EXHIBIT 1.2
UNDERWRITING AGREEMENT
April 3, 1997
AMGEN INC.
0000 XxXxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Ladies and Gentlemen:
We, the underwriters named below (collectively, the "Underwriters"),
understand that Amgen Inc., a Delaware corporation (the "Company"), proposes to
issue and sell $100,000,000 aggregate principal amount of its 8 1/8% Debentures
due April 1, 2097 (the "Offered Securities").
A. Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the principal amount of the Offered
Securities set forth below opposite their names at a purchase price of 98.333%
of the principal amount of the Offered Securities, plus accrued interest, if
any, from April 1, 1997 to the Closing Date (as defined below):
Principal Amount of
Name Offered Securities
---- ------------------
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated....... $ 50,000,000
Xxxxxx Xxxxxxx & Co.
Incorporated...................... $ 50,000,000
Total....................... $100,000,000
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The Underwriters will pay for the Offered Securities upon delivery thereof at
10:00 a.m. (New York time) on April 8, 1997, at such place as the Underwriters
shall designate. Such date and location of delivery of and payment for the
Offered Securities may be varied by agreement between the Company and the
Underwriters. The time and date of such payment and delivery are hereinafter
referred to as the Closing Date.
B. The Offered Securities are to be issued pursuant to the
provisions of an Indenture, dated as of January 1, 1992, as supplemented by a
First Supplemental Indenture dated as of February 26, 1997 (as so supplemented,
and including any instrument establishing the form and terms of the Offered
Securities, the "Indenture"), between the Company and Citibank, N.A., as
trustee.
C. The Offered Securities shall have the terms set forth in the
Basic Prospectus dated March 28, 1997, and the Prospectus Supplement dated April
3, 1997, relating to the Offered Securities.
D. The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including, without limitation, (i) the
preparation, printing (or reproduction) and filing with the Commission of the
Registration Statement, any preliminary prospectus and the Prospectus and of
each amendment and supplement thereto, (ii) the printing (or reproduction) and
delivery to the Underwriters of this Agreement and such other documents as may
be required in connection with the offering, purchase, sale and delivery of the
Offered Securities, (iii) the preparation, issuance and delivery of the
certificates for the Offered Securities to the Underwriters, including any
transfer taxes or duties payable upon the sale of the Offered Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the expenses described in Section 5(d)
hereof, and (vi) the printing (or reproduction) and delivery to the
Underwriters of any blue sky survey and any supplement thereto.
E. All provisions contained in the document entitled Amgen Inc.
Underwriting Agreement Standard Provisions (Debt Securities), a copy of which is
attached hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, except that (i) if any term
defined in such document is otherwise defined herein, the definition set forth
herein shall control and (ii) all references in such document to a type of
security that is not an Offered Security shall not be deemed to be a part of
this Agreement.
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Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
As the Underwriters named herein
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Managing Director
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxxxx III
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Name: Xxxxxx X. Xxxxxxxxxx III
Title: Vice President
Accepted:
AMGEN INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Finance and Corporate Development,
and Chief Financial Officer
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AMGEN INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
From time to time, Amgen Inc., a Delaware corporation (the "Company"),
may enter into one or more underwriting agreements that provide for the sale of
designated securities to the several underwriters named therein. The standard
provisions set forth herein may be incorporated by reference in any such
underwriting agreement (each, an "Underwriting Agreement"). Any such
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in any such
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Registration No. 33-44454) including a
prospectus relating to the Offered Securities and has filed with, or transmitted
for filing to, or shall promptly hereafter file with or transmit for filing to,
the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Offered Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The term "Regis-
tration Statement" means the registration statement (Registration No. 33-44454)
as amended to the date of this Agreement, and the registration statement
(Registration No. 333-19931) relating to the Offered Securities filed by the
Company with the Commission on January 17, 1997 pursuant to Rule 462(b) under
the Securities Act. The term "Basic Prospectus" means the basic prospectus
included in the Registration Statement, as amended by the final basic prospectus
relating to the offering and sale of debt securities, filed with the Commission
on March 28, 1997 pursuant to Rule 424 under the Securities Act. The term
"Prospectus" means the Basic Prospectus together with the Prospectus Supplement.
