREAS,
the Company and Executive wish to further amend the Agreement as
set forth below to comply with Section 409A of the Internal
Revenue Code;
NOW,
THEREFORE, the Agreement is hereby amended as follows:
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1.
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The
following sentence is hereby added to the end of Section 5(a) of
the Agreement:
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Notwithstanding
the above, to the extent the Executive is terminated (i) prior
to the date on which a Change of Control occurs or
(ii) following a Change of Control but prior to a change in
ownership or control of the Company within the meaning of
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), amounts payable to the Executive
hereunder, to the extent not in excess of the amount that the
Executive would have received under any other pre-Change-of-Control
severance plan or arrangement with the Company had such plan or
arrangement been applicable, shall be paid at the time and in the
manner provided by such plan or arrangement and the remainder shall
be paid to the Executive in accordance with the provisions of this
Section 5(a).
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2.
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The
following shall be added as a new Section 13(g):
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Conditions
to Payment and Acceleration; Section 409A of the
Code . The intent of the
parties is that payments and benefits under this Agreement comply
with Section 409A of the Code to the extent subject thereto,
and, accordingly, to the maximum extent permitted, t
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