exv10w1






Exhibit 10.1




MYLAN




401(k) RESTORATION PLAN




(Effective January 1, 2010)




ARTICLE I

INTRODUCTION




          1.1. Name. The name of this Plan is the Mylan 401(k) Restoration Plan (the “Plan”).




          1.2. Effective Date. The effective date of this Plan is January 1, 2010.




          1.3. Purpose. This Plan is established and maintained by Mylan for the purposes of
providing Eligible Employees with the opportunity to (i) defer a portion of their Compensation on a
tax-favored basis, (ii) be credited with Matching Contributions on deferrals of Compensation that
exceed the limit on salary deferral contributions under Section 401(a)(17) of the Code, and (iii)
be credited with Non-Elective Contributions (to the extent so made by the Company) that exceed the
limits imposed by Section 401(a)(17) of the Code. Mylan intends that the Plan shall at all times
be maintained on an unfunded basis for federal income tax purposes under the Code and administered
as a non-qualified “top-hat” plan exempt from the substantive requirements of ERISA. Mylan also
intends that the Plan be operated and maintained in accordance with the requirements of Section
409A of the Code and the regulations and guidance thereunder.




ARTICLE II

DEFINITIONS




          Whenever the following initially capitalized words and phrases are used in this Plan, they
shall have the meanings specified below unless the context clearly indicates to the contrary:




          2.1. “Account” shall mean the unfunded account maintained for a Participant by the
Administrator to determine, from time to time, the Participant’s interest under this Plan.




          2.2. “Administrator” shall mean the Compensation Committee of the Board of Directors
of the Company, provided the Committee may delegate such of its powers and authority under the Plan
as it deems appropriate to a subcommittee or to designated officers or employees of the Company, in
which event references in the Plan to the Administrator shall be deemed to refer to the
delegate(s).




          2.3. “Affiliate” shall mean any of the subsidiaries or affiliates of the Company who
are Participating Employers in the Qualified 401(k) Plan.




 









 








          2.4. “Beneficiary” shall mean such person or legal entity as may be designated by a
Participant to receive benefits thereunder after such Participant’s death (or, in the absence of
any designation or the death of a Beneficiary, such person or entity who, by operation of law,
succeeds to the rights and obligations of the Participant upon his or her death).




          2.5. “Base Compensation” shall mean an Eligible Employee’s adjusted annual base
salary, to the extent paid in U.S. dollars from the Company’s U.S. payroll.




          2.6. “Board” shall mean the Board of Directors of the Company.




          2.7. “Bonus Compensation” shall mean an Eligible Employee’s adjusted annual cash
incentive award earned under the Company’s annual incentive or performance plan, to the extent paid
in U.S. dollars from the Company’s U.S. payroll.




          2.8. “Change in Control” shall have the meaning ascribed to such term in the Mylan
Inc. Amended and Restated 2003 Long-Term Incentive Plan as in effect at the time the deferral
election is made; provided, that a Change in Control shall be deemed to have occurred under
this Plan only if a change in the ownership or effective control of the Company or a change in the
ownership of a substantial portion of the assets of the Company shall also be deemed to have
occurred under Section 409A.




          2.9. “Code” shall mean the Internal Revenue Code of 1986, as amended.




          2.10. “Company” or “Mylan” shall mean Mylan Inc., a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania, or its successor or successors.




          2.11. “Compensation” shall have the meaning ascribed to such term in the Qualified
401(k) Plan; provided, however, that Compensation in excess of the limits imposed
by Section 401(a)(17) of the Code shall not be disregarded.




          2.12. “Deemed Investment Option” shall mean some or all of the investment options
designated by the Administrator for purposes of the Qualified 401(k) Plan, as may be changed from
time to time. Each Participant shall designate the Deemed Investment Options pursuant to which
deemed earnings (or losses) shall be credited to the Participant’s Account in accordance with
Article VI.




          2.13. “Deferral Limit” shall mean the dollar limitation on employee salary deferral
contributions in effect under Section 401(a)(17) of the Code with respect to a Plan Year and any
other applicable limits on includible compensation or amounts that can be allocated.