The term "preliminary prospectus" means the preliminary prospectus supplement
specifically relating to the Offered Securities, filed with the Commission on
March 28, 1997 pursuant to Rule 424 under the Securities Act, together with the
Basic Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus,"
"preliminary prospectus," "supplement" and "amendment" or "amend" shall include,
in each case, all documents that are incorporated or (as required by paragraph
(b) of Item 12 of Form S-3) deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
The term "Significant Subsidiary" shall be used herein as such term is
defined in Rule 1-02 of Regulation S-X.
The term "Subsidiary" as used herein shall mean any corporation the
outstanding securities of which having ordinary voting power to elect a
majority of the board of directors of such corporation (whether or not any other
class of securities has or might have voting power by reason of the happening of
a contingency) are at the time owned or controlled directly or indirectly by
the Company or one or more Subsidiaries or by the Company and one or more
Subsidiaries.
1. Representations and Warranties. The Company represents and
------------------------------
warrants to each of the Underwriters and agrees with each Underwriter that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or to the
Company's knowledge threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain, and each such part, as amended or supplemented, if
applicable, will not contain, any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply, and, as amended or supplemented, if
applicable, will comply, in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section
1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information concerning any
Underwriter furnished to the Company in writing by such Underwriter
expressly for use therein or (B) to that part of the Registration Statement
that constitutes the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), of the trustee referred to in the Registration Statement.
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(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the financial condition of the Company and its Subsidiaries, taken as a
whole.
(d) The Company has no Significant Subsidiaries.
(e) Kirin-Amgen, Inc. has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the power and authority to own its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the financial condition of the Company and its
Subsidiaries, taken as a whole.
(f) This Agreement has been duly authorized, executed and deliv-
ered by the Company.
(g) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due execution and delivery
thereof by the trustee thereunder) is a valid and binding agreement of the
Company, enforceable in accordance with its terms except (i) to the extent
that a waiver of rights under any usury laws may be unenforceable and as
the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, moratorium or other similar laws now or hereafter in
effect relating to or affecting the enforcement of creditors' rights and
remedies generally and (ii) as rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability, whether or not enforcement is sought at law or in equity.
(h) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will be entitled to the benefits of the
Indenture and will be valid and legally binding obligations of the Company,
enforceable in accordance with their terms except (i) to the extent that a
waiver of rights under any usury laws may be unenforce-
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able and as the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to or affecting the enforcement of creditors'
rights and remedies generally and (ii) as rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability, whether or not enforcement is sought at law or in
equity.
(i) The execution and delivery by the Company of, and the perfor-
xxxxx by the Company of its obligations under, this Agreement, the
Indenture and the Offered Securities (A) will not contravene any provision
of (i) the certificate of incorporation or by-laws of the Company, (ii) any
agreement or other instrument binding upon the Company, Kirin-Amgen, Inc.
or their respective business or assets that is material to the financial
condition of the Company and its Subsidiaries, taken as a whole, (iii)
applicable law and (iv) any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company, Kirin-Amgen,
Inc. or their respective business or assets, and (B) no consent, approval
or authorization or order of or qualification with any governmental body
or agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture or the Offered Securities except such
as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Offered Securities.
(j) There has not been any material adverse change or any
prospective material adverse change in the financial condition or in the
earnings of the Company and its Subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(k) There are no legal or governmental proceedings pending or to
the Company's knowledge threatened to which the Company or Kirin-Amgen,
Inc. is a party or to which any of their respective properties is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or any contracts or other documents
that are required to be filed as exhibits to the Registration Statement
that are not filed as required.
