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Exhibit 10.4

EXECUTION COPY

 

 

 

 

 

Confirmation of OTC Warrant Transaction

 

 

 

 

 

Date:

 

September 9, 2008

 

 

 

 

 

To:

 

Mylan Inc. (“ Counterparty ”)

 

 

1500 Corporate Drive

 

 

Canonsburg, PA 15317

 

 

Attention: Edward J. Borkowski, Chief Financial Officer

 

 

Facsimile No.: (724) 514 1871

 

 

Telephone No.: (724) 514 1870

 

 

 

 

 

From:

 

Wells Fargo Bank, National Association. (“ Dealer ”)

 

 

550 California Street

 

 

14 th Floor

 

 

San Francisco, CA 94104

 

 

Attention: Financial Product Documentation Group,

 

 

Equities Trading Manager

 

 

Facsimile No.: (415) 646-9208

 

 

Telephone No.: (415) 396-3962

 

 

 

 

 

Reference No:

 

 

 

 

Dear Sir / Madam:

     The purpose of this letter agreement (this “ Confirmation ”) is to confirm the terms and conditions of the above-referenced transaction entered into between Counterparty and Dealer on the Trade Date specified below (the “ Transaction " ). This Confirmation constitutes a “ Confirmation ” as referred to in the Agreement specified below.

     The definitions and provisions contained in the 2000 ISDA Definitions (the “ Swap Definitions ”) and the 2002 ISDA Equity Derivatives Definitions (the “ Equity Definitions ” and, together with the Swap Definitions, the “ Definitions " ), in each case as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between the Swap Definitions and the Equity Definitions, the Equity Definitions will govern, and in the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern. References herein to a “ Transaction ” shall be deemed to be references to a “ Share Option Transaction ” for the purposes of the Equity Definitions and to a “ Swap Transaction ” for the purposes of the Swap Definitions. For purposes of this Transaction, “ Warrant Style ”, “ Warrant Type ”, “ Number of Warrant s” and “ Warrant Entitlemen t” (each as defined below) shall be used herein as if such terms were referred to as “ Option Style ”, “ Option Type ”, “ Number of Options ” and “ Option Entitlement ”, respectively, in the Definitions.

     This Confirmation evidences a complete binding agreement between you and us as to the terms of the Transaction to which this Confirmation relates. This Confirmation (notwithstanding anything to the contrary herein), shall be subject to, and form part of, an agreement in the 1992 form of the ISDA Master Agreement (the “ Master Agreement ” or “ Agreement ”) as if we had executed an agreement in such form (but without any Schedule and with elections specified in the “ISDA Master Agreement” Section of this Confirmation) on the Trade Date. In the event of any inconsistency between the provisions of that Agreement and this Confirmation, this Confirmation will prevail for the purpose of this Transaction. The parties hereby agree that the Transaction evidenced by this Confirmation shall be the only Transaction subject to and governed by the Agreement.

     The terms of the particular Transaction to which this Confirmation relates are as follows:

General Terms:

 

 

 

Trade Date:

 

September 9, 2008

OTC Warrant Confirmation (2015)

 


 

 

 

 

Effective Date:

 

September 9, 2008 subject to cancellation of the OTC Warrant Transaction prior to 5:00 p.m. (New York City time) on such date by the Dealer. In the event of such cancellation, any payments previously made hereunder, including the Premium, shall be returned to the person making such payment. In addition, Counterparty shall reimburse Dealer for any costs or expenses (including market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position).

 

 

 

Warrant Style:

 

European

 

 

 

Warrant Type:

 

Call

 

 

 

Seller:

 

Counterparty

 

 

 

Buyer:

 

Dealer

 

 

 

Shares:

 

Shares of Common Stock, $0.50 par value, of Counterparty (Security Symbol: “ MYL).

 

 

 

Number of Warrants:

 

11,261,265

 

 

 

Daily Number of Warrants:

 

For any day, the unexercised Number of Warrants on such day divided by the remaining number of Expiration Dates (including such day) and rounded down to the nearest whole number, with the balance of the Number of Warrants exercised on the final Expiration Date.

 

 

 

Warrant Entitlement:

 

One (1) Share per Warrant

 

 

 

Strike Price:

 

 $ 20.00

 

 

 

Premium:

 

 $16,320,000

 

 

 

Premium Payment Date:

 

The Effective Date; provided that no cancellation of the Transaction has occurred prior to 5:00 p.m. (New York City time) on such date by Dealer.

