þ | ANNUAL REPORT PURSUANT TO SECTION 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
A. | Full title of the plan and address of the plan, if different from that of the issuer named below: |
B. | Name of the issuer of the securities held pursuant to the plan and the address of its principal executive office: |
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Financial Statements: |
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Consent of Independent Registered Public Accounting Firm |
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EX-23 |
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December 31, | December 31, | |||||||
2009 | 2008 | |||||||
Assets |
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Investments At fair value |
$ | 12,451,321 | $ | 285,560 | ||||
Receivables |
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Due from broker for securities sold |
| 9,243,920 | ||||||
Employer contributions |
1,076,815 | 980,820 | ||||||
Employee contributions |
12,868 | 21,800 | ||||||
Total receivables |
1,089,683 | 10,246,540 | ||||||
Net assets available for benefits |
$ | 13,541,004 | $ | 10,532,100 | ||||
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Additions |
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Transfers |
$ | 551,592 | ||
Interest and dividends |
256,075 | |||
Employer contributions |
1,493,990 | |||
Employee contributions |
501,657 | |||
Net appreciation in fair value of investments |
731,758 | |||
Total additions |
3,535,072 | |||
Deductions |
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Administrative expenses |
39,107 | |||
Benefits paid to participants |
487,061 | |||
Total deductions |
526,168 | |||
Net increase |
3,008,904 | |||
Net assets available for benefits |
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Beginning of year |
10,532,100 | |||
End of year |
$ | 13,541,004 | ||
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1. | DESCRIPTION OF THE PLAN | |
General The Mylan Puerto Rico Profit Sharing Employee Savings Plan (the Plan) was initially a non-contributory defined contribution plan covering all regular employees of Mylan LLC, a Delaware limited liability company, and Mylan Caribe Inc., a Vermont corporation (collectively, the Company). Participants must be residents of Puerto Rico. On March 29, 2001, the Companys parent company, Mylan Inc., a Pennsylvania corporation (the Plan Sponsor), approved changes to amend and restate the Plan to, among other things, add a cash or deferred arrangement under Section 1165(e) of the Internal Revenue Code of Puerto Rico, provide for participant directed accounts and limit all distributions to the lump-sum form. These changes became effective April 1, 2001. The Plan, as amended and restated, is a defined contribution plan and is subject to the provisions of the Employee Retirement Income Security Act of 1974, as amended (ERISA). The following description of the Plan provides only general information. For a complete description of the provisions of the Plan, please refer to the Plan document. | ||
Contributions Each year, participants may contribute up to 50% of pre-tax annual compensation, as defined in the Plan, not to exceed $9,000 for 2009, the maximum deferral amount specified by Puerto Rico law. Participants may also contribute amounts representing distributions from other qualified defined benefit or contribution plans. Participants who are age 50 or older by the end of the Plan year are eligible to contribute an additional pre-tax catch-up contribution, up to the Puerto Rico law maximum of $1,000 for 2009. All contributions to the Plan are directed by the participants to specific assets, funds or other investments permitted under the Plan. Beginning January 2008, the Plan Sponsors common stock, which had been an investment option, was frozen for any new contributions or transfers from the other existing investment options. During fiscal year 2009, the Plan offered 17 mutual funds and four common/collective trusts. The Company contributes a matching contribution equal to 100% of the participants salary deferral contribution, up to 4% of the participants annual eligible compensation. In addition, the Company may contribute, at its sole discretion, an additional amount (Discretionary Contribution) to the Plan each fiscal year, to be allocated among the participants based on a uniform percentage of each participants annual compensation for that year. | ||