(l) Each of the Company and Kirin-Amgen, Inc. has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain
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or file would not have a material adverse effect on the financial condition
of the Company and its Subsidiaries, taken as a whole.
(m) The Company is not an "investment company" or an entity "con-
trolled by" an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(n) To the Company's knowledge, each of the Company and Kirin-
Amgen, Inc. owns or possesses, or can acquire on reasonable terms, all
patents, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks
and trade names which are currently employed by them in connection with the
business now operated by them and which, in each case, are material to the
financial condition of the Company and its Subsidiaries, taken as a whole,
and, except as described in the Registration Statement or the Prospectus,
neither the Company nor Kirin-Amgen, Inc. has received any notice of
infringement with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in any material adverse change in the financial condition of
the Company and its Subsidiaries, taken as a whole.
(o) Neither the Company nor Kirin-Amgen, Inc. is in violation of
any federal or state law or regulation relating to occupational safety and
health or to the storage, handling or transportation of hazardous or toxic
materials and each of the Company and Kirin-Amgen, Inc. has received all
permits, licenses or other approvals required of them under applicable
federal and state occupational safety and health and environmental laws and
regulations to conduct their respective businesses, and each of the Company
and Kirin-Amgen, Inc. is in compliance with all terms and conditions of any
such permit, license or approval, except any such violation of law or
regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals which would not, singly or in the aggregate,
result in a material adverse change in the financial condition of the
Company and its Subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus.
2. Public Offering. The Company is advised by the Underwriters that
---------------
the Underwriters propose to make a public offering of their respective portions
of the Offered Securities as soon after this Agreement has been entered into as
in the Underwriters' judgment is advisable. The terms of the public offering of
the Offered Securities are set forth in the Prospectus.
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3. Purchase and Delivery. Except as otherwise provided in this
---------------------
Section 3, payment for the Offered Securities shall be made by wire transfer of
same day funds at the time and place set forth in this Agreement, upon delivery
to the respective accounts of the several Underwriters of the Offered
Securities, represented by a fully registered global security and registered in
the name of The Depository Trust Company or its nominee, with any transfer taxes
payable in connection with the transfer of the Offered Securities to the Un-
derwriters duly paid.
4. Conditions to Closing. The several obligations of the
---------------------
Underwriters hereunder are subject to the following conditions:
(a) (i) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have occurred
any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change in the
financial condition or in the earnings of the Company and its
Subsidiaries, taken as a whole, from that set forth in the Prospectus,
that, in the judgment of the Underwriters, is material and adverse and
that makes it, in the judgment of the Underwriters, impracticable to
market the Offered Securities on the terms and in the manner
contemplated in the Prospectus; and
(iii) the Underwriters shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (i) above
and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct in all
material respects as of the Closing Date and that the Company has
complied in all material respects with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
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(b) The Underwriters shall have received on the Closing Date an
opinion of counsel for the Company (who may be an employee of the Company),
dated the Closing Date, to the effect set forth in Exhibit A.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx & Xxxxxxx, special counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit B.
(d) The Underwriters shall have received on the Closing Date an
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for
the Underwriters, dated the Closing Date, to the effect set forth in
Exhibit C.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx & Xxxxxxx L.L.P., special counsel for the Company, dated
the Closing Date, in form and substance reasonably acceptable to Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Underwriters, with
respect to the disclosure contained in the Prospectus relating to the False
Claims Act Matter (as defined in Exhibit B hereto).
(f) The Underwriters shall have received at the time of the
execution of this Agreement a letter, dated the date hereof, in form and
substance satisfactory to the Underwriters, from Ernst & Young LLP, the
Company's independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Prospectus.
(g) The Registration Statement shall have become effective and on
the Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act or
proceedings therefor initiated or, to the knowledge of the Company or the
Underwriters, threatened by the Commission.