 

 

 

Exchange:

 

New York Stock Exchange

 

 

 

Related Exchange(s):

 

All Exchanges

 

 

 

Full Exchange Business Day:

 

A Scheduled Trading Day that has a scheduled closing time for its regular trading session at 4:00 p.m. (New York City time) or the then standard closing time for regular trading on the Exchange and is not a Disrupted Day.

 

 

 

Procedures for Exercise:

 

 

 

 

 

Expiration Time:

 

11:59 p.m. (New York City time).

 

 

 

Expiration Dates:

 

The 80 consecutive Full Exchange Business Days beginning on and including December 15, 2015 each shall be the Expiration Date for a number of Warrants equal to the Daily Number of Warrants on such date. For the avoidance of doubt, the aggregate number of Expiration Dates hereunder shall not be affected by the occurrence of a Disrupted Day or other circumstance that causes a Scheduled Trading Day not to be a Full Exchange Business Day.

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Exercise Dates:

 

Each Expiration Date shall be an Exercise Date for a number of Warrants equal to the Daily Number of Warrants on such date. The Warrants shall not be exercised prior to the first such Exercise Date.

 

 

 

Automatic Exercise:

 

Applicable; provided that Section 3.4(a) of the Equity Definitions shall apply to Net Physical Settlement; and provided further that, unless all Warrants have been previously exercised hereunder, a number of Warrants for each Expiration Date equal to the Daily Number of Warrants for such Expiration Date shall be deemed to be automatically exercised.

 

 

 

Counterparty’s Telephone Number

 

Address:               Mylan Inc.

and Telex and/or Facsimile Number

 

1500 Corporate Drive

and Contact Details for purpose

 

Canonsburg, PA 15317

of Giving Notice:

 

Attention:            Edward J. Borkowski, Chief Financial Officer

 

 

Facsimile No.:     (724) 514-1871

 

 

Telephone No.:    (724) 514-1870

 

 

 

Valuation:

 

 

 

 

 

Valuation Dates:

 

Each Exercise Date

 

 

 

Settlement Terms:

 

 

 

 

 

Settlement Price:

 

For each Valuation Date, the Rule 10b-18 Dollar Volume Weighted Average Price of the Shares (“ VWAP ”) calculated from 9:45 a.m. to 3:45 p.m., as observed under the heading Bloomberg “VWAP” on Bloomberg page MYL.N <equity> VAP (or any successor thereto) (or if such volume-weighted average price is unavailable, the market value of one Share on such Valuation Date, as determined by the Calculation Agent); provided that, if the scheduled weekday closing time of the Exchange for any Valuation Date is later than 4:00 p.m. (without regard to after hours or any other trading outside of the regular trading session hours) the VWAP shall be calculated for such Valuation Date from 9:45 a.m. until 15 minutes prior to such later closing time of the Exchange.

 

 

 

 

 

Section 6.3(a) of the Equity Definitions is hereby amended by replacing clause (ii) in its entirety with “(ii) an Exchange Disruption, or” and inserting immediately following clause (iii) the phrase “; in each case that the Calculation Agent determines is material.”

 

 

 

Settlement Method:

 

Net Physical Settlement only.

 

 

 

Net Physical Settlement:

 

Counterparty shall deliver to Dealer on the Settlement Date a number of Shares (the “ Delivered Shares ”) equal to the Share Delivery Quantity; provided that in the event that the number of Shares calculated comprises any fractional Share, only whole Shares shall be delivered and an amount in cash equal to the value of such fractional share shall be payable by the Counterparty to Dealer in lieu of such fractional Share. If, in the reasonable opinion of Dealer or Hedging Party based on advice of counsel, for any reason, the Shares deliverable upon Net Physical Settlement would not be immediately freely transferable by Dealer under Rule 144(b)(1) under the Securities Act of 1933, as amended (the “ Securities Act ”), then Dealer or Hedging Party may elect to either (x) accept delivery of such Shares notwithstanding any restriction on transfer or (y) have the provisions set forth under “ Registration/Private Placement ” below apply,

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mutatis mutandis.