          2.14. “Election Form” shall mean the form, either paper or electronic, prescribed by
the Administrator on which a Participant specifies the amount of his or her



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Employee Deferral Contribution prior to the beginning of the Plan Year to which the Employee
Deferral Contributions apply.




          2.15. “Eligible Employee” shall mean an employee designated by the Administrator as
eligible to participate in the Plan. Initially, Eligible Employees are limited to employees who
receive remuneration that is paid in U.S. dollars from the Company’s U.S. payroll for personal
services rendered in the employment of the Company or any of its subsidiaries or affiliates and
whose total annual rate of Base Compensation and maximum incentive compensation at the time the
election is made is expected to exceed the indexed limit under Code Section 401(a)(17).
Notwithstanding the foregoing, the Administrator, in its sole discretion, may establish such other
eligibility criteria as it deems desirable from time to time.




          2.16. “Employee Deferral Contribution” shall mean that portion of Compensation as to
which a Participant has made an annual irrevocable election to defer receipt of amounts that may
have been deferred under the Qualified 401(k) Plan if not for the Deferral Limit.




          2.17. “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as
amended.




          2.18. “Matching Contribution” shall mean the matching contributions (if any) made
pursuant to Section 4.2 of the Qualified 401(k) Plan.




          2.19. “Non-Elective Contribution” shall have the meaning ascribed to such term in the
Qualified 401(k) Plan.




          2.20. Participant” shall mean an individual who is an Eligible Employee and who has
not ceased participation in this Plan in accordance with the terms of Article III hereof.




          2.21. “Plan” shall mean this Mylan 401(k) Restoration Plan.




          2.22. “Plan Year” shall have the meaning ascribed to such term in the Qualified 401(k)
Plan.




          2.23. “Qualified 401(k) Plan” shall mean the Mylan Profit Sharing 401(k) Plan, as such
plan may be amended from time to time.




          2.24. “Section 409A” shall mean Section 409A of the Code and the regulations and
guidance issued thereunder.




          2.25. “Separation from Service” shall mean a Participant’s separation from service
with the Company and/or its subsidiaries and affiliates which meets the requirements of Section
409A(a)(2)(A)(i) of the Code.




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          2.26. “Specified Employee” shall mean a Participant who is determined to be a
“specified employee” within the meaning of Section 409A.




          2.27. “Unforeseeable Emergency” shall have the meaning ascribed to such term in
Section 409A.




ARTICLE III

PARTICIPATION AND VESTING




          3.1. Participation. Participation in this Plan is limited to Eligible Employees. An
individual shall become eligible to elect to make an Employee Deferral Contribution for the first
Plan Year in which the Administrator determines he or she is expected to be an Eligible Employee.
A newly Eligible Employee may be eligible to participate after the beginning of the Plan Year in
accordance with Section 4.2.




          3.2. Cessation of Participation. A Participant who is not vested in his or her
Account and has a Separation from Service without a benefit under this Plan will cease
participation hereunder.




          3.3. Vesting. A Participant shall at all times be 100% vested in his or her Employee
Deferral Contribution. A Participant shall vest in his or her Matching Contributions and
Non-Elective Contributions, if any, under the Plan in accordance with the terms of the Qualified
401(k) Plan. Upon a Change in Control, the Participant will become immediately and 100% vested in
his or her Matching Contributions and Non-Elective Contributions.




ARTICLE IV

EMPLOYEE DEFERRAL CONTRIBUTIONS, MATCHING CONTRIBUTIONS

AND NON-ELECTIVE CONTRIBUTIONS




          4.1. Employee Deferral Contributions.




          (a) For each Plan Year, Eligible Employees shall be permitted to elect to make an Employee
Deferral Contribution to defer Base Compensation and/or Bonus Compensation. All Eligible Employees
shall be offered the opportunity to make two separate and distinct irrevocable elections; one
election may be made with respect to Base Compensation and the other may be made with respect to
Bonus Compensation. Any Eligible Employee who elects to make an Employee Deferral Contribution
must file a completed Election Form with the Administrator by December 31st of the year
preceding the year in which the services are performed for which the Compensation is paid (or such
other date established by the Administrator in accordance with Section 409A).




