AMENDMENT NO. 3 TO TRANSITION AND SUCCESSION AGREEMENT
Exhibit 10.25
(d)
AMENDMENT NO. 3 TO
TRANSITION AND SUCCESSION AGREEMENT
TRANSITION AND SUCCESSION AGREEMENT
THIS AMENDMENT TO THE TRANSITION AND SUCCESSION AGREEMENT (this “Amendment”) by and between
Mylan Inc. (the “Company”) and Xxxxxx X. Xxxxx (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:
| 1. | The following sentence is hereby added to the end of Section 3(a) of the Agreement: |
Notwithstanding the above, to the extent the Executive is terminated (i) prior to the
date on which a Change of Control occurs, (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”), or (iii) more than two years
following a Change in Control but prior to a change in ownership or control of the
Company within the meaning of Section 409A of 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 3(a).
| 2. | In the first sentence of Section 3(a)(ii) of the Agreement, the phrase “In addition, for the remainder of the calendar year in which the Executive ceases to be employed by the Company and the Affiliated Companies, and during the two succeeding calendar years,” is hereby deleted in its entirety and replaced with the following phrase: |
“In addition, for a period of three years after the date on which the Executive ceases
to be employed by the Company and the Affiliated Companies,”
| 3. | The last sentence (set forth below) of Section 3(a)(ii) of the Plan is hereby deleted in its entirety. |
Upon publication of final treasury regulations under Section 409A of the Code, the
Company and the Executive shall consider in good faith amendments to Section 3(a)(ii)
which (i) are consistent with such final regulations and (ii) cause this Section
3(a)(ii) to be as consistent as practicable with the last sentence of Section 3(a) of
the Agreement as in effect prior to this Amendment No. 2 to the Agreement.
| 4. | The following shall be added as a new Section 9(f): |
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, this Agreement shall be interpreted and administered to be in compliance
therewith. Notwithstanding anything contained herein to the contrary, to the extent
required in order to avoid accelerated taxation and/or tax penalties under Section 409A
of the Code, the Executive shall not be considered to have terminated employment with
the Company for purposes of this Agreement and no payments shall be due to the Executive
under this Agreement until the Executive would be considered to have incurred a
“separation from service” from the Company within the meaning of Section 409A of the
Code. For purposes of this Agreement, each amount to be paid or benefit to be provided
shall be construed as a separate identified payment for purposes of Section 409A of the
Code, and any payments described in this Agreement that are due within the “short term
deferral period” within the meaning of Section 409A of the Code shall not be treated as
deferred compensation unless applicable law requires otherwise. To the extent required
in order to avoid accelerated taxation and/or tax penalties under Section 409A of the
Code, amounts that would otherwise be payable and benefits that would otherwise be
provided pursuant to this Agreement during the six-month period immediately following
the Executive’s termination of employment shall instead be paid on the first business
day after the date that is six months following the Executive’s termination of
employment (or death, if earlier). To the extent required to avoid an accelerated or
additional tax under Section 409A of the Code, amounts reimbursable to the Executive
under this Agreement shall be paid to the Executive on or before the last day of the
year following the year in which the expense was incurred and the amount of expenses
eligible for reimbursement (and in-kind benefits provided to the Executive) during any
one year may not effect amounts reimbursable or provided in any subsequent year;
provided, however, that with respect to any reimbursements for any taxes
which the Executive would become entitled to under the terms of the Agreement, the
payment of such reimbursements shall be made by the Company no later than the end of the
calendar year following the calendar year in which the Executive remits the related
taxes.
| 5. | This Amendment shall be governed by, interpreted under and construed in accordance with the laws of the Commonwealth of Pennsylvania. |
| 6. | Except as modified by this Amendment, the Agreement is hereby confirmed in all respects. |
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as of the date and the
year first written above.
| MYLAN INC. | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
| By: Xxxxxx X. Xxxxx | ||||
| Title: Chairman, Compensation Committee | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx |
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