Mylan
`
`Seeing
`is believing
`1000 Whin Bo*vrd
`Canmtbap, PA 15317 USA
`Phan
`724.514.1660
`Fat
`724.514.1870
`manta',
`Web
`
`February 12, 2015
`
`Office of Chief Counsel
`Division of Corporation Finance
`Securities and Exchange Commission
`100 F Street, N.E.
`Washington, D.C. 20549
`
`Re: Mylan Inc. and New Moon B.V.
`
`Dear Sir or Madam:
`
`I ant writing on behalf of Mylan Inc., a Pennsylvania corporation
`( "Mylan"), and New Moon B.V., a private limited liability company (besloten
`vennootschap met beperkte aansprakelijkheid) organized and existing under the laws of
`the Netherlands ( "New Mylan"), to request advice of the staff of the Office of Chief
`Counsel of the Division of Corporation Finance (the "Staff') of the Securities and
`Exchange Commission (the "Commission ") with respect to a number of succession -
`related matters under the Securities Act of 1933, as amended (the "Securities Act "), and
`the Securities Exchange Act of 1934, as amended (the "Exchange Act "). The matters
`relate to the proposed transaction (the "Transaction ") in which Mylan and the non -U.S.
`developed markets specialty and branded generics business (the `Business ") of Abbott
`Laboratories ( "Abbott ") will become held by Ncw Mylan, a new holding company
`organized in the Netherlands that will be converted into a public limited liability company
`(naamloze vennootschap) and renamed Mylan N.V. at or prior to the completion of the
`Transaction.
`
`Background Information
`
`1.
`
`Mylan
`
`Mylan is a publicly held Pennsylvania corporation and a leading global
`pharmaceutical company. Mylan, through its subsidiaries, develops, licenses,
`manufactures, markets and distributes generic, branded generic and specialty
`pharmaceuticals. In addition to organic growth, Mylan evaluates and, where appropriate,
`executes on acquisitions as a strategic part of its future growth. Mylan prioritizes
`opportunities that complement and further diversify its platform, whether such
`opportunities are effected through asset or stock purchases, joint ventures, licenses, or
`acquisitions of other companies.
`
`The shares of Mylan common stock, par value $0.50 per share ( "Mylan
`common stock "), are registered under Section 12(b) of the Exchange Act and are listed on
`
`NCI Exhibit 2007
`Page 1 of 20
`
`NCI Exhibit 2047
`
`

`
`2
`
`NASDAQ under the symbol "MYL ". The authorized capital stock of Mylan consists of (i)
`1,500,000,000 shares of Mylan common stock and (ii) 5,000,000 shares of Mylan
`preferred stock, par value $0.50 per share ( "Mylan preferred stock "). As of September 30,
`2014, 545,732,255 shares of Mylan common stock were issued, of which 171,571,414
`shares were held by Mylan as treasury shares, As of September 30, 2014, no shares of
`Mylan preferred stock were outstanding.
`
`Mylan is a large accelerated filer under Exchange Act Rule 12b -2. Mylan
`common stock and other employee benefit plan interests of Mylan are registered on Forms
`S -8 for distribution pursuant to Mylan's Amended and Restated 2003 Long -Term
`Incentive Plan (the "Mylan Incentive Plan"). Under the Mylan Incentive Plan, 55,300,000
`shares of Mylan common stock are reserved for issuance to key employees, consultants,
`independent contractors and non -employee directors of Mylan through a variety of
`incentive awards, including: stock options, stock appreciation rights, restricted shares and
`units, performance awards, and other stock -based awards. As of September 30, 2014,
`20,868,419 shares of Mylan common stock were subject to outstanding awards, whether
`or not vested, under the Mylan Incentive Plan. Mylan currently maintains two effective
`registration statements on Form S -8 (Registration Statement Nos. 333 -186933 and 333-
`111076) pertaining to the Mylan Incentive Plan.
`
`As of September 30, 2014, Mylan had approximately $7.7 billion in
`outstanding long -term debt securities issued under various series of notes (collectively, the
`"Mylan Debt"): None of the Mylan Debt was registered or required to be registered
`pursuant to Section 12 of the Exchange Act.
