Exhibit 1(a)
XXXXXXX-XXXXX SQUIBB COMPANY
[TITLE OF SECURITIES]
-------------
UNDERWRITING AGREEMENT
............., 20...
[Names of Representatives]
As representatives of the several
Underwriters named in Schedule I hereto,
c/o [address].
Ladies and Gentlemen:
From time to time Xxxxxxx-Xxxxx Squibb Company, a Delaware corporation
(the "Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (such firms
constituting the "Underwriters") an aggregate of $.......... principal amount of
its [CONVERTIBLE] debt securities (the "Securities") specified above, [TO WHICH
WARRANTS FOR THE PURCHASE OF SHARES OF [PREFERRED STOCK] [COMMON STOCK, $0.1%
PAR VALUE] ("STOCK") OF THE COMPANY (THE "WARRANTS") WILL BE ATTACHED,] less the
principal amount of Securities covered by Delayed Delivery Contracts, if any, as
provided in Section 3 hereof and as may be specified in Schedule II hereto (any
Securities to be covered by Delayed Delivery Contracts are herein sometimes
referred to as "Contract Securities" and the Securities to be purchased by the
Underwriters (after giving effect to the deduction, if any, for Contract
Securities) are herein sometimes referred to as "Underwriters' Securities").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Two registration statements on Form S-3 (File Nos. 333-49227 and
333-65444) (the "Initial Registration Statements") in respect of the
Securities[,THE WARRANTS,] [AND SHARES OF THE STOCK ISSUABLE UPON
[CONVERSION,] [EXERCISE] THEREOF] have been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration
Statements and any post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to the Representatives and,
excluding exhibits to the Initial Registration Statements, but including
all documents incorporated by reference in the prospectus contained in the
latest registration statement, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statements or document
incorporated by reference therein has heretofore been filed or transmitted
for filing with the Commission (other than prospectuses filed pursuant to
Rule 424(b) of the rules and regulations of the Commission under the Act,
each in the form heretofore delivered to the Representatives); and no stop
order suspending the effectiveness of any Initial Registration Statement,
any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statements or filed with the Commission pursuant to Rule
424(a) under the Act, is hereinafter called a "Preliminary Prospectus");
the various parts of the Initial Registration Statements, each as amended
to the date of this Agreement, any post-effective amendment thereto and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the Initial Registration Statements at the time such part of
the Initial Registration Statements became effective but excluding Form
T-1, each as amended at the time such part of the Initial Registration
Statements became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are hereinafter
collectively called the "Registration Statement"; the prospectus relating
to the Securities, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Initial Registration Statement shall be deemed to refer
to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in the form in which it is filed with the Commission pursuant
to Rule 424(b) under the Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference therein as of the date
of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
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; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the
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Company by an Underwriter through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an 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; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities;
(d) Neither the Company nor any of its Significant Subsidiaries, as
defined in Rule 1-02 (w) of Regulation S-X under the Securities Act (the
"Significant Subsidiaries") has sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change
in the capital stock or long-term debt of the Company or any of its
Significant Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) The Securities have been duly authorized, and, when issued, duly
authenticated pursuant to the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement and, in the case of any
Contract Securities, pursuant to Delayed Delivery Contracts (as defined in
Section 3 hereof) will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the indenture, [DATED AS OF
JUNE 1, 1993, BETWEEN THE COMPANY AND THE CHASE MANHATTAN BANK, AS
TRUSTEES (THE "TRUSTEE")] [SUBORDINATED INDENTURE] (the "Indenture"),