(h) The Underwriters shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to the
Underwriters, from Ernst & Young LLP, to the effect that they reaffirm the
statements made in the letter furnished pursuant to paragraph (f) of this
Section, except that the specified date referred to shall be a date not
more than two business days prior to the Closing Date.
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5. Covenants of the Company. In further consideration of the
------------------------
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Underwriters, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the Prospectus,
any documents incorporated by reference therein and any supplements and
amendments thereto or to the Registration Statement as the Underwriters may
reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, to furnish to the
Underwriters a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which the Underwriters
reasonably object.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the written opinion of counsel for
the Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein not misleading in the light of the
circumstances when the Prospectus is delivered to a purchaser, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses the Underwriters will furnish
to the Company) to which Offered Securities may have been sold by the
Underwriters and to any other dealer upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not be misleading in the light of the
circumstances when the Prospectus is delivered to a purchaser, or so that
the Prospectus, as so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriters shall reasonably request and to pay all expenses (including
reasonable fees and disburse ments of counsel) in connection with such
qualification.
(e) To make generally available to the Company's security holders
and to the Underwriters as soon as practicable an earning statement
covering a 12-month period beginning on the first day of the first full
fiscal quarter after the date of this Agreement, which earning statement
shall satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
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(f) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, not to offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company
substantially similar to the Offered Securities (other than (i) the Offered
Securities and (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Underwriters.
6. Indemnification and Contribution. The Company agrees to
--------------------------------
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration State-
ment (as amended if the Company shall have furnished any amendments thereto), or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
caused by any untrue statement of material fact contained in any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or the omission or
alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter expressly for use
therein; provided, however, that the foregoing indemnity agreement with respect
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to any preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased Offered Securities, or any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Offered Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company by such Underwriter in writing expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
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In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would, in the written opinion of independent
legal counsel, be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, in
the case of parties indemnified pursuant to the second preceding paragraph, and
by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph
in this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriters from the offering of the
Offered Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion
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as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Underwriters in connection with the offering of the Offered Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Offered Securities (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bear to the aggregate public offering price of the
Offered Securities. The relative fault of the Company and of the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
allegedly untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the respective principal amount of Offered Securities purchased by each of
such Underwriters and not joint. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 6
and the representations and warranties of the Company contained herein shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation
11
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its directors or officers or any
person controlling the Company and (iii) delivery of the Offered Securities to
the Underwriters.
7. Termination. This Agreement shall be subject to termination in
-----------
the Underwriters' absolute discretion, by notice given to the Company, if (a)
after the execution and delivery of this Agreement and prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange or the National Association of Securities Dealers, Inc., (ii) trading
of any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Underwriters, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event, singly or together with any other such event, makes it, in the judgment
of the Underwriters, impracticable to market the Offered Securities on the terms
and in the manner contemplated in the Prospectus.
8. Defaulting Underwriters. If on the Closing Date any one or more
-----------------------
of the Underwriters shall fail or refuse to purchase Offered Securities that it
has or they have agreed to purchase on such date, and the aggregate amount of
Offered Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate amount
of the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount of Offered
Securities set forth opposite their respective names above bears to the
aggregate amount of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Underwriters
may specify, to purchase the Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Offered Securities that any
--------
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 8 by an amount in excess of one-ninth of such amount of
Offered Securities without the written consent of such Underwriter. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Offered Securities and the aggregate amount of Offered Securities with respect
to which such default occurs is more than one-tenth of the aggregate amount of
Offered Securities to be purchased on such date, and arrangements satisfactory
to the Underwriters and the Company for the purchase of such Offered Securities
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company.
In any such case either the Underwriters or the Company shall have the right to
postpone the Closing Date but
12
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the Offered
Securities.
