Exhibit 10.11



 






Exhibit 10.11




AMENDED AND RESTATED RETIREMENT BENEFIT AGREEMENT




       This Amended Retirement Benefit Agreement (the “Agreement”) is entered into as of the
31st day of December, 2004 (the “Effective Date”) by and between:




Mylan Laboratories Inc., a Pennsylvania corporation, with offices located at 1500 Corporate
Drive, Canonsburg, PA 15317 (hereinafter referred to as “Mylan” or “Company”).




and




John P. O’Donnell, an executive officer of Mylan (hereinafter referred to as “Executive”).




WHEREAS, the parties entered into a Retirement Benefit Agreement effective March 14, 1995
(the “Prior Agreement”);




WHEREAS, Executive performs valuable services for the Company;



       WHEREAS, in recognition of his continuing service to Mylan, the Company wishes to provide
Executive with financial assistance with respect to certain retirement and death; and



       WHEREAS, the parties wish to RESCIND, and REPLACE the Prior Agreement with this Agreement;



       WITNESSETH THEREFORE that in consideration of the additional benefits provided for hereunder,
the premises and covenants set forth herein, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the Company and Executive, intending to be legally
bound, agree as follows:




	I.  	DEFINITIONS
	 
	   	Whenever used in the Agreement the following terms shall be defined as follows:






	 	(a)  	“Agreement” shall mean this Retirement Benefit Agreement
which is entered into as of the 2nd day of December, 2004.
	 
	 	(b)  	“At-Will” shall mean with respect to the period of
Executive’s employment with Mylan or any subsidiary thereof, that the Company
is under no obligation to continue to employ Executive for any period of time,
and can terminate his employment at any time without notice, subject to
certain statutory and regulatory requirements, and if applicable, any
contractual rights Executive
may have; and that Executive is under no obligation to remain employed by
the Company or any subsidiary thereof.




 









 






	 	(c)  	“Board” shall mean the Board of Directors of the Company.
	 
	 	(d)  	“Change in Control” shall mean:






	 	(1)  	The acquisition by any individual, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) (a “Person”) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act or any
successor provision) of 20% or more of either (A) the
then-outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock”) or (B) the combined voting power
of the then-outstanding voting securities of the Company entitled to
vote generally in the election of directors (the “Outstanding Company
Voting Securities”); provided, however, that the following
acquisitions shall not constitute a Change in Control: (i) any
acquisition directly from the Company or any of its subsidiaries,
(ii) any acquisition by the Company or any of its subsidiaries, (iii)
any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any subsidiary thereof,
(iv) any acquisition by a Person that is permitted to, and actually
does, report its beneficial ownership on Schedule 13G (or any
successor schedule); provided that, if any Person subsequently
becomes required to or does report its beneficial ownership on
Schedule 13D (or any successor schedule), then, for purposes of this
paragraph, such Person shall be deemed to have first acquired, on the
first date on which such Person becomes required to or does so
report, beneficial ownership of all of the Outstanding Company Common
Stock and Outstanding Company Voting Securities beneficially owned by
it on such date or (v) any acquisition pursuant to a transaction that
complies with (3)(A), (3)(B) and (3)(C) below; or
	 
	 	(2)  	Individuals who, as of Effective Date,
constitute the Board (the “Incumbent Board”) cease for any reason to
constitute at least a majority of the Board; provided, however, that
any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least two-thirds of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board;
provided, however, the
term “Incumbent Board” as used in this Agreement shall not include
any individual whose initial assumption of office occurs as a
result of or an actual or threatened




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	 	   	election contest with respect
to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board; or
	 
	 	(3)  	Consummation of a reorganization, merger,
statutory share exchange or consolidation or similar corporate
transaction involving the Company or any of its subsidiaries, a sale
or other disposition of all or substantially all of the assets of the
Company, or the acquisition of assets or stock of another entity by
the Company or any of its subsidiaries (each, a “Business
Combination”), in each case unless, following such Business
Combination, (A) the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Business Combination continue to represent (either by remaining
outstanding or being converted into voting securities of the
resulting or surviving entity or any parent thereof) more than 50% of
the then-outstanding shares of common stock and the combined voting
power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including,
without limitation, a corporation that, as a result of such
transaction, owns the Company or all or substantially all of the
Company’s assets either directly or through one or more
subsidiaries), (B) no Person (excluding any employee benefit plan (or
related trust) of the Company or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 20%
or more of, respectively, the then-outstanding shares of common stock
of the corporation resulting from such Business Combination or the
combined voting power of the then-outstanding voting securities of
such corporation, except to the extent that such ownership existed
prior to the Business Combination, and (C) individuals who comprise
the Incumbent Board immediately prior to such Business Combination
constitute at least a majority of the members of the board of
directors of the corporation resulting from such Business Combination
(including, without limitation, a corporation that, as a result of
such transaction, owns the Company or all or substantially of the
Company’s assets either directly or through one or more
subsidiaries); or
	 
	 	(4)  	Approval by the shareholders of the Company
of a complete liquidation or dissolution of the Company.




