AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.19
(c)
AMENDMENT TO
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDMENT TO THE EXECUTIVE EMPLOYMENT AGREEMENT (this “Amendment”) by and between Mylan
Inc. (the “Company”) and Xxxxx Xxxxx (“Executive”), is made as of December 22, 2008.
WHEREAS, the Company and Executive are parties to that certain Executive Employment Agreement
dated as of January 31, 2007 (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 4(b) of the Agreement: | |
| Such bonus shall be paid no later than March 15th of the year following the year in which the annual award is no longer subject to a substantial risk of forfeiture. | ||
| 2. | The first sentence of Section 9(a)(iii) is hereby deleted and replaced with the following two sentences: |
If Executive resigns with Good Reason and complies in all respects with his obligations
hereunder, Mylan will pay Executive a lump sum amount equal to his then-current annual
Base Salary (or, to the extent not subject to accelerated taxation and/or tax penalties
under Section 409A, at the Company’s discretion, salary continuation payments for 12
months following his separation from the Company, payable in accordance with the
Company’s normal payroll practices), plus an amount equal to the bonus that Executive
would have been entitled to receive for the fiscal year in which the termination occurs,
pro-rated based on the portion of such year during which Executive was employed by the
Company. Subject to Section 9(h), such payment will be made within thirty (30) days
following Executive’s termination of employment.
| 3. | The first sentence of Section 9(c) is hereby deleted and replaced with the following two sentences: |
If Mylan discharges Executive without Cause, Mylan will pay Executive a lump sum amount
equal to his then-current annual Base Salary (or, to the extent not subject to
accelerated taxation and/or tax penalties under Section 409A, at the Company’s
discretion, salary continuation payments for 12 months following his separation from the
Company, payable in accordance with the Company’s normal payroll practices), plus a pro
rata bonus equal to the bonus that Executive would have been entitled to receive for the
fiscal year in which the termination occurs. Subject to Section 9(h),
such payment will be made within thirty (30) days following Executive’s termination of
employment.
| 4. | Section 9(e) is hereby deleted in its entirety and replaced with the following: |
Extension or Renewal. If this Agreement has not been sooner terminated for any of the
reasons stated in Sections 9(a), (b), (c) or (d) of this Agreement, the Term of
Employment may be extended or renewed upon mutual agreement of Executive and the
Company. If the Term of Employment is not extended or renewed on terms mutually
acceptable to Executive and the Company, Executive may terminate his employment at the
expiration of the contract, and the Company shall pay Executive a lump sum amount equal
to his then-current annual Base Salary (or, to the extent not subject to accelerated
taxation and/or tax penalties under Section 409A, at the Company’s discretion, salary
continuation payments for 12 months following his separation from the Company, payable
in accordance with the Company’s normal payroll practices), which amount shall be paid
within thirty (30) days following Executive’s separation from the Company, and
Executive’s health insurance benefits shall be continued for 12 months at the Company’s
cost; provided, however, that in the case of health insurance
continuation, the Company’s obligation to provide health insurance benefits shall end at
such time as Executive, at his option, voluntarily obtains health insurance benefits.
| 5. | Section 9(h) of the Agreement is hereby deleted in its entirety and replaced with the following: |
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, Executive shall not be considered to have terminated employment with the
Company for purposes of this Agreement and no payments shall be due to Executive under
Section 9 of this Agreement until 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 Section 9 that are due within the “short term
deferral period” as defined in 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 Executive’s
termination of employment shall instead be paid on the first business day after the date
that is six months following Executive’s termination of employment (or death, if
earlier). To the extent required to avoid an accelerated or additional tax under
Section 409A of
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the Code, amounts reimbursable to Executive under this Agreement shall be paid to
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 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 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
Executive remits the related taxes.
| 6. | This Amendment shall be governed by, interpreted under and construed in accordance with the laws of the Commonwealth of Pennsylvania. | |
| 7. | Except as modified by this Amendment, the Agreement is hereby confirmed in all respects. |
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/ Xxxxx Xxxxx | ||||
| Xxxxx Xxxxx | ||||
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