 

 

 

Share Delivery Quantity:

 

For each Exercise Date, a number of Shares, as calculated by the Calculation Agent, equal to the Net Physical Settlement Amount for such Exercise Date divided by the Settlement Price on the Valuation Date in respect of such Exercise Date plus an amount in cash in lieu of any fractional shares (based on the applicable Settlement Price).

 

 

 

Net Physical Settlement Amount:

 

For any Exercise Date, an amount equal to the product of (i) the Number of Warrants being exercised on the relevant Exercise Date, (ii) the Strike Price Differential for such Exercise Date and (iii) the Warrant Entitlement.

 

 

 

Strike Price Differential:

 

For any Valuation Date, (i) if the Settlement Price is greater than the Strike Price, an amount equal to the excess of such Settlement Price over the Strike Price for such Valuation Date or (ii) if such Settlement Price is less than or equal to the Strike Price, zero.

 

 

 

Settlement Date:

 

Settlement with respect to each Exercise Date shall occur on the third (3rd) Full Exchange Business Day following the final Valuation Date; provided that Dealer or Hedging Party shall have the right to request by prior written notice to Counterparty a Settlement Date with respect to any Exercise Date and the related Share Delivery Quantity that is three (3) Full Exchange Business Days following such Exercise Date. Such request shall not unreasonably be denied.

 

 

 

Limitations on Net Physical Settlement by Counterparty:

 

Notwithstanding anything herein or in the Agreement to the contrary, the number of Shares that may be delivered at settlement by Counterparty shall not exceed 18,972,416 Shares at any time, as adjusted by Calculation Agent to account for any subdivision, stock-split, stock combination, reclassification or similar dilutive or anti-dilutive event with respect to the Shares and as such number may be increased by operation of the provisions set forth below opposite the caption “Increases in Maximum Deliverable Share Amount ” (“ Maximum Deliverable Share
Amount
”)
.

 

 

 

 

 

Counterparty represents and warrants that the number of Available Shares as of the Trade Date is greater than the Maximum Deliverable Share Amount. Counterparty covenants and agrees that (i) Counterparty shall not take any action of corporate governance or otherwise to reduce the number of Available Shares below the Maximum Deliverable Share and (ii) Counterparty shall use its reasonable efforts to cause the number of Available Shares at all times to be greater than the Maximum Deliverable Share Amount.

 

 

 

 

 

For this purpose, “ Available Shares ” means the number of Shares Counterparty currently has authorized (but not issued and outstanding) less the maximum number of Shares that may be required to be issued by Counterparty in connection with stock options, convertibles, and other commitments of Counterparty that may require the issuance or delivery of Shares in connection therewith (other than the Transaction and any amendment thereto or new confirmation evidencing the issuance by Counterparty to Dealer of additional warrants within 30 days of September 3, 2008).

 

 

 

Increases in Maximum Deliverable
Share Amount:

 

Following the Trade Date, Counterparty agrees to use its commercially reasonable efforts seek approval from its shareholders (including, without limitation, to seek such approval at its annual meeting of shareholders in 2009 and, if needed, the annual meeting of shareholders for each following calendar year) to increase the number of authorized but unissued Shares such that the number of Available Shares shall be equal to at least two times the Number of

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Warrants that remain unexercised (the “ 2x Condition ”). Upon Counterparty obtaining such approval for such an increase, the Maximum Deliverable Share Amount shall automatically increase to two times the aggregate Number of Warrants that remain unexercised. Counterparty further agrees that following the Trade Date and until the 2x Condition is satisfied, 30% of the increase in the number of authorized but unissued Shares and/or Shares that are held in treasury that results from any of the events described in clause (i), (ii) or (iii) below shall be reserved solely for delivery in connection with the Transaction, and the Maximum Deliverable Share Amount shall be increased in each case by one-half of the number of such additional authorized but unissued Shares. Until the 2x Condition has been satisfied, Counterparty shall notify Buyer no later than the third Business Day of each month of the occurrence during the immediately preceding month of any of the events described in clause (i), (ii) or (iii) below if the aggregate effect of such events would be to increase the number of additional but authorized Shares by at least 10,000 Shares (including the number of additional authorized but unissued Shares). In the event Counterparty shall not have delivered the full number of Shares otherwise deliverable under the Transaction as a result of the “ Limitations on Net Physical Settlement by Counterparty ” set forth above (the resulting deficit, the “ Deficit Shares ”), Counterparty shall be continually obligated to deliver, from time to time (and, for the avoidance of doubt, irrespective of any early termination or cancellation of the relevant Transaction or the expiration of the relevant Warrants) until the full number of Deficit Shares have been delivered pursuant to this paragraph, Shares when, and to the extent, that (i) Shares are repurchased, acquired or otherwise received by Counterparty or any of its subsidiaries (including, without limitation, pursuant to the settlement or termination of any Share option or other derivative transactions) after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), (ii) authorized and unissued Shares reserved for issuance in respect of other transactions prior to such date which prior to the relevant date become no longer so reserved and (iii) Counterparty additionally authorizes any unissued Shares that are not reserved for other transactions. Until the full number of Deficit Shares has been delivered pursuant to this paragraph, Counterparty shall immediately notify Buyer of the occurrence of any of the foregoing events (including the number of Shares subject to clause (i), (ii) or (iii) and the corresponding number of Shares to be delivered) and promptly deliver such Shares thereafter.