under which they are to be issued, which is substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has been
duly authorized and duly qualified under
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the Trust Indenture Act and, at the Time of Delivery (as defined in
Section 4 hereof), the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture conforms, and the Securities
will conform to the descriptions thereof contained in the Prospectus as
amended or supplemented;
(h) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and, when executed and delivered by
the Company and the purchaser named therein, will constitute a valid and
legally binding agreement of the Company enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and any
Delayed Delivery Contracts conform to the description thereof in the
Prospectus;
[( ) WHEN THE SECURITIES ARE DELIVERED AND PAID FOR PURSUANT TO THIS
AGREEMENT, SUCH SECURITIES WILL BE CONVERTIBLE INTO SHARES OF STOCK OF THE
COMPANY IN ACCORDANCE WITH THEIR TERMS; THE SHARES OF STOCK INITIALLY
ISSUABLE UPON CONVERSION OF SUCH SECURITIES HAVE BEEN DULY AUTHORIZED AND
RESERVED FOR ISSUANCE UPON SUCH CONVERSION AND, WHEN ISSUED UPON SUCH
CONVERSION, WILL BE VALIDLY ISSUED, FULLY PAID AND NON-ASSESSABLE; THE
OUTSTANDING SHARES OF STOCK HAVE BEEN DULY AUTHORIZED AND VALIDLY ISSUED,
ARE FULLY PAID AND NON-ASSESSABLE AND CONFORM TO THE DESCRIPTION THEREOF
CONTAINED IN THE PROSPECTUS; AND THE STOCKHOLDERS OF THE COMPANY HAVE NO
PREEMPTIVE RIGHTS WITH RESPECT TO THE STOCK;]
[( ) THE WARRANTS HAVE BEEN DULY AUTHORIZED AND, WHEN ISSUED AND
DELIVERED PURSUANT TO THIS AGREEMENT AND COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED IN THE WARRANT AGREEMENT, WILL HAVE BEEN DULY EXECUTED,
COUNTERSIGNED, ISSUED AND DELIVERED AND WILL CONSTITUTE VALID AND LEGALLY
BINDING OBLIGATIONS OF THE COMPANY ENTITLED TO THE BENEFITS PROVIDED BY
THE WARRANT AGREEMENT TO BE DATED AS OF ............, 20.. (THE "WARRANT
AGREEMENT") BETWEEN THE COMPANY AND ..............., AS WARRANT AGENT (THE
"WARRANT AGENT"), UNDER WHICH THEY ARE TO BE ISSUED, WHICH WILL BE
SUBSTANTIALLY IN THE FORM FILED AS AN EXHIBIT TO THE REGISTRATION
STATEMENT; THE WARRANT AGREEMENT HAS BEEN DULY AUTHORIZED AND, WHEN
EXECUTED BY THE COMPANY AND THE WARRANT AGENT, WILL CONSTITUTE A VALID AND
LEGALLY BINDING INSTRUMENT ENFORCEABLE IN ACCORDANCE WITH ITS TERMS,
SUBJECT, AS TO ENFORCEMENT, TO BANKRUPTCY, INSOLVENCY, REORGANIZATION AND
OTHER LAWS OF GENERAL APPLICABILITY RELATING TO OR AFFECTING CREDITORS'
RIGHTS AND TO GENERAL EQUITY PRINCIPLES; AND THE WARRANTS AND THE WARRANT
AGREEMENT CONFORM TO THE DESCRIPTIONS THEREOF IN THE PROSPECTUS;]
(i) The issue and sale of the Securities [AND THE WARRANTS] and the
compliance by the Company with all of the provisions of the Securities,
[THE WARRANTS,] the Indenture, [THE WARRANT AGREEMENT,] each of the
Delayed Delivery Contracts, and this Agreement, and the consummation of
the transactions herein and therein contemplated will not (i) conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement
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or other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets of
the Company is subject, except for such breaches, violations and defaults
that individually and in the aggregate would not reasonably be expected to
have a Material Adverse Effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries (a "Material Adverse Effect"), (ii) result in
any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company, or (iii) result in any violation of any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties, except for
such breaches, violations and defaults that individually and in the
aggregate would not reasonably be expected to have a Material Adverse
Effect; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities [OR THE WARRANTS] or the
consummation by the Company of the transactions contemplated by this
Agreement[, OR THE WARRANT AGREEMENT,] or the Indenture or any Delayed
Delivery Contract, except such as have been, or will have been prior to
the Time of Delivery, obtained under the Act and the Trust Indenture Act,
or which if not obtained would not have a Material Adverse Effect on the
consummation by the Company of the transactions contemplated by this
Agreement, and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Securities [OR
WARRANTS] by the Underwriters;
(j) The statements set forth in the Prospectus under the caption
"Description of the Debt Securities" [AND "DESCRIPTION OF WARRANTS"] [AND
"DESCRIPTION OF [COMMON STOCK] [PREFERRED STOCK]"], insofar as they