During 2008, Wachovia Retirement Services was the recordkeeper of the Plan. Effective January 1, 2009, Bank of America, N.A. (Bank of America, formerly Merrill Lynch) (the Recordkeeper) became recordkeeper of the Plan. On December 27, 2008, the mutual funds, common/collective trust fund, the Companys common stock and fixed income fund held by the Plan were liquidated and transferred to Bank of America in preparation for this change in recordkeeper. Assets totaling $9.2 million from the Plan were in-transit on December 31, 2008 and are included in the due from broker for securities sold receivable on the Statements of Net Assets Available for Benefits as of December 31, 2008. The transfer was finalized on January 2, 2009. Participant assets were transferred to investment options that are reasonably similar to the investment options that were offered by the prior recordkeeper and that have comparable investment styles, objectives and risk and return characteristics. As these assets were in-transit on December 31, 2008, they are included in the due from broker for securities sold receivable on the Statements of Net Assets Available for Benefits as of December 31, 2008. The Plans assets are held by Banco Popular, the trustee. | ||
Participant Accounts Each participants account is funded with the participants contribution and allocations of the Companys contributions and Plan earnings or losses. Allocations are based on the participant account balances or compensation, as defined by the Plan. The participant is entitled to the vested portion of their account. | ||
Vesting Participants are vested immediately in their contributions and Company matching contributions plus actual earnings. Vesting in the Companys Discretionary Contribution is based on years of continuous service. Any Discretionary Contributions given by the Company to participants new to the Plan in 2009 will vest 100% after three years of credited service. Any Discretionary Contributions given by the Company to individuals participating in the plan prior to January 1, 2009 will be 20% vested after two years of continuous service and 100% vested after three years of continuous service. | ||
Additionally, all participants become fully vested at age 65. | ||
Loans to Participants Participants may borrow from their fund accounts a minimum of $1,000 up to a maximum of $50,000, or 50% of their vested account balance, whichever is lower. Loan transactions are treated as transfers between the investment fund and the loan fund. The maximum term of a loan permitted is 15 years for primary residence loans and five years for other loans. |
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The loans are secured by the balance in the participants account and bear interest at a rate equal to the prime rate plus 1%, as established by the Recordkeeper. Principal and interest are paid ratably through bi-weekly payroll deductions. | ||
Payment of Benefits Upon termination of service, a participant or beneficiary may elect to receive a lump-sum amount equal to the value of the participants vested interest in his or her account or choose to leave their balance in the account for withdrawal at a later point in time. Benefits are recorded by the Plan when paid. The Plans minimum automatic distribution of a terminated participants account is $1,000. | ||
Forfeitures Company Discretionary Contributions that are not vested upon termination of employment are forfeited and may be used to reduce the Companys contributions for the year in which the forfeiture occurs. For the fiscal year ended December 31, 2009 and 2008, $2,253 and $29,188 of forfeitures were used to offset employer contributions. | ||
2. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES | |
Basis of Presentation The financial statements of the Plan have been prepared on the accrual basis of accounting and in conformity with accounting principles generally accepted in the United States of America. | ||
Use of Estimates The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires the Plan Sponsor to make estimates and assumptions that could affect the reported amounts of assets and liabilities and changes therein. Actual results could differ from those estimates. | ||
Risks and Uncertainties The Plan utilizes various investment instruments. Investment securities, in general, are subject to various risks, such as interest rate, credit, and overall market volatility. Due to the level of risk associated with certain investment securities, it is reasonably possible that changes in the values of investment securities will occur in the near term and that such changes could materially affect participant account balances and the amounts reported in the financial statements. | ||
Investment Valuation and Income Recognition The Plan investments are stated at fair value. Shares of mutual funds and common stock are valued at quoted closing market prices, which, for mutual funds, represent the Net Asset Value (NAV) of shares held by the Plan at the end of the fiscal year. Money market funds and the common/collective trust funds are stated at fair value, which approximates cost plus accumulated interest earnings less distributions to date. | ||