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	 	(e)  	“Code” shall mean the Internal Revenue Code of 1986, as
amended.
	 
	 	(f)  	“Exchange Act” shall mean the Securities Exchange Act of
1934, as amended.
	 
	 	(g)  	“Mylan” or “Company” shall mean Mylan Laboratories Inc. or
any Successor thereof.
	 
	 	(h)  	“NPV” shall mean the sum of the present value at any given
time of the monthly benefits to be paid, using a discount rate equal to the
long-term applicable federal rate then in effect (determined under Section
1274(d) of the Code), compounded semiannually. For purposes of calculating NPV
where monthly benefits have not yet commenced, it shall be assumed that such
benefits would have commenced immediately.
	 
	 	(i)  	“Party” or “Parties” shall mean the Company or Executive, or
both the Company and Executive depending upon which term is required by the
context in which it is used.
	 
	 	(j)  	“Retire” or “Retirement” shall mean the day and date on which
Executive’s employment with the Company is terminated by either Party for any
reason other than death of Executive.
	 
	 	(k)  	“Successor” shall mean any person, partnership, limited
partnership, joint-venture, corporation, trust or any other entity or
organization who, subsequent to the Effective Date, comes into possession of
or acquires, either directly or indirectly, all or substantially all of the
Company’s business, assets or voting stock, or the right to direct the
business activities and practices of the Company.






	II.  	RETIREMENT






	 	2.1  	Upon his Retirement from the Company on or after March 31, 2007 (the “Full
Vesting Date”), Executive shall receive an annual retirement benefit equal to one
hundred and fifty thousand dollars ($150,000) for a period of fifteen (15) years (the
“Retirement Benefit”); provided, however, that if Executive Retires before the Full
Vesting Date, Executive shall be entitled to receive an annual retirement benefits
equal to one-hundred thousand dollars ($100,000) for a period of ten (10) years
(“Partial Retirement Benefit”).
	 
	 	2.2  	The Retirement Benefit shall also become fully vested upon the occurrence of
a Change in Control prior to the Full Vesting Date if
Executive is employed by the Company or any subsidiary thereof immediately prior to
the date upon which the Change in Control occurs.




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	 	2.3  	Should Executive become unable to perform the material and substantial duties
of his position prior to the Full Vesting Date by reason of a mental or physical
incapacity, then, subject to receipt of the determination made pursuant to Section
2.4, Executive shall be fully vested in his Retirement Benefit. The date of receipt
of such determination shall be considered the date on which the Retirement Benefit
becomes fully vested.
	 
	 	2.4  	The certification of a licensed physician selected by the Company as to
Executive’s inability to perform the material and substantial duties of his position
shall be conclusive with respect to his status regarding the application of Section
2.3 hereof.
	 
	 	2.5  	Except as otherwise provided herein, the Company shall pay the amount due
hereunder in equal or substantially equal monthly installments. Subject to Article X
or as otherwise provided herein, the first payment of the Retirement Benefit or the
Partial Retirement Benefit, as the case may be, shall be made on the first day of the
month following the month in which Executive Retires, and each subsequent payment
shall be made on the first day of each successive month until Company’s obligations
with respect to such payments have been satisfied.






	III.  	DEATH BENEFIT






	 	3.1  	If, while employed by the Company or any subsidiary thereof, Executive dies
prior to Retirement, the Company shall pay Executive’s beneficiary, in a lump sum, one
million two hundred and fifty thousand dollars ($1,250,000).
	 
	 	3.2  	If Executive Retires, and thereafter dies before having received the entire
Retirement Benefit or Partial Retirement Benefit, as the case may be, the balance of
the payments due thereunder shall be paid to Executive’s beneficiary in a lump sum
payment equal to the NPV of the remaining payments.






	IV.  	CHANGE IN CONTROL






	 	4.1  	If Executive’s Retirement Benefit becomes vested as a result of a Change in
Control pursuant to Section 2.2 hereof, then upon Executive’s Retirement on or after
such Change in Control, Executive’s Retirement Benefit shall be paid to Executive in a
lump sum payment equal to the NPV of the Full Retirement Benefit. Subject to Article
X, such lump sum payment shall be paid to Executive as soon as practicable following
Retirement.
	 