purport to constitute a summary of the terms of the Securities[, THE
WARRANTS] [AND THE STOCK], and under the captions "Plan of Distribution"
and "Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair;
(k) Neither the Company nor any of its Significant Subsidiaries is
in violation of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound, except for such
violations that individually and in the aggregate would not reasonably be
expected to have a Material Adverse Effect;
(l) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
Significant Subsidiaries is a party or of which any property of the
Company or any of its Significant Subsidiaries is the subject which, if
determined adversely to the Company or any of its Significant
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(m) Except as described in the Prospectus, to the Company's
knowledge, the Company and its Significant Subsidiaries own, possess or
have the right to employ sufficient patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
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information, software, systems or procedures), trademarks, service marks
and trade names, inventions, computer programs, technical data and
information (collectively, the "Intellectual Property Rights") reasonably
necessary to conduct their businesses as now conducted. Neither the
Company nor any of its Significant Subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the Intellectual Property Rights except as would not reasonably be
expected to, individually or in the aggregate, result in a Material
Adverse Effect, whether or not arising from transactions in the ordinary
course of business. Except as described in the Prospectus, to the
Company's knowledge the use of the Intellectual Property Rights in
connection with the business and operations of the Company and its
subsidiaries does not infringe on the rights of any person, except as
could not reasonably be expected to individually or in the aggregate
result in a Material Adverse Effect;
(n) The Company and each of the Significant Subsidiaries is not in
violation of any statute, or any rule, regulation, decision or order of
any governmental agency or body or any court relating to the use, disposal
or release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), does not own or operate
any real property which to its knowledge is contaminated with any
substance that is subject to any environmental laws, is not to its
knowledge liable for any off-site disposal or contamination pursuant to
any environmental laws, and is not subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would have, individually or in the aggregate, a Material Adverse Effect;
and the Company is not aware of any pending investigation which could
reasonably be expected to lead to such a claim;
(o) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(p) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(q) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price of .....% of the principal amount thereof, plus accrued
interest, if any, from ...................., 20...... to the Time of Delivery
hereunder, the principal amount of Securities set forth opposite the name of
such Underwriter in Schedule I hereto [TO WHICH WARRANTS WILL BE ATTACHED,] less
such Underwriter's portion of Contract Securities, if any, determined as
provided in Section 3 hereof.
3. Upon the authorization by the Representatives of the release of such
Underwriters' Securities, the several Underwriters propose to offer such
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
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[THE COMPANY HEREBY AUTHORIZES THE UNDERWRITERS TO SOLICIT OFFERS TO
PURCHASE SECURITIES FROM THE COMPANY PURSUANT TO DELAYED DELIVERY CONTRACTS
(HEREIN CALLED "DELAYED DELIVERY CONTRACTS"), SUBSTANTIALLY IN THE FORM OF ANNEX
III ATTACHED HERETO BUT WITH SUCH CHANGES THEREIN AS THE REPRESENTATIVES AND THE
COMPANY MAY AUTHORIZE OR APPROVE. THE UNDERWRITERS WILL ENDEAVOR TO MAKE SUCH
ARRANGEMENTS, AND AS COMPENSATION THEREFOR THE COMPANY WILL PAY TO THE
REPRESENTATIVES, FOR THE ACCOUNTS OF THE UNDERWRITERS, AT THE TIME OF DELIVERY
(AS DEFINED IN SECTION 4 HEREOF), A COMMISSION OF ...% OF THE PRINCIPAL AMOUNT
OF SECURITIES FOR WHICH DELAYED DELIVERY CONTRACTS HAVE BEEN MADE. DELAYED
DELIVERY CONTRACTS ARE TO BE WITH INVESTORS OF THE TYPES DESCRIBED IN THE
PROSPECTUS AND SUBJECT TO OTHER CONDITIONS THEREIN SET FORTH. THE UNDERWRITERS
WILL NOT HAVE ANY RESPONSIBILITY WITH RESPECT TO THE VALIDITY OR PERFORMANCE OF
ANY DELAYED DELIVERY CONTRACTS.