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          (b) Pursuant to the Election Form, each Eligible Employee may make these irrevocable elections
to defer under the Plan any whole percentage of his or her Compensation; provided, that an
Employee Deferral Contribution under the Plan shall not exceed any limits on the percentage of
Compensation eligible to be deferred on a pre-tax basis under the Qualified 401(k) Plan
(disregarding any deferral limits imposed by the Code). The percentage of Base Compensation
deferred by an Eligible Employee for a Plan Year will be deducted each pay period commencing when
the Eligible Employee’s Compensation exceeds the Code Section 401(a)(17) limit for the applicable
Plan Year. The percentage of Bonus Compensation deferred by an Eligible Employee for a Plan Year
will be deducted from his or her payment under the applicable incentive program when the Bonus
Compensation would have otherwise been paid, provided that the Eligible Employee’s Compensation
exceeds the Code Section 401(a)(17) limit for the applicable Plan Year at the time of such payment.




          (c) Notwithstanding subsection (b) above, the Administrator in its discretion may implement
rules and procedures from time to time that allow Participants: (1) to elect to defer Compensation
in amounts other than whole percentages, such as in whole dollar amounts, or (2) to specify a
dollar maximum that would limit their percentage deferral elections of Compensation.




          (d) To be effective, an Eligible Employee’s Election Form must set forth the percentage of
Compensation to be deferred in accordance with subsection (b) above (or an amount in accordance
with subsection (c)), and any other information that may be required by the Administrator from time
to time. An election shall be irrevocable once received and determined by the Administrator to be
properly completed. The Administrator may grant an extension of any election period or may permit
the complete revocation of an election, but such extension or revocation shall not permit an
election or revocation to be made after the latest time permissible for initial deferral elections
under Section 409A. Increases or decreases in the amount or percentage of Base Compensation or
Bonus Compensation a Participant elects to defer shall not be permitted once an election has become
irrevocable.




          4.2. Newly Eligible Employees. Notwithstanding anything to the contrary contained
herein, the Administrator, acting on behalf of the Company, may, in its discretion, permit an
employee who first becomes an Eligible Employee after the beginning of a Plan Year, and such
employee is not and was not otherwise eligible to participate in this or any other nonqualified
deferred compensation plan of the Company for the Plan Year that is required to be aggregated with
the Plan for purposes of Section 409A, to enroll in the Plan to defer Compensation for that Plan
Year by filing a completed and fully executed Election Form, in accordance with Section 4.1(d), as
soon as administratively practicable following the date the employee becomes an Eligible Employee
but, in any event, within thirty (30) days after such date. Notwithstanding the foregoing, any
election by an Eligible Employee to make an Employee Deferral Contribution pursuant to this Section
shall apply only with respect to Compensation to be earned for payroll cycles that begin after the date on which such Election Form is filed.



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For this purpose, with respect to
the Compensation attributable to any annual incentive, the election will be deemed to apply to the
portion of the annual incentive paid for services performed after the Election Form is filed, such
amount to be equal to the total amount of the annual incentive for the performance period
multiplied by the ratio of the number of days remaining in the performance period for the annual
incentive after the Election Form is filed over the total number of days in the performance period.




          4.3. Matching Contributions. The Account of each Eligible Employee who makes an
Employee Deferral Contribution for the Plan Year will be credited with a Matching Contribution
under this Plan equal to the Matching Contribution that would have been made in respect of such
Employee Deferral Contribution under the Qualified 401(k) Plan if not for the Deferral Limit.




          4.4. Non-Elective Contributions. Effective as of the Effective Date, and annually
thereafter, to the extent that the Company makes a Non-Elective Contribution under the Qualified
401(k) Plan to a Participant, such Participant’s Account shall be credited with a Non-Elective
Contribution in an amount equal to the difference between (A) the amount of the Non-Elective
Contribution the Participant would receive under the Qualified 401(k) Plan without regard to the
limits imposed by Section 401(a)(17) of the Code, and (B) the amount of the Non-Elective
Contribution the Participant actually received under the Qualified 401(k) Plan for such Plan Year.