9. Miscellaneous. This Agreement may be signed in any number of
-------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
10. Headings. The headings of the sections of this Agreement have
--------
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
13
Exhibit A
Opinion of Xxxxxx X. Xxxxxxxx,
General Counsel for the Company
The opinion of Xxxxxx X. Xxxxxxxx, General Counsel for the Company, to
be delivered pursuant to Section 4(b) of the Underwriting Agreement, shall be to
the effect that:
(i) the Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware, with
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus. Based solely on certificates from public officials, such
counsel shall confirm that the Company is qualified to do business in the
states set forth on Annex A;
(ii) based solely on certificates from public officials, such
counsel shall confirm that Kirin-Amgen, Inc. has been duly incorporated and
is validly existing and in good standing under the laws of the State of
Delaware, and, based solely on the Certificate of Incorporation of Kirin-
Amgen, Inc., has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus;
(iii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(iv) the execution and delivery by the Company of, and the
issuance and sale of the Offered Securities pursuant to, the Underwriting
Agreement (A) will not contravene (i) the certificate of incorporation or
by-laws of the Company or (ii) any agreement or other instrument identified
as an exhibit to the Company's most recent annual report on Form 10-K, and
(B) to such counsel's knowledge (i) will not contravene any provision of
applicable law, (ii) will not contravene any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company, Kirin-Amgen, Inc. or their respective business or assets, and
(iii) no consent, approval or authorization or order of or qualification
with any governmental body or agency is required for the issuance and sale
of the Offered Securities by the Company under the Underwriting Agreement,
except such as are specified and have
A-1
been obtained and as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Offered
Securities;
(v) to such counsel's knowledge, the statements in "Item 3 -
Legal Proceedings" of the Company's most recent annual report on Form 10-K
incorporated by reference in the Prospectus, insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, are accurate in all material respects;
(vi) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company is a party or to
which any of the properties of the Company is subject that are required to
be described in the Registration Statement or the Prospectus and are not so
described or of any contracts or other documents that are required to be
filed as exhibits to the Registration Statement that are not filed as
required; and
(vii) each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for financial
statements, schedules and other financial data included or incorporated
therein as to which such counsel need not express any opinion) complied
when so filed as to form in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company and
representatives of the Underwriters, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and, although
such counsel does not pass upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus and has not made any independent check
or verification thereof, during the course of such participation (relying as to
materiality to a large extent upon the statements of officers and other
representatives of the Company), no facts came to such counsel's attention that
caused such counsel to believe that the Registration Statement, at the time it
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its date and as
of the date hereof, contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need not express any belief with respect to the
financial statements,
A-2
schedules and other financial data included in the Registration Statement or the
Prospectus or incorporated therein by reference or with respect to the Form T-1.
Counsel for the Company may limit his opinion to the laws of the
States of Delaware and California, and the federal laws of the United States;
provided, that with respect to the laws of the State of California such counsel
--------
may either (A) rely upon an opinion or opinions (in the form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel or counsels
admitted to practice law in the State of California or (B) state in his opinion
that his opinion is based on the advice of counsel or counsels who are admitted
to practice law in the State of California; provided, further, that such counsel
-------- -------
or counsels may be employees of the Company. If such counsel shall rely on the
opinion of another counsel with regard to the laws of the State of California,
the opinion of such counsel for the Company shall state that the opinion or
opinions, as the case may be, of any other such counsel or counsels is or are in
form satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon.