Purchases and sales of securities are recorded on a trade-date basis. Dividends are recorded on the ex-dividend date. Loans to participants are valued at amortized cost, which approximates fair value. | ||
Administrative Expenses All mutual funds incur expenses that reduce earnings in the fund and are reflected in the daily NAV. The amount of these expenses, stated as a percentage of assets, is called an expense ratio. The NAVs for the mutual funds are listed publicly, and the same NAV applies whether the mutual fund is purchased on the open market or through the Plan. Expense ratios charged by mutual funds cover costs relating to investing, such as the mutual fund managers asset management fees and costs related to administration of the fund. Examples of administrative costs include issuing quarterly statements, operating a service center and having toll-free numbers available for the participants. Expenses incurred by the mutual funds are netted against earnings of the respective funds in the Statement of Changes in Net Assets Available for Benefits. | ||
Other administrative expenses, including trustee, legal, auditing and other fees, are paid by the Company and are not considered to be expenses of the Plan. | ||
3. | INVESTMENTS | |
Fair value is based on the price that would be received from the sale of an identical asset or paid to transfer an identical liability in an orderly transaction between market participants at the measurement date. In order to increase consistency and comparability in fair value measurements, a fair value hierarchy has been established that prioritizes observable and unobservable inputs used to measure fair value into three broad levels, which are described below: |
Level 1: Quoted prices (unadjusted) in active markets that are accessible at the measurement date for assets or liabilities. The fair value hierarchy gives the highest priority to Level 1 inputs. | |||
Level 2: Observable market-based inputs other than quoted prices in active markets for identical assets or liabilities. |
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Level 3: Unobservable inputs are used when little or no market data is available. The fair value hierarchy gives the lowest priority to Level 3 inputs. |
In determining fair value, the Company utilizes valuation techniques that maximize the use of observable inputs and minimize the use of unobservable inputs to the extent possible, as well as considers counterparty credit risk in its assessment of fair value. | ||
Financial assets and liabilities carried at fair value are classified in the table below in one of the three categories described above: | ||
Financial Assets |
December 31, 2009 | ||||||||||||||||
Level 1 | Level 2 | Level 3 | Total | |||||||||||||
Common/Collective Trust: |
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Stable Value |
$ | | $ | 5,509,179 | $ | | $ | 5,509,179 | ||||||||
Index |
| 624,103 | | 624,103 | ||||||||||||
Total Common/Collective Trust |
| 6,133,282 | | 6,133,282 | ||||||||||||
Mutual Funds: |
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Growth |
1,130,635 | | | 1,130,635 | ||||||||||||
Value |
961,608 | | | 961,608 | ||||||||||||
Balanced |
226,519 | | | 226,519 | ||||||||||||
Fixed Income |
2,033,154 | | | 2,033,154 | ||||||||||||
Total Mutual Funds |
4,351,916 | | | 4,351,916 | ||||||||||||
Common stock |
727,875 | | | 727,875 | ||||||||||||
Participant loan fund |
| 1,237,798 | | 1,237,798 | ||||||||||||
Total assets at fair value |
$ | 5,079,791 | $ | 7,371,080 | $ | | $ | 12,450,871 | ||||||||
December 31, 2008 | ||||||||||||||||
Level 1 | Level 2 | Level 3 | Total | |||||||||||||
Participant loan fund |
$ | | $ | 285,560 | $ | | $ | 285,560 | ||||||||
Total assets at fair value |
$ | | $ | 285,560 | $ | | $ | 285,560 | ||||||||
At December 31, 2009 and 2008, there were no liabilities held by the Plan. | ||
Below is a summary of valuation techniques for Level 1 financial assets: |
| Mutual funds valued at the net asset value of the shares held by the Plan at year-end. The net asset value is a quoted price in an active market. | ||
| Companys common stock valued at the closing price reported on the active market on which the individual securities are traded. |
Below is a summary of valuation techniques for Level 2 financial assets: |
| Common/collective trust funds stated at fair value based on the fair market value of the underlying investments. The Plan invests in the following four collective funds: the Merrill Lynch Mid Cap Index Trust Tier II; the Merrill Lynch Equity Index Trust Tier 10; the Merrill Lynch International Index Trust Tier II; and the Merrill Lynch Retirement Preservation Trust. These funds invest in a diversified pool of high quality bonds and other short-term investments, together with book value contracts and traditional insurance contracts, of varying maturity, size and yield. |