          4.5. Termination as an Active Participant. An Eligible Employee who ceases to be an
employee (i) shall not be eligible to make any further Employee Deferral Contributions and (ii)
shall not be eligible to receive any further Matching Contributions. Notwithstanding the
foregoing, an Eligible Employee who is eligible to receive a Non-Elective Contribution under the
Qualified 401(k) Plan, will also be eligible to receive a Non-Elective Contribution pursuant to
Section 4.4.




ARTICLE V

DISTRIBUTIONS




          5.1. Distribution Date. Unless distributed earlier as provided in this Plan,
distributions from a Participant’s vested Account shall be made within sixty (60) days following
the Participant’s Separation from Service. Notwithstanding the above, if the Participant is
classified as a Specified Employee within the meaning of Section 409A at the time the individual
incurs a Separation from Service, then, to the extent necessary to avoid the imposition of
additional taxes, distributions from a Participant’s vested Account shall not be paid for six
months following the date of such Specified Employee’s Separation from Service. Any delayed
payments during this six-month period shall include any returns on Deemed Investment Options
credited thereon as described in Section 6.3.




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          5.2. Method of Payment. All distributions under this Plan shall be paid in cash in a
lump sum after applicable tax withholdings.




          5.3. Distributions on Death. In the event of a Participant’s death before his or her
Account has been distributed, distribution(s) shall be made to the Beneficiary in a single lump sum
cash payment within sixty (60) days after the date of death or as soon as administratively
feasible.




          5.4. Distributions on Unforeseeable Emergency. In the event of an Unforeseeable
Emergency, in accordance with the requirements of Section 409A, a Participant may request a
distribution of all or any vested portion of his or her Account.




ARTICLE VI

FUNDING AND INVESTMENTS




          6.1. Plan Unfunded. This Plan shall be unfunded and no trust is created by this
Plan. There will be no funding of any amounts to be paid pursuant to this Plan;
provided, however, that nothing herein shall prevent the Company from
establishing one or more grantor trusts from which benefits due under this Plan may be paid in
certain instances. All benefits shall be paid from the general assets of the Company and a
Participant (or his or her Beneficiary) shall have the rights of a general, unsecured creditor
against the Company for any distributions due hereunder.




          6.2. Participant’s Interest in Plan. A Participant has an interest only in the
benefits to be paid pursuant to this Plan. A Participant has no rights or interests in any
specific funds, stock or securities.




          6.3. Deemed Investment Options; Account Earnings or Losses. Deemed Investment
Options available under the Plan shall consist of some or all of the Designated Investment
Options under the Qualified 401(k) Plan that the Administrator designates from time to time as
the Deemed Investment Options. A Participant’s Account shall be credited with earnings and
gains (and shall be debited for expenses and losses) determined as if the amounts credited to
a Participant’s Account had actually been invested as directed by the Participant;
provided, however, that if the Participant does not affirmatively elect a
Deemed Investment Option, the Participant will be deemed to have elected the default
investment option that the Administrator has designated for this purpose. Notwithstanding
that the earnings and gains (or expenses and losses) credited (or debited) to Participants’
Account under the Deemed Investment Options are based upon the actual performance of the
investment funds designated by the Administrator, Mylan shall not be obligated to invest any
Employee Deferral Contributions, Matching Contributions, or Non-Elective Contributions, if
any, under this Plan, or any other amounts, in such portfolios or in any other investment
funds.




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          6.4. Changes in Deemed Investment Options. A Participant may change the Deemed
Investment Options to which amounts credited to a Participant’s Account are deemed to be
allocated on such basis as determined by the Administrator in its sole discretion.




