EX-10.5: AMENDMENT TO CONFIRMATION OF OTC WARRANT TRANSACTION

EX-10.5 8 y71159exv10w5.htm EX-10.5: AMENDMENT TO CONFIRMATION OF OTC WARRANT TRANSACTION EX-10.5

Exhibit 10.5

[Execution Copy]

AMENDMENT TO CONFIRMATION

THIS AMENDMENT (this “Amendment”) is made as of September 15, 2008, among Merrill Lynch International (“Dealer”), Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Agent”) and Mylan Inc. (“Issuer”).

WHEREAS, Dealer, Agent and Issuer are parties to a Confirmation dated as of September 9, 2008 (the “Confirmation”) evidencing an OTC Warrant Transaction (Ref. No. ###-###-####);

WHEREAS, the parties wish to amend the Confirmation on the terms and conditions set forth in this Amendment;

NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto agree as follows:

Section 1. Terms Used but Not Defined Herein. Terms used but not defined herein shall have the respective meanings given to them in the Confirmation.

Section 2. Amendment to the Confirmation.

	(a)		The “Premium” under the Confirmation shall be USD43,792,000.

	(b)		The “Number of Warrants” shall be 30,217,728.

Section 3. Representations and Warranties.

Issuer represents and warrants to Dealer as follows:

	(a)		On the date of this Amendment, (A) none of Issuer or any of its officers and directors is aware of any material nonpublic information regarding Issuer or the Shares and (B) all reports and other documents filed by Issuer with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.

	(b)		Issuer is not entering into this Amendment to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act.

	(c)		The representations and warranties of Issuer set forth in Section 3 of the Agreement and in Confirmation opposite the caption “Compliance with Securities Laws” are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein.

Section 4. Effectiveness. This Amendment shall become effective upon execution by the parties hereto.

Section 5. Counterparts. This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all of the signatures thereto and hereto were upon the same instrument.

(Mylan_MLI_Warrant_Amendment)

Section 6. Governing Law. This Amendment shall be governed by the laws of the State of New York (without reference to its choice of law doctrine, other than Title 14 of the New York General Obligations Law).

Section 7. Effectiveness of Confirmation. Except as amended hereby, all the terms of the Confirmation shall remain and continue in full force and effect and are hereby confirmed in all respects.

(Mylan_MLI_Warrant_Amendment)

IN WITNESS WHEREOF, the parties have signed this Amendment as of the date and year first above written.


MERRILL LYNCH INTERNATIONAL
By:	/s/ David Royce
	Name:	David Royce
	Title:	Authorized Signatory

Agreed and accepted by :


MYLAN INC.
By:	/s/ Edward J. Borkowski
	Name:	Edward J. Borkowski
	Title:	Executive Vice President and Chief Financial Officer

Acknowledged and agreed as to matters to the Agent:

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

Solely in its capacity as Agent hereunder


By:	/s/ Fran Jacobson
	Name:	Fran Jacobson
	Title:	Authorized Signatory

(Mylan_MLI_Warrant_Amendment)