	 	4.2  	If Executive Retires prior to the date of a Change in Control, then upon
occurrence of a Change in Control prior to Executive’s receipt of the entire
Retirement Benefit or Partial Retirement Benefit, as the case may be, the




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	 	   	balance of
the payments due hereunder shall be paid to Executive in a lump sum payment equal to
the NPV of the remaining payments. Subject to Article X, such lump sum payment shall
be paid to Executive as soon as practicable following the occurrence of the Change in
Control.
	 
	 	4.3  	Upon the occurrence of a Change in Control, Articles VII (Consulting
Services) and VIII (Eligibility for Payment) hereof shall no longer be of any force
and effect.






	V.  	SUCCESSORSHIP
	 
	   	This Agreement in its entirety shall be binding upon and enforceable against the Company
and its Successors.
	 
	VI.  	EXECUTIVE CONDUCT WITH RESPECT TO COMPETITORS






	 	6.1  	Executive agrees that he will not for a one year period commencing on the
date of his Retirement, without the prior written consent of the Company, directly or
indirectly, whether as an employee, officer, director, independent contractor,
consultant, stockholder, partner or otherwise, engage in or assist others to engage in
or have any interest in any business which competes with the Company in any geographic
area in which the Company markets or has marketed its products during the year
preceding Retirement; provided, however, that Executive shall not be subject to this
Article VI, if after the occurrence of a Change in Control, the Company refuses, fails
or disputes any payments to be made to Executive hereunder, whether or not Executive
subsequently receives the payments contemplated by this Agreement.
	 
	 	6.2  	Notwithstanding anything to the contrary set forth elsewhere herein, stock
ownership in a competing business shall not be a breach of this Agreement, provided
such stock is traded on a national exchange.
	 
	 	6.3  	The Parties agree and acknowledge that the time, scope and geographic area
and other provisions of this Agreement have been specifically negotiated by the
Parties, and Executive specifically hereby agrees that such time, scope and geographic
area and other provisions are reasonable under these circumstances. Executive further
agrees that if, despite the express agreement of the Parties to this Agreement, a
court should hold any portion of this Agreement unenforceable for any reason, the
maximum restrictions of time, scope and geographic area reasonable under the
circumstances, as determined by the court, will be substituted for the restrictions
herein which such court may find to be unreasonable or unenforceable.
	 
	 	6.4  	The Parties acknowledge that the breach of Section 6.1 will be such that the
Company will not have an adequate remedy at law because the rights




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	 	  	of the Company
under this Agreement are of a specialized and unique character, and that immediate and
irreparable damage will result to the Company if Executive breaches his obligations
under Section 6.1. The Company may, in addition to any other remedies and damages
available, seek an injunction to restrain any such breach. Executive represents and
warrants that his expertise and capabilities are such that his obligations under
Section 6.1 will not prevent him from earning a living.






	VII.  	CONSULTING SERVICES






	 	7.1  	During the five (5) year period beginning on the day following Executive’s
Retirement he shall, at the request of the Company, act in the capacity of a
consultant for the Company, performing such services as may be consistent with those
performed by him during Executive’s employment. These services may be designated by
the Board, or its authorized representative, and shall be reasonable in scope duration
and frequency. In no case shall Executive be required to devote in excess of twenty
(20) hours a month to the provision of consulting services hereunder.
	 
	 	7.2  	The Company shall pay Executive for such consulting services an hourly rate
to be determined by the Parties at such time, but not less than the rate of five
hundred dollars ($500) per hour, payable monthly.
	 
	 	7.3  	In addition to the foregoing, the Company shall reimburse Executive monthly
for any and all out-of-pocket expenses incurred by Executive directly for the benefit
of the business of the Company.






	VIII.  	ELIGIBILITY FOR PAYMENT






	 	8.1  	Any and all payments due hereunder may be denied if not already begun, or
terminated if they have begun, if in the Company’s sole judgment Executive is either
not eligible for such payments, or once such payments have begun is found to be or
found to have been ineligible.
	 
	 	8.2  	Executive shall not be eligible for any payments hereunder if the Company, in
its sole discretion, finds that during or subsequent to his employment with the
Company he:






	 	(a)  	breaches, or has breached any term, provision or obligation
enumerated herein;
	 
	 	(b)  	committed any act by commission or omission which materially
and substantially adversely affects the Company’s business or reputation; or
	 
	 	(c)  	is convicted of any violation of the Federal Food, Drug and
Cosmetic Act, or the violation of any other statute of material relevance to
the Company’s business.