ARTICLE VII

ADMINISTRATION AND INTERPRETATION




          7.1. Administration. The Administrator shall administer and manage the Plan and shall
have all powers necessary to accomplish that purpose, including (but not limited to) the following:





     (a) To exercise its discretionary authority to construe, interpret, and administer
this Plan;




     (b) To exercise its discretionary authority to make all decisions regarding
eligibility, participation and deferrals, to make allocations and determinations required
by this Plan, and to maintain records regarding Participants’ Accounts;




     (c) To compute and certify the amount and kinds of payments to Participants or their
Beneficiaries, and to determine the time and manner in which such payments are to be paid;




     (d) To authorize all disbursements by the Company pursuant to this Plan;




     (e) To maintain (or cause to be maintained) all the necessary records for
administration of this Plan;




     (f) To make and publish such rules for the regulation of this Plan as are not
inconsistent with the terms hereof;




     (g) To establish or to change the deemed investment options or arrangements under
Article VI;




     (h) To hire agents, accountants, actuaries, consultants and legal counsel to assist in
operating and administering the Plan; and




     (i) To authorize one or more of its number, or any agent, to execute or deliver any
instrument or to make any payment in its behalf.



          The Administrator’s decisions or determinations on matters under its authority shall be final
and conclusive on all parties.




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          7.2. Records and Reports. The Administrator or its designated record keeper shall
keep a record of proceedings and actions and shall maintain or cause to be maintained all such
books of account, records, and other data as shall be necessary for the proper administration of
the Plan. Such records shall contain all relevant data pertaining to individual Participants and
their rights under this Plan. The Administrator shall have the duty to carry into effect all
rights or benefits provided hereunder to the extent assets of the Company are properly available.




          7.3. Claims Procedure. If a claim for benefits or for participation under this Plan
is denied in whole or in part, a Participant will receive written notification. The notification
will include specific reasons for the denial, specific reference to pertinent provisions of this
Plan, a description of any additional material or information necessary to process the claim and
why such material or information is necessary, and an explanation of the claims review procedure.




          7.4. Review Procedure. Within ninety (90) days after the claim is denied, a
Participant (or his or her duly authorized representative) may file a written request with the
Administrator for a review of his or her denied claim. The Participant may review pertinent
documents that were used in processing his or her claim, submit pertinent documents, and address
issues and comments in writing to the Administrator. The Administrator will notify the Participant
of his or her final decision in writing. In his or her response, the Administrator will explain
the reason for the decision, with specific references to pertinent Plan provisions on which the
decision was based.




          7.5. Indemnification for Liability. The Company shall indemnify the Administrator
against any and all claims, losses, damages, expenses and liabilities arising from the
Administrator’s responsibilities in connection with the Plan, unless the same is determined to be
due to willful misconduct.




          7.6. Disclosure to Participants. Each Participant shall receive a copy of this Plan
and the Company will make available for inspection by any Participant or designated Beneficiary a
copy of the rules and regulations used by the Company in administering this Plan.




ARTICLE VIII

AMENDMENT, TERMINATION AND CONTINUATION




          8.1. Amendments. The Administrator shall have the right in its sole discretion to
amend this Plan in whole or in part at any time and in any manner, provided that such amendments do
not cause the Plan to fail to comply with Section 409A. No Plan amendment shall reduce the amount
credited to the Account of any Participant as of the date such amendment is adopted unless
consented to by such Participant. Any amendment shall be in writing and adopted by the
Administrator. All Participants and Beneficiaries shall be bound by such amendment.




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          8.2. Termination of Plan. The Company, acting by the Administrator or through its
Board of Directors, reserves the right to discontinue and terminate the Plan at any time, in whole
or in part, for any reason, provided that such termination is effected in compliance with Section
409A.




ARTICLE IX

MISCELLANEOUS PROVISIONS




          9.1. Right of the Company to Take Employment Actions. Participation in this Plan
shall not give any Participant the right to be retained in the Company’s employ (or any right or
interest in this Plan or any assets of the Company other than as herein provided). The Company
reserves the right to terminate the employment of any Participant without any liability for any
claim against the Company under this Plan, except for a claim for payment of deferrals as provided
herein.




          9.2. Unfunded Obligation of the Company. The benefits provided by this Plan shall be
unfunded. All amounts payable under this Plan to Participants shall be paid from the general
assets of the Company. Nothing contained in this Plan shall require the Company to set aside or
hold in trust any amounts or assets for the purpose of paying benefits to Participants. Neither a
Participant, Beneficiary, nor any other person shall have any property interest, legal or
equitable, in any specific asset of the Company. This Plan creates only a contractual obligation
on the part of the Company, and the Participant shall have the status of a general unsecured
creditor of the Company with respect to amounts of compensation deferred hereunder. Such a
Participant shall not have any preference or priority over, the rights of any other unsecured
general creditor of the Company.