 

 

 

Dividends:

 

 

 

 

 

Dividends:

 

If at any time during the period from and including the Trade Date, to and including the date on which Counterparty has fully performed its obligations to deliver Shares hereunder, an ex-dividend date for a cash dividend occurs with respect to the Shares (an “ Ex-Dividend Date ”), and that dividend is different from the Regular Dividend on a per Share basis, then the Calculation Agent will, in its reasonable discretion, adjust the Strike Price, the Number of Warrants, the Daily Number of Warrants, the Warrant Entitlement and any other variable it deems appropriate to preserve the fair value of the Warrants after taking into account such dividend and any corresponding adjustment to the Regular Dividend.

 

 

 

Regular Dividend:

 

Initially USD $0.00 per Share per quarter in respect of the Shares. In the event that, in any quarter, a regular quarterly Ex-Dividend Date occurs for which the amount of the corresponding cash dividend is different (the “ New Dividend Amount ”) from the Regular Dividend or no Ex-Dividend Date occurs (in which case the New Dividend Amount shall be zero), then following the adjustment by the Calculation Agent pursuant to “Dividends” above, the Regular Dividend

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shall equal the New Dividend Amount.

 

 

 

Extraordinary Dividends:

 

Any dividend other than Regular Dividends. For the avoidance of doubt, if more than one Ex-Dividend Date occurs in a quarter, the Calculation Agent shall designate any cash dividend other than a Regular Dividend as an Extraordinary Dividend and will, in its reasonable discretion, adjust the Strike Price, the Number of Warrants, the Daily Number of Warrants, the Warrant Entitlement and any other variable it deems appropriate to preserve the fair value of the Warrants after taking into account such Extraordinary Dividend.

 

 

 

Adjustments:

 

 

 

 

 

Method of Adjustment:

 

Calculation Agent Adjustment

 

 

 

Extraordinary Events:

 

 

 

 

 

Consequences of Merger Events:

 

(a) Share-for-Share: Modified Calculation Agent Adjustment

 

 

 

 

 

(b) Share-for-Other: Cancellation and Payment (Calculation Agent Determination)

 

 

 

 

 

(c) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that the Calculation Agent may elect Component Adjustment for all or part of the Transaction.

 

 

 

 

 

 

Tender Offer:

 

Applicable

 

 

 

Consequences of Tender Offers:

 

(a) Share-for-Share: Modified Calculation Agent Adjustment

 

 

 

 

 

(b) Share-for-Other: Modified Calculation Agent Adjustment

 

 

 

 

 

(c) Share-for-Combined: Modified Calculation Agent Adjustment

 

 

 

 

 

With respect to any Extraordinary Events hereunder, upon the occurrence of Cancellation and Payment in whole or in part, the parties agree that the amount to be paid, in accordance with the Equity Definitions, shall constitute a Transaction Early Termination Amount, subject to satisfaction by the payment or delivery of Shares or cash as set forth in the Early Termination section below.

 

 

 

Modified Calculation Agent Adjustment:

 

If, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in the Counterparty being different from the issuer of the Shares, then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Dealer, Hedging Party and the Counterparty shall, prior to the Merger Date, have entered into such documentation containing representations, warranties and agreements relating to securities law and other issues as requested by Dealer or Hedging Party that Dealer or Hedging Party has determined, in its reasonable discretion, to be reasonably necessary or appropriate to allow Dealer or Hedging Party to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions, and to


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