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	 	8.3  	Should Executive be paid any benefits hereunder and thereafter be found
ineligible, or to have been ineligible, he must return to the Company that portion of
the benefit paid to him for the period of his ineligibility.






	IX.  	NO PROMISE OF CONTINUED EMPLOYMENT






	 	9.1  	Executive acknowledges his employment with the Company is AT-WILL.






	X.  	SECTION 409A OF THE CODE
	 
	   	Notwithstanding anything to the contrary herein, if Executive is a Specified Employee (as
defined in Section 409A of the Code) at the time he would otherwise be entitled to receive
any payment hereunder, any such payment shall be delayed until the earliest date permitted
by Section 409A(a)(2) of the Code.
	 
	XI.  	RESTRICTION OF ALIENABILITY
	 
	   	Benefits payable to Executive or beneficiary shall not be subject to assignment, transfer,
attachment, execution, garnishment, sequestration, or any other seizure under any legal or
equitable process, whether on account of Executive’s or beneficiary’s act or by operation
of the law.
	 
	XII.  	CONTRACT ADMINISTRATOR
	 
	   	The Vice President of Human Resources, or other officer of Mylan designated by the
Compensation Committee of the Company is hereby named the contract administrator for
purposes of assuring compliance with the terms and conditions set forth herein.
	 
	XIII.  	MODIFICATION
	 
	   	This Agreement may not be changed, amended or otherwise modified other than by a written
statement; provided, such statement is signed by both Parties, expresses their intent to
change the Agreement, and specifically describes such changes.
	 
	XIV.  	HEADINGS
	 
	   	Except when referenced in the body of this Agreement article headings are set forth herein
for the purpose of convenience only. Such headings shall not be considered or otherwise
referred to when any question or issue arises with respect to the application or
interpretation of any term or condition set forth herein.
	 
	XV.  	COUNTERPARTS
	 
	   	This Agreement may be executed in two or more counterparts, each of which is to be
considered an original, and taken together as one and the same document.




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	XVI.  	GOVERNING LAW
	 
	   	Any an all actions between the Parties regarding the interpretation or application of any
term or provision set forth herein shall be governed by and interpreted in accordance with
the substantive laws, and not the law of conflicts, of the Commonwealth of Pennsylvania.
The Company and Executive each do hereby respectively consent and agree that the courts of
Commonwealth of Pennsylvania shall have jurisdiction, and venue shall properly lie with the
courts of Commonwealth of Pennsylvania, with respect to any and all actions brought
hereunder. The Company agrees to pay as incurred (within 10 days following the Company’s
receipt of an invoice from Executive), to the full extent permitted by law, all legal fees
and expenses that Executive may reasonably incur as a result of any contest or disagreement
(regardless of the outcome thereof) by the Company, Executive or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any guarantee of
performance thereof (including as a result of any contest by Executive about the amount of
any payment pursuant to this Agreement), plus, in each case, interest on any delayed
payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.
No obligation of the Company under this Agreement to pay Executive’s fees or expenses shall
in any manner confer upon the Company any right to select or approve any of the attorneys
or accountants engaged by Executive.
	 
	XVII.  	SINGULAR OR PLURAL
	 
	   	The singular form of any noun or pronoun shall include the plural when the context in which
such word is used is such that it is apparent the singular is intended to include the
plural and vice versa.
	 
	XVIII.  	ASSIGNMENT
	 
	   	The Agreement may not be assigned by either Party, without the written authorization of the
other Party. A Successor shall not be considered an assignee for purposes of this Article.
	 
	XIX.  	ENTIRE AGREEMENT
	 
	   	The terms and conditions set forth herein contain the entire agreement between the Company
and Executive, and supersede any and all prior agreements (including the Prior Agreement)
or understandings (whether express or implied) between the Parties with respect to the
matters set forth herein.
	 
	XX.  	SURVIVAL
	 
	   	Except as otherwise provided herein, Articles VI and VII hereof shall survive any
expiration or termination of this Agreement.




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	XXI.  	TERM
	 
	   	The term of this Agreement shall begin on the Effective Date and shall end on the date on
which Mylan makes the last payment to which it is obligated hereunder.





           IN WITNESS of their agreement to the terms and conditions set forth herein the Company and
Executive have caused the following signatures to be affixed hereto, effective as of the date first
set forth above:



MYLAN LABORATORIES INC.




	 	 	 	 	 	 	 
	By:

	 	 /s/ Robert J. Coury
	 	 	 	  /s/ John P. O’Donnell
	

	 	 
	 	 	 	 
	

	 	Robert J. Coury
	 	 	 	John P. O’ Donnell
	

	 	Vice Chairman and CEO
	 	 	 	 







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