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| Participant loan fund valued at amortized cost, which approximates fair value. |
The Merrill Lynch Retirement Preservation Trust (the stable value fund) is a stable value fund that invests primarily in a broadly diversified portfolio of Guaranteed Investment Contracts and in wrapped portfolios of high-quality money-market securities. This is a collective trust that seeks to maintain a $1 net asset value per share, although achievement of that objective cannot be assured. Participants may ordinarily direct the withdrawal or transfer of all or a portion of their investment at contract value. Contract value represents contributions made to the stable value fund, plus earnings, less participant withdrawals and administrative expenses. |
The average yields earned by the Plan on its investment in the stable value fund for the year ended December 31, 2009 are as follows: |
Average yields: |
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Based on annualized earnings |
2.35 | % | ||
Based on interest rate credited to participants |
2.57 | % |
Certain events may limit the ability of the stable value fund to transact at contract value. Such events include: complete or partial plan termination or merger with another plan; failure of the Plan or its trust to qualify for exemption from federal income taxes or any required prohibited transaction exemption under ERISA; transfer of assets from the stable value fund directly into a competing investment option; or any communication given to Plan participants designed to influence a participant not to invest in the stable value fund or to transfer assets out of the stable value fund. Plan management believes that the occurrence of events that would cause the Fund to transact at less than contract value is not probable. | ||
The following presents investments that represent 5% or more of the Plans net assets available for benefits at December 31: |
2009 | 2008 | |||||||
Merrill Lynch Retirement Preservation Trust |
$ | 5,509,179 | N/A | |||||
PIMCO Total Return Fund |
1,995,901 | N/A | ||||||
Mylan Inc. Common Stock |
727,875 | $ | 508,411 |
During 2009, the Plans investments (including gains and losses on investments bought and sold, as well as held during the year) appreciated (depreciated) in value as follows: |
Common/collective trust |
$ | 127,703 | ||
Mutual funds |
618,847 | |||
Companys common stock |
(14,792 | ) | ||
Net appreciation in fair value of investments |
$ | 731,758 | ||
4. | NET ASSET VALUE (NAV) PER SHARE | |
In accordance with Accounting Standard Update No. 2009-12, the Plan expanded its disclosures to include the category, fair value, redemption frequency, and redemption notice period for those assets whose fair value is estimated using the NAV per share as of December 31, 2009. | ||
The following table for December 31, 2009, sets forth a summary of the Plans investments with a reported NAV. |
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Fair Value Estimated Using Net Asset Value per Share | ||||||||||||
December 31, 2009 | ||||||||||||
Redemption | ||||||||||||
Redemption | Notice | |||||||||||
Investment | Fair Value * | Frequency | Period | |||||||||
Merrill Lynch Equity Index Trust Tier 10 (i) |
$ | 568,104 | Immediate | None | ||||||||
Merrill Lynch International Index Trust Tier II (ii) |
24,281 | Immediate | None | |||||||||
Merrill Lynch Mid Cap Index Trust Tier II (iii) |
31,718 | Immediate | None | |||||||||
Total |
$ | 624,103 | ||||||||||
* | The fair values of the investments have been estimated using the NAV of the investment. | |
(i) | The Trust seeks to provide investment results that, before expenses, replicate the total return of the Standard and Poors (S&P) 500 Index. | |
(ii) | The Trust seeks to provide investment results that, before expenses, replicate the total return of the Morgan Stanley Capital International EAFE (Europe, Australasia and Far East) Index. | |
(iii) | The Trust seeks to provide investment results that, before expenses, replicate the total return of the S&P 400 Index. |
5. | PLAN TERMINATION | |
Although it has not expressed any intent to do so, the Plan Sponsor has the right under the Plan to discontinue its contributions at any time and to terminate the Plan subject to the provisions of ERISA. In the event of Plan termination, participants will become 100% vested in their accounts. | ||
6. | TAX STATUS | |