`
`' Specifically, as of September 30, 2014, Mylan had outstanding the following debt
`securities: $499.2 million of 1.800% senior notes due 2016 (the "1.800% 2016 Notes "); $499.8 million of
`1.350% senior notes due 2016 (the "1.350% 2016 Notes "); $649.0 million of 2.600% senior notes due 2018
`(the "2.600 %2018 Notes "); $808.6 million of 6.000% senior notes due 2018 (the "6.000% 2018 Notes ");
`$499.0 million of 2.550% senior notes due 2019 (the "2019 Notes "); $1,010.9 million of 7.875% senior
`notes due 2020 (the "2020 Notes "); $761.9 million of 3.125;ßo senior notes due 2023 (the "3.125% 2023
`Notes "); $498.2 million of 4.200% senior notes due 2023 (the "4.200 %2023 Notes "); $496.9 million of
`5A00% senior notes due 2043 (the "2043 Notes "); and $574.0 million (net debt carrying cost of $1,933.4
`million) of cash convertible notes due 2015 (the "Cash Convertible Notes "). The 1.800 %2016 Notes and the
`2,600% 2018 Notes were initially sold in a private offering exempt from the registration requirements of the
`Securities Act to qualified institutional buyers in accordance with Rule 144A and to persons outside of the
`United States pursuant to Regulation S under the Securities Act and were subsequently exchanged for
`registered 1.800 %2016 Notes and 2.600% 2018 Notes, respectively, in an exchange offer pursuant to a
`registration statement on Form S -4 (Registration Statement No. 333 -193062). The 1.350 %2016 Notes, the
`2019 Notes, the 4.200% 2023 Notes and the 2043 Notes were issued in offerings made pursuant to Mylan's
`effective registration statement on Form S -3 (Registration Statement No. 333 -189297) and, collectively with
`the 1.800% 2016 Notes and the 2.600% 2018 Notes, are referred to herein as the "Mylan l'ublic Debt ". The
`6.000% 2018 Notes, the 2020 Notes and the 3.125% 2023 Notes were issued in private offerings exempt
`from the registration requirements of the Securities Act to qualified institutional buyers in accordance with
`Rule 144A and to persons outside of the United States pursuant to Regulation S under the Securities Act. On
`November 17, 2014, Mylan redeemed all of the outstanding 6.000% 2018 Notes. The Cash Convertible
`Notes were issued in a private offering exempt from the registration requirements of the Securities Act to
`qualified institutional buyers in accordance with Rule 144A under the Securities Act. Following completion
`of the Transaction, the conversion price of the Cash Convertible Notes will be based upon the price of New
`Mylan ordinary shares rather than the price of Mylan common stock.
`
`NCI Exhibit 2007
`Page 2 of 20
`
`

`
`3
`
`Mylan's reporting obligations under Section 15(d) of the Exchange Act
`with respect to the Mylan Public Debt have been suspended due to the registration of the
`shares of Mylan common stock under Section 12 of the Exchange Act. When Mylan
`terminates such Section 12 registration, its reporting obligations under Section 15(d) of the
`Exchange Act will be revived. The shares of Mylan common stock and the Mylan Public
`Debt constitute the only classes of securities with respect to which Mylan has a reporting
`obligation under the Exchange Act. Mylan has been a reporting company under the
`Exchange Act for over 40 years, is current in all of its reporting obligations thereunder and
`is a well -known seasoned issuer as defined by Rule 405 under the Securities Act.
`
`Mylan and New Mylan represent that, upon completion of the Transaction,
`Mylan intends to (i) cause NASDAQ to file a Form 25 with the Commission to deregister
`the shares of Mylan common stock under Section 12 of the Exchange Act and (ii) file a
`Form 15 with the Commission to immediately suspend its reporting obligations under
`Section 15(d) and 12(g) of the Exchange Act with respect to the shares of Mylan common
`stock. Mylan and New Mylan further represent that Mylan will comply with its reporting
`obligations under the Exchange Act with respect to Mylan's common stock until the filing
`of such Form 15. After the closing of the Transaction, New Mylan, for the reasons
`discussed below and subject to confirmation by the Staff, will be considered a successor to
`Mylan under Rule 12(g) -3(a) of the Exchange Act. New Mylan's ordinary shares will be
`listed on NASDAQ under the ticker symbol "MYL" and therefore will be registered under
`Section 12(b) of the Exchange Act. Accordingly, New Mylan will be subject to the
`reporting requirements under Section 13(a) of the Exchange Act,
`
`The indentures governing the Mylan Public Debt have each been qualified
`under the Trust Indenture Act of 1939, as amended. No Mylan Debt is or will be listed on
`any securities exchange and no series of Mylan Debt is currently guaranteed. The
`indentures governing the Mylan Debt do not require New Mylan to assume Mylan's
`obligations under the indentures or with respect to any of the Mylan Debt, and do not
`require any supplemental indenture in connection with the consummation of the
`Transaction.
