CALCULATION AGENT
AGREEMENT
THIS CALCULATION
AGENT AGREEMENT (this “ Agreement ”) is made
this 9 th
day of September, 2008, among Mylan
Inc. (the “ Issuer ”), Wells Fargo Bank,
National Association (“ Bank ”, and together
with the Issuer, the “ Transacting Parties ”)
and Goldman Sachs International (“ GSI ”, and,
in its Calculation Agent and other capacities under the
Confirmations (as defined below), the “ Calculation
Agent ”).
A. The
Transacting Parties are parties to (i) a long form
confirmation dated as of September 9, 2008, confirming the terms
and conditions of that certain Cash Convertible Bond Hedge
Transaction (the “Cash Convertible Bond Hedge
Transaction” ), a copy of which is attached hereto as
Exhibit A (the “Cash Convertible Bond Hedge
Confirmation ”) and (ii) a long form confirmation
dated as of September 9, 2008, confirming the terms and
conditions of that certain Issuer Warrant Transaction (the
“Issuer Warrant Transaction” and, together with
the Cash Convertible Bond Hedge Transaction, the
“Transactions” ), a copy of which is attached as
Exhibit B (the “Issuer Warrant
Confirmation” and, together with the Cash Convertible
Bond Hedge Confirmation, the “Confirmations”
);
B. The
Transacting Parties wish to appoint GSI to act as Calculation Agent
under each of the Confirmations on the terms and conditions set
forth in this Agreement.
C. The
Transacting Parties acknowledge that Bank will hedge its exposure
with respect to the Transactions by entering into back-to-back
transactions with GSI (the “Back-to-Back
Transactions” ).
D. The
Transacting Parties acknowledge that an affiliate of GSI will act
as an initial purchaser of the USD 500,000,000 principal amount of
3.75 % cash convertible senior notes due 2015 of the
Issuer.
In consideration
of their mutual covenants contained herein and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. Appointment of Calculation Agent. The
Transacting Parties hereby jointly appoint GSI to act as
Calculation Agent and to perform all of the other duties to be
performed by GSI under each of the Confirmations. GSI hereby
accepts such appointment and undertakes to perform the duties of
the Calculation Agent under each of the Confirmations, all in
accordance
with the terms
and conditions of the Confirmations (including, but not limited to,
the definitions incorporated therein). In no event shall GSI assign
its duties as the Calculation Agent, unless it (i) assigns
such duties to one of its affiliates simultaneously with an
assignment of its rights and obligations under the Back-to-Back
Transactions to such an affiliate and (ii) delivers a written
notice of such an assignment to the Transacting Parties.
Section 2. Termination. GSI shall cease to be the
Calculation Agent and to be responsible for performance of its
duties under any Confirmation upon the termination of the
Transaction evidenced by such Confirmation in accordance with the
terms of such Confirmation.
Section 3. Exculpation; No Reliance.
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(a)
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For
the avoidance of doubt, the Transacting Parties agree that GSI
shall have no responsibility or personal liability to e
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