THE PRINCIPAL AMOUNT OF CONTRACT SECURITIES TO BE DEDUCTED FROM THE
PRINCIPAL AMOUNT OF SECURITIES TO BE PURCHASED BY EACH UNDERWRITER AS SET FORTH
IN SCHEDULE I HERETO SHALL BE, IN EACH CASE, THE PRINCIPAL AMOUNT OF CONTRACT
SECURITIES WHICH THE COMPANY HAS BEEN ADVISED BY THE REPRESENTATIVES HAVE BEEN
ATTRIBUTED TO SUCH UNDERWRITER, PROVIDED THAT, IF THE COMPANY HAS NOT BEEN SO
ADVISED, THE AMOUNT OF CONTRACT SECURITIES TO BE SO DEDUCTED SHALL BE, IN EACH
CASE, THAT PROPORTION OF CONTRACT SECURITIES WHICH THE PRINCIPAL AMOUNT OF
SECURITIES TO BE PURCHASED BY SUCH UNDERWRITER UNDER THIS AGREEMENT BEARS TO THE
TOTAL PRINCIPAL AMOUNT OF THE SECURITIES (ROUNDED AS THE REPRESENTATIVES MAY
DETERMINE). THE TOTAL PRINCIPAL AMOUNT OF UNDERWRITERS' SECURITIES TO BE
PURCHASED BY ALL THE UNDERWRITERS PURSUANT HERETO SHALL BE THE TOTAL PRINCIPAL
AMOUNT OF SECURITIES SET FORTH IN SCHEDULE I HERETO LESS THE PRINCIPAL AMOUNT OF
THE CONTRACT SECURITIES. THE COMPANY WILL DELIVER TO THE REPRESENTATIVES NOT
LATER THAN 3:30 P.M., NEW YORK CITY TIME, ON THE THIRD BUSINESS DAY PRECEDING
THE TIME OF DELIVERY (OR SUCH OTHER TIME AND DATE AS THE REPRESENTATIVES AND THE
COMPANY MAY AGREE UPON IN WRITING), A WRITTEN NOTICE SETTING FORTH THE PRINCIPAL
AMOUNT OF CONTRACT SECURITIES.]
4. (a) The Underwriters' Securities to be purchased by each Underwriter
hereunder will be represented by one or more definitive global Securities in
book-entry form which will be deposited by or on behalf of the Company with The
Depository Trust Company ("DTC") or its designated custodian. The Company will
deliver the Securities to the Representatives, for the account of each
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the account
specified by the Company to the Representatives at least forty-eight hours in
advance, by causing DTC to credit the Securities to the account of the
Representatives at DTC. The Company will cause the certificates representing the
Securities to be made available to the Representatives for checking at least
twenty-four hours prior to the Time of Delivery (as defined below) at the office
of DTC or its designated custodian (the "Designated Office"). The time and date
of such delivery and payment shall be 9:30 a.m., New York City time, on
....................., 20.. or such other time and date as the Representatives
and the Company may agree upon in writing. Such time and date are herein called
the "Time of Delivery". Concurrently with the delivery and payment of the
Underwriters' Securities, the Company will deliver to the Representatives for
the accounts of the Underwriters, a check payable to the order of the
Representatives in the amount of the compensation payable by the Company to the
Underwriters in respect of any Delayed Delivery Contracts as provided in Section
3 hereof.