`
`Mylan and New Mylan anticipate that, following the Transaction, (i) New
`Mylan will become a guarantor of each series of outstanding Mylan Debt and (ii)
`following consent solicitations, which Mylan and New Mylan intend to seek prior to
`March 31, 2015, no Mylan Debt nor documents related thereto will require Mylan to
`submit, provide, or file reports under the Exchange Act with the Commission (or the
`indentures' trustee) with respect to any series of the Mylan Debt. The anticipated consent
`solicitations will ask holders of each series of Mylan Debt to amend the reporting
`covenants in each related indenture so that, following the consummation of the
`Transaction, reports submitted, provided, or filed with the SEC by New Mylan will satisfy
`Mylan's obligations to provide reports to the holders pursuant to such reporting covenants.
`Following the actions and events described in the prior two sentences, Mylan intends to
`avail itself of the exemption provided by Rule 12h -5 under the Exchange Act, exempting
`Mylan from the requirements of Section 13(a) and 15(d) of the Exchange Act with respect
`to each series of Mylan Public Debt. Accordingly, Mylan and New Mylan intend to
`comply with the applicable requirements of Rule 3 -10 under Regulation S -X, including
`
`NCI Exhibit 2007
`Page 3 of 20
`
`

`
`4
`
`the requirement that New Mylan's annual and quarterly reports contain the condensed
`consolidating financial information required by Rule 3- 10(c). As a result, Mylan and New
`Mylan anticipate that, beginning with the quarter ended March 31, 2015, Mylan will be
`exempt from its Exchange Act reporting obligations and Rule 3 -10 of Regulation S -X will
`apply to the consolidated financial statements of New Mylan.
`
`2.
`
`The Business
`
`The Business constitutes the developed markets specialty and branded
`genetics pharmaceuticals business of Abbott, which is a global healthcare company. The
`Business operates in Canada, Japan, Australia, New Zealand, and Europe; Abbott is
`retaining its specialty and branded generics pharmaceuticals businesses in countries
`outside of these territories. The Business includes manufacturing facilities in France and
`Japan, while Abbott is retaining all its other manufacturing facilities, including facilities in
`Canada, Germany, and the Netherlands. The Business's product line includes a variety of
`specialty and branded generic pharmaceuticals that cover a broad spectrum of therapeutic
`categories in an extensive array of dosage forms and delivery systems. It is not reported as
`a separate financial reporting segment by Abbott.
`
`3.
`
`New Mylan
`
`New Mylan is a private limited liability company (besloten vennootschap
`met beperkte aansprakelijkheitl) organized and existing under the laws of the Netherlands,
`with its corporate seat (statutaire zetel) in Amsterdam, Netherlands. New Mylan was
`formed on July 7, 2014 for the purpose of holding the Business and Mylan following
`consummation of the Transaction. To date, New Mylan has not conducted any activities
`other than those incidental to its formation, the execution and performance of the Business
`Transfer Agreement (defined below), the Transaction, and filings required to be made
`under applicable laws, including the U.S. securities laws, the laws of the Netherlands, the
`laws of the United Kingdom, and antitrust and competition laws in connection with the
`Transaction. At or prior to the consummation of the Transaction, New Mylan will be
`converted into a public limited liability company (naamloze vennootschap) and renamed
`"Mylan N.V. ". Following the Merger (as defined below), Mylan will be an indirect
`wholly -owned subsidiary of New Mylan. As of the date of this letter, New Mylan has one
`ordinary share issued and outstanding with a nominal value of 1.00, held indirectly by
`Mylan. In connection with the consummation of the Transaction, the nominal value per
`New Mylan ordinary share will be reduced to £0.01.
`
`4.