The Secretary of the Treasury for the Commonwealth of Puerto Rico has ruled that the Mylan Inc. Employees Profit Sharing Plan, the predecessor plan, qualified for tax exemption under the Internal Revenue Code of Puerto Rico (the Puerto Rico Code), as amended, effective April 1, 1989. In April 2003, the Plan obtained its determination letter from Treasury of the Commonwealth of Puerto Rico stating that the Plan, as then designed, met the requirements of Section 1165(a) of the Puerto Rico Internal Revenue Code of 1994, as amended and that the trust established thereunder was entitled to exemption from local income taxes. The Plan has been amended since receiving the determination letter. However, the Company and Plan management believe that the Plan is currently designed and operated in compliance with the applicable requirements of the Puerto Rico Code and that the Plan and related trust continue to be tax-exempt. Therefore, no provision for income taxes has been included in the Plans financial statements. | ||
7. | RELATED-PARTY TRANSACTIONS | |
Certain Plan investments are shares of the Companys common stock. The Company is the Plan Sponsor and therefore qualifies as a related party. At December 31, 2009 and 2008, the Plan held an investment of 39,494 and 51,407 shares of the Companys common stock. The fair value of the Companys common stock held by the fund at December 31, 2009 and 2008 were $727,875 and $508,411. During the year ended December 31, 2009, the Plan purchased 1,388 shares of the Companys common stock with a market value of $13,823, sold 14,899 shares of the Companys common stock with proceeds of $260,228 and received 1,598 in-kind shares with a market value of $18,179. During the year ended December 31, 2008, the Plan had no purchases of the Companys common stock and sold 7,798 shares of the Companys common stock with proceeds of $92,174. On December 27, 2008, the Companys common stock held by the Plan was liquidated and transferred to Merrill Lynch in preparation for the change in the custodian and recordkeeper. The transfer was finalized on January 2, 2009. As these assets were in-transit on December 31, 2008, they are included in the due from broker receivable on the Statements of Net Assets Available for Benefits. | ||
Certain Plan investments consist of investments in funds administered by the Recordkeeper of the Plan, and therefore, these transactions qualify as exempt party-in-interest transactions. |
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(B) Identity of Issue, | |||||||||||
Borrower, Lessor, or | (C) Description of Investment Including Maturity Date, | (E) Current | |||||||||
(A) | Similar Party | Rate of Interest, Collateral, Par, or Maturity Value | Value | ||||||||
* | Merrill Lynch | Merrill Lynch Retirement Preservation Trust |
$ | 5,509,179 | |||||||
PIMCO | PIMCO Total Return Fund |
1,995,901 | |||||||||
* | Mylan Inc. | Common Stock |
727,875 | ||||||||
Eaton Vance | Eaton Vance Large Cap Value Fund |
643,228 | |||||||||
* | Merrill Lynch | Merrill Lynch Equity Index Trust Tier 10 |
568,104 | ||||||||
MFS Instl | MFS Institutional Equity Fund |
543,448 | |||||||||
Columbia | Columbia Small Cap Value Fund I |
318,380 | |||||||||
AllianceBernstein | AllianceBernstein Small Cap Growth Fund |
304,501 | |||||||||
Rainier | Rainier Large Cap Equity Portfolio Fund |
282,686 | |||||||||
JP Morgan | JP Morgan Smart Retirement 2045 Fund |
55,224 | |||||||||
JP Morgan | JP Morgan Smart Retirement 2040 Fund |
46,793 | |||||||||
Vanguard | Vanguard Total Bond Market Index Fund |
37,253 | |||||||||
JP Morgan | JP Morgan Smart Retirement 2030 Fund |
34,331 | |||||||||
JP Morgan | JP Morgan Smart Retirement 2025 Fund |
32,811 | |||||||||
* | Merrill Lynch | Merrill Lynch Mid Cap Index Trust Tier II |
31,718 | ||||||||
JP Morgan | JP Morgan Smart Retirement 2035 Fund |
26,256 | |||||||||
* | Merrill Lynch | Merrill Lynch International Index Trust Tier II |
24,281 | ||||||||
JP Morgan | JP Morgan Smart Retirement 2050 Fund |
13,620 | |||||||||
JP Morgan | JP Morgan Smart Retirement 2020 Fund |
11,376 | |||||||||
JP Morgan | JP Morgan Smart Retirement 2015 Fund |
5,659 | |||||||||
* | Merrill Lynch | Merrill Lynch Cash and Cash Equivalents, Pending Settlement Fund |
450 | ||||||||
JP Morgan | JP Morgan Smart Retirement Income |
347 | |||||||||
JP Morgan | JP Morgan Smart Retirement 2010 Fund |
102 | |||||||||
* | Participant Loan Fund | Maturity dates from January 31, 2010 through November 12, 2024 and
interest rates ranging from 4.25% to 9.25% |
1,237,798 | ||||||||
Total investments |
$ | 12,451,321 | |||||||||
* | Party-in-interest |
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MYLAN PUERTO RICO PROFIT SHARING EMPLOYEE SAVINGS PLAN |
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/s/ Patricia A. Lang | ||||
Patricia A. Lang, Plan Administrator | ||||
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