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(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Securities and any additional documents requested by the Underwriters
pursuant to Section 7(j) hereof, will be delivered at the offices of
[UNDERWRITERS' COUNSEL] (the "Closing Location"), and the Securities will be
delivered at the Designated Office, all at the Time of Delivery. A meeting will
be held at the Closing Location at ......... p.m., New York City time, on the
New York Business Day next preceding the Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes of this
Section 4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New York
City are generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters of any Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Securities in a form approved by the Representatives and
to file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if applicable,
such earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of this Agreement and prior to the
Time of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the Representatives
with copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Securities, and during such same period
to advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Securities, of the suspension of
the qualification of such Securities [ OR THE WARRANTS OR THE SHARES OF
STOCK ISSUABLE UPON EXERCISE OF THE WARRANTS] [OR THE SHARES OF STOCK
ISSUABLE UPON CONVERSION OF THE SECURITIES] for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities[, THE
WARRANTS AND THE SHARES OF STOCK ISSUABLE UPON EXERCISE OF THE WARRANTS]
[AND THE SHARES OF STOCK ISSUABLE UPON CONVERSION OF THE SECURITIES] for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to
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permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of such
Securities, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
(c) Prior to [5:00 P.M., NEW YORK CITY TIME, ON THE NEW YORK
BUSINESS DAY NEXT SUCCEEDING THE DATE OF THIS AGREEMENT] and from time to
time thereafter to the extent delivery of a Prospectus is required, to
furnish the Underwriters with written and electronic copies of the
Prospectus in New York City as amended or supplemented in such quantities
as the Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Securities[, THE WARRANTS AND THE SHARES OF STOCK ISSUABLE UPON
EXERCISE OF THE WARRANTS] [AND THE SHARES OF STOCK ISSUABLE UPON
CONVERSION OF THE SECURITIES] and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period as a Prospectus is required to be
delivered to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many written and electronic copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the Time of Delivery, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company which
mature more than one year after such Time of Delivery and which are
substantially similar to such Securities [OR THE STOCK, INCLUDING BUT NOT
LIMITED TO ANY SECURITIES THAT ARE CONVERTIBLE INTO OR EXCHANGEABLE FOR,
OR THAT REPRESENT THE RIGHT TO RECEIVE, STOCK OR ANY SUCH SUBSTANTIALLY
SIMILAR SECURITIES (OTHER THAN PURSUANT TO EMPLOYEE STOCK OPTION PLANS
EXISTING ON, OR UPON THE CONVERSION OR EXCHANGE OF CONVERTIBLE OR
EXCHANGEABLE SECURITIES OUTSTANDING AS OF, THE DATE OF THIS AGREEMENT)],
without the prior written consent of the Representatives; [AND]
(f) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by [10:00 P.M., WASHINGTON, D.C. TIME, ON THE
DATE OF THIS AGREEMENT,] and the Company shall at the time of filing
either pay to the Commission the filing fee for the
9
Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act [; AND] [.].
[( ) TO RESERVE AND KEEP AVAILABLE AT ALL TIMES, FREE OF PREEMPTIVE
RIGHTS, SHARES OF STOCK FOR THE PURPOSE OF ENABLING THE COMPANY TO SATISFY
ANY OBLIGATION TO ISSUE SHARES OF ITS STOCK UPON [CONVERSION OF THE
SECURITIES] [EXERCISE OF THE WARRANTS]; AND]
[( ) TO USE ITS BEST EFFORTS TO LIST, SUBJECT TO NOTICE OF ISSUANCE,
THE SECURITIES [AND THE WARRANTS] [AND THE SHARES OF STOCK [ISSUABLE UPON
CONVERSION OF THE SECURITIES] [ISSUABLE UPON EXERCISE OF THE WARRANTS]] ON
THE NEW YORK STOCK EXCHANGE AND THE PACIFIC EXCHANGE, INC.]
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities [, THE WARRANTS AND THE SHARES OF STOCK ISSUABLE
UPON EXERCISE OF THE WARRANTS] [AND THE SHARES OF STOCK ISSUABLE UPON CONVERSION
OF THE SECURITIES] under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, any Indenture, [THE WARRANT AGREEMENT,] any Delayed Delivery
Contracts, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities [AND THE WARRANTS];
(iii) all expenses in connection with the qualification of the Securities[, THE
WARRANTS AND THE SHARES OF STOCK ISSUABLE UPON EXERCISE OF THE WARRANTS] [AND
THE SHARES OF STOCK ISSUABLE UPON CONVERSION OF THE SECURITIES] for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and Legal Investment
Surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities [AND THE WARRANTS]; (vi) the cost of preparing the Securities [AND
THE WARRANTS]; (vii) the fees and expenses of any Trustee and any agent of any
Trustee and the fees and disbursements of counsel for any Trustee in connection
with any Indenture and the Securities; [(viii) THE FEES AND EXPENSES OF THE
WARRANT AGENT AND ANY AGENT OF THE WARRANT AGENT AND THE FEES AND DISBURSEMENTS
OF COUNSEL FOR THE WARRANT AGENT IN CONNECTION WITH THE WARRANT AGREEMENT AND
THE WARRANTS;] and (ix) all other costs and expenses incident to the performance
of its obligations hereunder and under any Delayed Delivery Contracts which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 8 and 12 hereof,
the Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Securities [AND
THE WARRANTS] by them, and any advertising expenses connected with any offers
they may make.