`
`Transaction Overview
`
`On November 4, 2014, Mylan entered into the Amended and Restated
`Business Transfer Agreement and Plan of Merger (the "Business Transfer Agreement ")
`with New Mylan, Moon of PA Inc., a wholly -owned subsidiary of New Mylan ( "Merger
`Sub "), and Abbott. To facilitate the Transaction, the Business is being carved out of
`Abbott. Currently, the Business operates as a business of Abbott with its principal assets
`held by various subsidiaries of Abbott. Pursuant to the Business Transfer Agreement,
`Mylan and Abbott agreed on a master reorganization plan that sets forth the steps required
`
`NCI Exhibit 2007
`Page 4 of 20
`
`

`
`5
`
`for the reorganization of the Business. Prior to the closing of the Transaction, in
`accordance with the terms of the Business Transfer Agreement and the reorganization
`plan, Abbott will transfer the assets, liabilities and employees of the Business to certain
`Abbott subsidiaries and any non -Business assets, liabilities and employees out of certain
`other Abbott subsidiaries (such Abbott subsidiaries holding the Business following these
`transfers referred to as the "Transferred Companies "). At the closing of the Transaction,
`the shares of the Transferred Companies and certain intellectual property assets will be
`transferred to New Mylan (the "Business Transfer "). As consideration for the Business
`Transfer, certain subsidiaries of Abbott will receive 110,000,000 New Mylan ordinary
`shares, representing approximately 22% of the outstanding New Mylan ordinary shares
`immediately following the consummation of the Transaction. Mylan will be the acquiror
`in the Transaction for accounting purposes
`
`Following the Business Transfer, Merger Sub will merge with and into
`Mylan, with Mylan surviving as a wholly -owned indirect subsidiary of New Mylan (the
`"Merger'). At the effective time of the Merger, (i) each then outstanding share of Mylan
`common stock will be cancelled and automatically converted into and become the right to
`receive one New Mylan ordinary share; (ii) each then outstanding Mylan stock option,
`stock appreciation right, restricted stock unit and performance -based restricted stock unit
`granted prior to December 21, 2012 (the effective date of Mylan's change from single -
`trigger to double -trigger vesting upon a "change in control ") will become fully vested,
`with such stock options and stock appreciation rights becoming exercisable into New
`Mylan ordinary shares and restricted stock units and performance -based restricted stock
`units being settled in New Mylan ordinary shares; and (iii) each then outstanding Mylan
`stock option, stock appreciation right, restricted stock unit and performance -based
`restricted stock unit granted on or after December 21, 2012 (the effective date of Mylan's
`change from single -trigger to double -trigger vesting upon a "change in control ") will be
`converted into a stock option, stock appreciation right, restricted stock unit or
`performance -based restricted stock unit, as applicable, denominated in New Mylan
`ordinary shares, which award will be subject to the same number of New Mylan ordinary
`shares and the same terms and conditions (including vesting and other lapse restrictions)
`as were applicable to the Mylan equity-based award in respect of which it was issued
`immediately prior to the effective time of the Merger. The exchange of shares of Mylan
`common stock for New Mylan ordinary shares will be a taxable transaction for Mylan
`shareholders. The former Mylan shareholders will own approximately 78% of the
`outstanding New Mylan ordinary shares immediately following the consummation of the
`Transaction. The New Mylan ordinary shares will be listed on NASDAQ under Mylan's
`symbol, "MYL ".
`cu
`
`The diagrams attached as Exhibit A illustrate in simplified ternis the
`structure of New Mylan, Mylan, and the Business prior to the consummation of the
`Transaction and the structure of New Mylan following the consummation of the
`Transaction.
`
`Information to be Available Concerning the Transaction, New Mylan, Mylan, and
`the Business
`
`NCI Exhibit 2007
`Page 5 of 20
`
`

`
`6
`
`As a result of the legal form of the Transaction, (a) New Mylan filed a
`Registration Statement on Form S-4 with the Commission (the "Registration Statement "),
`including therein as a prospectus a proxy statement of Mylan (the "Proxy Statement ").
`The Registration Statement was declared effective by the Commission on December 23,
`2014, and, on December 24, 2014, Mylan filed the definitive Proxy Statement included in
`the Registration Statement with the Commission with respect to the solicitation of proxies
`from Mylan shareholders for the approval of the Business'I'ransfer Agreement.