          9.3. Other Plans. This Plan shall not affect the right of any Eligible Employee or
Participant to participate in and receive benefits under and in accordance with the provisions of
any other employee benefit plans which are now or hereafter maintained by the Company or any of its
subsidiaries and affiliates, unless the terms of such other employee benefit plan or plans
specifically provide otherwise or it would cause such other plan to violate a requirement for tax
favored treatment.




          9.4. Receipt or Release. Any payment to a Participant in accordance with the
provisions of this Plan shall, to the extent thereof, be in full satisfaction of all claims against
the Administrator, the Company and any of its subsidiaries and affiliates, and the Administrator
may require such Participant, as a condition precedent to such payment, to execute a receipt and
release to such effect (provided that, to the extent the Company and any of its subsidiaries or
affiliates, or the Administrator require a Participant to execute a release, the release
requirement shall be structured in a manner that complies with Section 409A).




          9.5. Successors and Assigns; Nonalienation of Benefits. This Plan shall inure to the
benefit of and is binding upon the parties hereto and their successors,



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heirs and assigns. A
Participant’s rights and interest under this Plan shall not be assigned or
transferred except as otherwise provided herein, and the Participant’s rights to benefit
payments under this Plan shall not be subject to alienation, pledge or garnishment by or on behalf
of creditors (including heirs, beneficiaries, or dependents) of the Participant or of a
Beneficiary.




          9.6. Right to Withhold. To the extent required by law in effect at the time a
distribution is made from this Plan, the Company, its affiliates or the agents of the foregoing
shall have the right to withhold or deduct from any benefit payments any taxes required to be
withheld by federal, state or local governments.




          9.7. Governing Law. This Plan shall be construed, administered, and governed in all
respects in accordance with applicable federal law and, to the extent not preempted by federal law,
in accordance with the laws of the Commonwealth of Pennsylvania (other than its laws relating to
choice of law). If any provisions of this instrument shall be held by a court of competent
jurisdiction to be invalid or unenforceable, the remaining provisions hereof shall continue to be
fully effective.




          9.8. Severability. If any provision of this Plan is held unenforceable, the remainder
of the Plan shall continue in full force and effect without regard to such unenforceable provision
and shall be applied as though the unenforceable provision were not contained in the Plan.




          9.9. Headings. The headings of the Articles and Sections of this Plan are for
reference only. In the event of a conflict between a heading and the contents of an Article or
Section, the contents of the Article or Section shall control.




          9.10. Gender, Tense and Examples. In this Plan, whenever the context so indicates,
the singular or plural number and the masculine, feminine, or neuter gender shall be deemed to
include the other. Whenever an example is provided or the text uses the term “including” followed
by a specific item or items, or there is a passage having a similar effect, such passage of the
Plan shall be construed as if the phrase “without limitation” followed such example or term (or
otherwise applied to such passage in a manner that avoids limitation on its breadth of
application).




          9.11. Limitation of Liability. Notwithstanding any provision herein to the contrary,
neither the Company nor any individual acting as employee or agent of the Company shall be liable
to any Participant, former Participant, Beneficiary, or any other person for any claim, loss,
liability or expense incurred in connection with this Plan, unless attributable to fraud or willful
misconduct on the part of the Company or any such agent of the Company.




          9.12. Section 409A. The Plan is intended to comply with the applicable requirements
of Section 409A, and shall be administered in accordance with Section 409A to the extent Section
409A applies to the Plan. Notwithstanding anything in the Plan to the contrary, elections to defer
Compensation, as applicable, to the Plan, and



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distributions
from the Plan, may only be made in a manner and upon an event permitted by Section 409A. To
the extent that any provision of the Plan would cause a conflict with the requirements of Section
409A, or would cause the administration of the Plan to fail to satisfy the requirements of Section
409A, such provision shall be deemed null and void to the extent permitted by applicable law.




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