7. The obligations of the Underwriters hereunder shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated by reference
herein are, at and as of the Time of
10
Delivery, true and correct, the condition that the Company shall have performed
all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus as amended or supplemented shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company has elected to rely upon
Rule 462(b), the Rule 462(b) Registration Statement shall have become effective
by [10:00 P.M., WASHINGTON, D.C. TIME, ON THE DATE OF THIS AGREEMENT]; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated the Time of Delivery,
with respect to the matters covered in paragraphs (i), (ii), (iii), (iv), (v),
(vi), (vii), (viii) and (ix) of subsection (c) below as well as such other
related matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(c) Cravath, Swaine & Xxxxx, special counsel for the Company, shall have
furnished to the Representatives their written opinions, dated the Time of
Delivery, in form and substance satisfactory to the Representatives, to the
effect that:
(i) Based solely on its review of a certificate from the
Secretary of State of Delaware, the Company is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus
as amended or supplemented;
(ii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iii) The Securities have been duly authorized; the
Underwriters' Securities have been duly executed and delivered and,
when duly authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Indenture; the Contract Securities, if any,
when executed, authenticated, issued and delivered pursuant to the
Indenture and Delayed Delivery Contracts, if any, will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture; and the Securities and the
Indenture conform to the descriptions thereof in the Prospectus as
amended or supplemented;
[( ) THE WARRANTS HAVE BEEN DULY AUTHORIZED, EXECUTED, ISSUED
AND DELIVERED AND, WHEN COUNTERSIGNED BY THE WARRANT AGENT AS
PROVIDED IN THE WARRANT AGREEMENT, WILL CONSTITUTE VALID AND LEGALLY
BINDING OBLIGATIONS OF THE COMPANY ENTITLED TO THE BENEFITS PROVIDED
BY THE WARRANT AGREEMENT; THE WARRANT AGREEMENT HAS BEEN DULY
AUTHORIZED, EXECUTED AND DELIVERED BY THE PARTIES THERETO AND
CONSTITUTES A VALID AND LEGALLY BINDING INSTRUMENT ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS, SUBJECT, AS TO
11
ENFORCEMENT, TO BANKRUPTCY, INSOLVENCY, REORGANIZATION AND OTHER
LAWS OF GENERAL APPLICABILITY RELATING TO OR AFFECTING CREDITORS'
RIGHTS AND TO GENERAL EQUITY PRINCIPLES; AND THE WARRANT AGREEMENT
CONFORMS TO THE DESCRIPTION THEREOF IN THE PROSPECTUS;]
[( ) [THE SHARES OF STOCK [INITIALLY ISSUABLE UPON CONVERSION
OF THE SECURITIES] [INITIALLY ISSUABLE UPON EXERCISE OF THE
WARRANTS] HAVE BEEN DULY AND VALIDLY AUTHORIZED AND RESERVED FOR
ISSUANCE AND, WHEN ISSUED AND DELIVERED IN ACCORDANCE WITH THE
PROVISIONS OF THE [SECURITIES AND THE INDENTURE] [WARRANT
AGREEMENT], WILL BE DULY AND VALIDLY ISSUED AND FULLY PAID AND
NON-ASSESSABLE, AND WILL CONFORM TO THE DESCRIPTION OF THE STOCK
CONTAINED IN THE PROSPECTUS;]
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument of the Company, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and
the Indenture has been duly qualified under the Trust Indenture Act;
(v) The statements set forth in the Prospectus under the
caption "Description of the Debt Securities" [AND "DESCRIPTION OF
[COMMON STOCK] [PREFERRED STOCK]"] [AND "DESCRIPTION OF THE
WARRANTS"], insofar as they purport to constitute a summary of the
terms of the Securities[, THE WARRANTS] [AND THE STOCK] are
accurate, complete and fair;
(vi) In the event any of the Securities are to be purchased
pursuant to Delayed Delivery Contracts, each of such Delayed
Delivery Contracts has been duly authorized, executed and delivered
by the Company and, assuming such Delayed Delivery Contract has been
duly executed and delivered by the purchaser named therein,
constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and any Delayed Delivery
Contracts conform to the description thereof in the Prospectus as
amended or supplemented;
(vii) The Company is not an "investment company", as such term
is defined in the Investment Company Act;
(viii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; and
(ix) Although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (v) of this Section 7(c),
they have no reason to believe that, as of its effective date, the
Registration Statement, as most recently amended, or any
12
further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules
and information of a financial or accounting nature therein, as to
which such counsel need express no opinion) 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, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules and information
of a financial or accounting nature therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of the Time of
Delivery, either the Registration Statement or the Prospectus as
amended or supplemented or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and they
do not know of any amendment to the Registration Statement required
to be filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as
amended or supplemented or required to be described in the
Registration Statement or the Prospectus as amended or supplemented
which are not filed or incorporated by reference or described as