`
`The Registration Statement contains or, in the case of Mylan, incorporates
`by reference, extensive and detailed descriptions of the businesses of Mylan and the
`Business, a detailed description of the Transaction, historical financial statements and
`information for Mylan and the Business (including selected financial data, management's
`discussion and analysis and audited financial statements for each year in the three -year
`period ended December 31, 2013 for each of Mylan and the Business, along with
`unaudited interim financial statements for nine months ended September 30, 2014 for each
`of Mylan and the Business), pro forma financial information for New Mylan, a copy and
`description of the opinion of Mylan's financial advisor, information with respect to the
`directors and executive officers of New Mylan and their compensation, a detailed
`description of the New Mylan ordinary shares along with a detailed comparison of the
`rights of holders of Mylan common stock as compared to the rights of holders of New
`Mylan ordinary shares, and risk factors related to the Transaction, New Mylan, Mylan,
`and the Business, among other information.
`
`The information that will be available concerning Mylan, the Business, the
`Transaction, and New Mylan is at least as extensive as the information that would be
`available to Mylan's shareholders if Mylan were to acquire the Business directly and file a
`proxy statement on Schedule 14A.
`
`New Mylan will also file a Form 8 -K reporting the consummation of the
`Transaction no later than four business days following the closing of the Transaction,
`including therein the disclosures and information required by Item 2.01 of Form 8 -K, the
`financial statements and pro forma information required by Item 9.01 of Form 8 -K (within
`71 days after the filing of the initial Form 8 -K reporting the closing of the Transaction, in
`accordance with the requirements of Item 9.01) and, to the extent applicable, disclosures
`required by the other items of Form 8 -K. Immediately following the consummation of the
`Transaction, although New Mylan will be incorporated in the Netherlands, New Mylan
`will be obligated to file reports under the Exchange Act and will not be a foreign private
`issuer.
`
`Explanation of Transaction Structure
`
`The Transaction is structured in substantially similar fashion to the holding
`company reorganization and acquisition (the "Holdco Structure ") outlined in the GrafTech
`Intl Ltd. (available November 4, 2010) and World Access, Inc. (available October 28,
`1998) no- action letters. In the HoldCo Structure, the predecessor company organizes a
`wholly -owned subsidiary (the "IloldCo "), which in turn organizes a merger subsidiary to
`merge with and into the predecessor company, resulting in the HoldCo becoming the
`
`NCI Exhibit 2007
`Page 6 of 20
`
`

`
`7
`
`parent company of the predecessor company at the effective time of the transaction. In
`addition, in the HoldCo Structure, the HoldCo acquires another business or businesses at
`the effective time of the transaction. Similar to the HoldCo Structure, Mylan formed an
`indirect, wholly -owned subsidiary, New Mylan, and caused New Mylan to form a wholly -
`owned merger subsidiary for the purpose of merging with and into Mylan at the effective
`time of the Transaction. in addition, at the closing of the Transaction, the Business will be
`acquired by means of a purchase by New Mylan of the shares of the Transferred
`Companies and certain intellectual property assets in exchange for New Mylan ordinary
`shares. As a result, New Mylan, which was previously wholly -owned by Mylan, will own
`both Mylan and the Business upon consummation of the Transaction, with the former
`Mylan shareholders owning approximately 78% of New Mylan and Abbott's affiliates
`owning approximately 22 %. As detailed in the Registration Statement and below, Mylan
`believes that the structure of the Transaction provides Mylan with important and valuable
`strategic benefits.
`
`Mylan also could have chosen to effect the Transaction by simply entering
`into an asset purchase agreement providing for the acquisition of the Business by Mylan,
`with Abbott's affiliates receiving the same percentage ownership interest in Mylan that
`they would hold in New Mylan under the Transaction as structured. In that situation, there
`would be no actual "succession" under Rule 12g -3(a), since the shares of Mylan common
`stock would remain registered under the Exchange Act, Mylan would retain its reporting
`history for all purposes, and Mylan would remain eligible to use Form S- 3. Although this
`structure could accomplish the Transaction and does not mise any succession issues under
`the Securities Act and Exchange Act, it would not provide certain of the important and
`valuable strategic benefits of the Transaction as structured. The business operated by New
`Mylan following the Transaction, however, would be identical to the business that would
`be operated by Mylan if it chose to effect the Transaction through the more typical asset
`purchase structure described in this paragraph. In addition, in both scenarios, Mylan would
`be the acquirer for accounting purposes.