A-3
ANNEX A
-------
California North Carolina
Florida Ohio
Massachusetts Pennsylvania
Michigan Tennessee
Missouri Texas
New Jersey Virginia
New York Wisconsin
A-4
Exhibit B
Opinion of Xxxxxx & Xxxxxxx,
Special Counsel for the Company
The opinion of counsel to the Company, to be delivered pursuant to
Section 4(c) of the Underwriting Agreement shall be to the effect that:
(i) the Indenture has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery by the
Trustee) is the legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms;
(ii) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, will be entitled to the
benefits provided by the Indenture and will be a legally valid and binding
obligation of the Company, enforceable against the Company in accordance
with their terms;
(iii) the statements in the Prospectus Supplement under the caption
"Description of the Debentures" and in the Basic Prospectus under the
caption "Description of Debt Securities" insofar as such statements
constitute summaries of the legal matters or documents referred to therein,
are accurate in all material respects; and
(iv) the Registration Statement and Prospectus (except for financial
statements, schedules and other financial data included or incorporated
herein as to which such counsel need not express any opinion), comply as to
form in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
In addition, we have participated in conferences with officers and
other representatives of the Company, representatives of the independent public
accountants for the Company and representatives of the Underwriters, at which
the litigation matter filed under the qui tam provisions of the Federal False
Claims Act (the "False Claims Act Matter") set forth in "Item 3 - Legal
Proceedings" of the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 filed with the Commission on March 24, 1997 (the "Form 10-K")
were discussed and, although we are not passing upon, and do not assume any
responsi-
B-1
bility for, the accuracy, completeness or fairness of the statements contained
in the Form 10-K with respect to the False Claims Act Matter and have not made
any independent check or verification thereof, during the course of such
participation (relying as to materiality to the extent we deemed appropriate
upon the statements of officers and other representatives of the Company), no
facts came to our attention that caused us to believe that the description of
the False Claims Act Matter included in Item 3 of the Form 10-K, as of the date
of the Prospectus Supplement and as of the date hereof, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; it being understood,
except with respect to the False Claims Act Matter set forth in the Form 10-K
and incorporated by reference in the Prospectus, that we express no belief with
respect to the Registration Statement or the Prospectus.
Counsel for the Company may limit their opinion to the laws of the
States of Delaware, California and New York and the federal laws of the United
States. Such counsel's opinion shall be subject to the following exceptions,
limitations and qualifications: (A) the effect of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; (B) the effect of general principles of equity, whether enforcement
is considered in a proceeding in equity or law, and the discretion of the court
before which any proceeding therefor may be brought; (C) the unenforceability
under certain circumstances under law or court decisions of provisions providing
for the indemnification of or contribution to a party with respect to a
liability where such indemnification or contribution is contrary to public
policy; (D) we express no opinion concerning the enforceability of the waiver of
rights or defenses contained in the Indenture; and (E) we express no opinion
with respect to whether the acceleration of the Offered Securities may affect
the collectibility of that portion of the stated principal amount thereof which
might be determined to constitute unearned interest thereon. With respect to
paragraph (iv) above, such counsel may state that such counsel's opinion assumes
that the statements made and incorporated by reference in the Prospectus and
Registration Statement are correct and complete.
B-2
Exhibit C
Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
Counsel for the Underwriters
The opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for
the Underwriters, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement shall be to the effect that:
(i) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(ii) the Indenture has been qualified under the Trust Indenture Act of
1939, as amended, and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding
at law or in equity);
(iii) the issuance and sale of the Offered Securities have been duly
authorized by the Company, and the Offered Securities, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company
enforceable in accordance with their terms except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding
at law or in equity);
(iv) The Registration Statement, as of its effective date, and the
Prospectus, as of its date, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Act and the
Rules and Regulations, except that in each case (A) we express no opinion
as to (i) the financial statements, schedules and other financial data
included or incorporated by reference therein or excluded therefrom, (ii)
the documents incorporated by reference therein or (iii) the exhibits to
the Registration Statement, including the Form T-1, (B) and we do not
assume any
C-1
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus.
In addition, we have participated in conferences with officers and
representatives of the Company, counsel for the Company, representatives of the
independent accountants of the Company and you at which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and have made no independent check or
verification thereof, on the basis of the foregoing, no facts have come to our
attention that have led us to believe that the Registration Statement, at the
time it became effective, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of its
date and as of the date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, except that we express no opinion or belief with respect
to (i) the financial statements, schedules and other financial data included
therein or excluded therefrom, (ii) the documents incorporated by reference
therein or (iii) the exhibits to the Registration Statement, including the Form
T-1.
C-2