required;
(d) Xxxx X. XxXxxxxxxx, general counsel for the Company, shall have
furnished to the Representatives its written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Representatives, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Significant
Subsidiaries is a party or of which any property of the Company or
any of its Significant Subsidiaries is the subject which, if
determined adversely to the Company or any of its Significant
Subsidiaries, would individually or in the aggregate have a material
adverse effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its Significant
Subsidiaries; and, to the best of
13
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) Neither the Company nor any of its Significant
Subsidiaries is in violation of its By-laws or Certificate of
Incorporation or, to the best of such counsel's knowledge, in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which it is a party or by which it or any of its properties may
be bound, except for such violations and defaults that individually
and in the aggregate would not reasonably be expected to have a
Material Adverse Effect;
(v) The issue and sale of the Securities [AND WARRANTS] and
the compliance by the Company with all of the provisions of the
Securities, the Indenture, [THE WARRANT AGREEMENT,] each of the
Delayed Delivery Contracts, if any, this Agreement and the
consummation of the transactions herein and therein contemplated
will not (i) conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company
is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, except for such
breaches, violations and defaults that individually and in the
aggregate would not reasonably be expected to have a Material
Adverse Effect, (ii) result in any violation of the provisions of
the Certificate of Incorporation or By-laws of the Company or (iii)
result in any violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its
properties, except for such breaches, violations and defaults that
individually and in the aggregate would not reasonably be expected
to have a Material Adverse Effect;
(vi) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities [OR THE
WARRANTS] or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture [OR THE WARRANT
AGREEMENT] or any of such Delayed Delivery Contracts, except such as
have been obtained under the Act and the Trust Indenture Act [OR
SUCH AS MAY BE REQUIRED UNDER THE ACT IN CONNECTION WITH THE SHARES
OF STOCK ISSUABLE UPON [EXERCISE OF THE WARRANTS] [CONVERSION OF THE
SECURITIES], or which if not obtained would not have a Material
Adverse Effect on the consummation by the Company of the
transactions contemplated by this Agreement, and such consents,
approvals, authorizations, orders, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities [AND
THE WARRANTS] by the Underwriters;
(vii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules and information of a financial or
accounting nature therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
14
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of
such documents (other than the financial statements and related
schedules and information of a financial or accounting nature
therein, as to which such counsel need express no opinion), when
they became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, 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, in the
case of other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading; and
(viii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules and information
of a financial or accounting nature therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder; although such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Prospectus, such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules therein, as to
which such counsel need express no opinion) 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, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules and information
of a financial or accounting nature therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of the Time of
Delivery, either the Registration Statement or the Prospectus as
amended or supplemented or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules and information
of a financial or accounting nature therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and such counsel does not know
of any amendment to the Registration Statement required to be filed
or any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
15
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required;
(e) On the date of the Prospectus at a time prior to the execution of this
Agreement and at the Time of Delivery, the independent accountants of the
Company who have certified the consolidated financial statements of the Company
included or incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to the Representatives,
to the effect set forth in Annex II hereto, and with respect to such letter
dated the date of the Prospectus, as to such other matters as the
Representatives may reasonably request;
(f) (i) Neither the Company nor any of its Significant Subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior to the
date hereof any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended prior to the date hereof, and
(ii) since the respective dates as of which information is given in the