`
`Effect on Business and Structure of Company
`
`The Transaction will strengthen Mylan's business and financial profile by
`diversifying revenue streams and enhancing its cash flows; however, New Mylan's
`business will remain focused in the pharmaceutical industry, with specific focus on the
`generic, branded generic and specialty segments. Accordingly, while the Transaction will
`expand the size and geographic footprint of the business currently conducted by Mylan,
`the Transaction will not fundamentally alter the nature of or material risks attendant to the
`business currently conducted by Mylan. Moreover, because Mylan and the Business are
`both engaged in the branded generic and specialty pharmaceutical business, Mylan
`believes that the risks of investing in New Mylan ordinary shares will not differ materially
`from the risks of investing in Mylan common stock other than the risks associated with the
`Transaction and certain other risks specified in the Registration Statement, including,
`among other things, the ability to achieve the intended benefits of the Transaction, the tax
`treatment of New Mylan, certain risks related to the fact that New Mylan will be
`organized in the Netherlands and certain risks related to the ownership of New Mylan
`ordinary shares by Abbott's affiliates after the closing of the Transaction.
`
`NCI Exhibit 2007
`Page 7 of 20
`
`

`
`8
`
`Immediately following the Transaction, Mylan's business will continue to
`comprise the substantial portion of New Mylan's business. The following table
`summarizes certain unaudited pro forma financial information set forth in the Registration
`Statement and is provided solely to demonstrate the approximate allocation of New
`Mylan's total revenues, earnings from operations and total assets.
`
`Mylan Historical
`
`Pro Forma
`
`Mylan Percentage of
`Pro Forma New Mylan
`
`(USD in millions)
`Total Revenues t'1
`Earnings from Operations (t)
`Total Assets 1 )
`íU For the nine months ended September 30, 2014
`(2) As of September 30, 2014
`
`$ 5,636.9
`960.1
`15,174.1
`
`$ 7,097.9
`883.4
`22,840.8
`
`79,4%
`1083%
`66.4%
`
`With respect to management structure, the executive officers and directors
`of New Mylan will be the same as the current executive officers and directors of Mylan.
`In this regard, upon completion of the Transaction, the directors of Mylan immediately
`prior to the Transaction will become the directors of New Mylan. In addition, Mylan's
`senior management will constitute the senior management of New Mylan upon the
`completion of the Transaction. In short, New Mylan will have the same directors and
`executive officers and the same NASDAQ trading symbol as Mylan has today, and its
`business will remain substantially similar. Mylan's public disclosures regarding the
`Transaction to date have been consistent with the substantive effect of the Transaction
`described herein. For example, its press release dated July 14, 2014, announcing the
`transaction was entitled "Mylan to Acquire Abbott's Non -U.S. Developed Markets
`Specialty and Branded Generics Business in an All -Stock Transaction" and its investor
`presentation dated the same date describes the Transaction as the "Mylan Acquisition of
`Abbott's Non -U.S. Developed Markets Specialty and Branded Generics Business ".
`
`New Mylan will be a Dutch entity with organizational documents that
`differ in certain respects from those of Mylan and there will be differences between the
`rights of holders of shares of Mylan common stock and the rights of holders of New
`Mylan ordinary shares following the Transaction, but those are corporate law matters that
`should not affect New Mylan's status as an SEC registrant and a public company with its
`shares listed in the United States. Detailed disclosure is included in the Registration
`Statement with respect to differences between the rights of holders of shares of Mylan
`common stock and New Mylan ordinary shares, including a detailed comparison of
`Pennsylvania corporate law and Dutch company law and the respective organizational
`documents of Mylan and New Mylan.
`
`Employee Benefit Matters
`
`At the effective time of the Merger, (i) each then outstanding Mylan stock
`option, stock appreciation right, restricted stock unit and performance -based restricted
`stock unit granted prior to December 21, 2012 (the effective date of Mylan's change from
`single- trigger to double -trigger vesting upon a "change in control ") will become fully
`vested, with such stock options and stock appreciation rights becoming exercisable into
`
`NCI Exhibit 2007
`Page 8 of 20
`
`

`
`_
`
`,'
`
`9
`
`New Mylan ordinary shares and restricted stock units and performance -based restricted
`stock units being settled in New Mylan ordinary shares and (ii) each then outstanding
`Mylan stock option, stock appreciation right, restricted stock unit and performance -based
`restricted stock unit granted on or after December 21, 2012 (the effective date of Mylan's
`change from single -trigger to double -trigger vesting upon a "change in control ") will be
`converted into a stock option, stock appreciation right, restricted stock unit or
`performance -based restricted stock unit, as applicable, denominated in New Mylan
`ordinary shares, which award will be subject to the same number of New Mylan ordinary
`shares and the same terms and conditions (including vesting and other lapse restrictions)
`as were applicable to the Mylan equity -based award in respect of which it was issued
`immediately prior to the effective time of the Merger.
`
`The Mylan Incentive Plan will be assumed by New Mylan as of the
`effective time of the Merger.
`
`Mylan and New Mylan will take the actions necessary to effectuate the
`conversion of such Mylan equity -based awards to New Mylan equity -based awards and
`the assumption of the Mylan Incentive Plan by New Mylan, including, if necessary, the
`adoption of amendments to the Mylan Incentive Plan necessary to reflect the assumption
`of the Mylan Incentive Plan and the extension of such plan to employees of New Mylan
`and its subsidiaries. The plan under which such options, rights, and benefits with respect
`to New Mylan ordinary shares will be administered after such assumption is referred to
`herein as the "New Mylan Plan". Mylan will file post -effective amendments to its
`registration statements on Form S -8 in order to deregister any securities remaining on
`those registration statements either at or shortly after the closing of the Transaction and
`simultaneous with the filing of the new registration statement on Form S -8 by New Mylan.
`
`Summary of Request for Relief
`
`We respectfully request that the Staff concur with the following
`conclusions, each of which is discussed more fully under the heading "Discussion and
`Analysis" below.
`
`Rules 12a -3(a) and 126 -2. The Merger constitutes a "succession"
`(a)
`for purposes of Rule 12g -3(a) wider the Exchange Act, and the New Mylan ordinary
`shares will be deemed registered under Section 12(b) of the Exchange Act upon
`consummation of the Merger, and that New Mylan, as successor to Mylan, will be deemed
`a large accelerated filer for purposes of Exchange Act Rule 12b -2.
`
`Availability of Forms S -8 and S -3 and Ability to Incorporate by
`(b)
`Reference into Form S-4. New Mylan may, prior to the filing of its initial Annual Report
`on Form 10 -K, use Fonn S -8 to register the securities covered by the New Mylan Plan and
`any new benefit plans, stock purchase plans or stock incentive plans of New Mylan.
`
`In addition, upon completion of the Transaction, New Mylan may include
`Mylan's reporting history and status prior to the Merger in determining whether New
`
`NCI Exhibit 2007
`Page 9 of 20
`
`

`
`lo
`
`Mylan meets the eligibility requirements for the use of Forni S -3 and the ability to
`incorporate by reference into Form S -4.
`
`Availability of Rule 144. New Mylan, upon consummation of the
`(c)
`Merger, may include Mylan's reporting history and status in determining whether New
`Mylan meets the current public information requirements in Rule 144(c)(1).
`
`Section 4(a)(3) Prospectus Delivery Requirement and Rule 174(b).
`(d)
`In accordance with Rule 174(b) under the Securities Act, New Mylan need not comply
`with the prospectus delivery requirements of Section 4(a)(3) of the Securities Act.
`
`Discussion and Analysis
`
`(a)
`
`Rules 12g -3(a) and 12h -2
`
`Rule 12g -3(a) under the Exchange Act provides that where, in connection
`with a "succession" by merger, securities of an issuer that are not already registered under
`Section 12 of the Exchange Act arc issued to holders of any class of securities of another
`issuer that are already registered under Section 12(b) or 12(g) of the Exchange Act, then
`the unregistered securities shall be deemed to be registered under the same paragraph of
`Section 12 of the Exchange Act, subject to certain enumerated exceptions.
`
`The definition of "succession" in Exchange Act Rule 12b -2 contemplates
`the direct acquisition of the assets comprising an ongoing business. In the Merger,
`although New Mylan would be acquiring assets of an ongoing business, it would be doing
`so indirectly, with Mylan continuing as a wholly -owned indirect subsidiary of New
`Mylan. However, the structure of the Transaction should not prevent New Mylan from
`being deemed to have made a "direct acquisition" of the business of Mylan and thus to be
`the successor to Mylan under Rule 12g -3(a).
`
`Indeed, the Staff has taken similar positions with respect to transactions in
`which the assets "directly acquired" remain in a subsidiary of the successor company
`rather than proceeding to direct ownership by the successor, including in various holding
`company reorganization structures. See, e.g., En