Prospectus as amended prior to the date hereof there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
Significant Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
Significant Subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date hereof, the effect of which, in any such
case described in clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Underwriters' Securities [AND
THE WARRANTS] on the terms and in the manner contemplated in the Prospectus as
first amended or supplemented;
(g) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(h) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Underwriters' Securities [AND THE WARRANTS] on the terms and in the
manner contemplated in the Prospectus;
16
(i) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses, on the New York Business
Day next succeeding the date of this Agreement;
[( ) THE SHARES OF STOCK ISSUABLE UPON [CONVERSION OF THE SECURITIES]
[EXERCISE OF THE WARRANTS] SHALL HAVE BEEN DULY LISTED, SUBJECT TO THE NOTICE OF
ISSUANCE, ON THE NEW YORK STOCK EXCHANGE AND THE PACIFIC EXCHANGE, INC.; AND]
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery a certificate or certificates of
officers of the Company satisfactory to the Representatives as to the accuracy
of the representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (e) of this Section and as to such
other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon 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, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; and provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Securities through the Representatives expressly for use in the Prospectus as
amended or supplemented; and provided, further, that the Company shall not be
liable to any Underwriter under the indemnity agreement in this subsection (a)
with respect to any Preliminary Prospectus to the extent that any such loss,
claim, damage or liability of such Underwriter results from the fact that such
Underwriter sold any Securities to a person as to whom it shall be established
that there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus (excluding documents incorporated by
reference) or of the Prospectus as then amended or supplemented (excluding
documents incorporated by reference) in any case where such delivery is required
by the Act if the Company had previously furnished copies thereof in sufficient
quantity to such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was identified in writing at such
time to such Underwriter and corrected in the Prospectus (excluding documents
incorporated by reference) or in the Prospectus as then amended or supplemented
(excluding documents incorporated by reference).
17
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon 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, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities [AND THE
18
WARRANTS] to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters Securities [AND THE WARRANTS] on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault 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 on the one hand
or such Underwriters on the other 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 and
equitable if contribution pursuant to this subsection (d) 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 which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include 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 subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities [AND THE WARRANTS]
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Underwriters' Securities [AND WARRANTS] which it has agreed to purchase
hereunder, the Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Underwriters' Securities [AND
WARRANTS] on the terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the purchase
of such Underwriters' Securities[ AND WARRANTS], then the Company shall be
entitled to a further
19
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Underwriters'
Securities [AND WARRANTS] on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Underwriters' Securities[ AND
WARRANTS], or the Company notifies the Representatives that it has so arranged
for the purchase of such Underwriters' Securities[ AND WARRANTS], the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Underwriters' Securities [AND WARRANTS] for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Underwriters' Securities [AND THE WARRANTS]
which remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of all the Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Underwriters' Securities [AND WARRANTS] which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of Securities [AND
WARRANTS] which such Underwriter agreed to purchase hereunder) of the
Underwriters' Securities [AND WARRANTS] of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities [AND WARRANTS] of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate principal amount of Underwriters' Securities which
remains unpurchased exceeds one-eleventh of the aggregate principal amount of
the Securities[ AND THE WARRANTS], as referred to in subsection (b) above, or if
the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Underwriters' Securities [AND
WARRANTS] of a defaulting Underwriter or Underwriters, then this Agreement shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. [EACH UNDERWRITER AGREES THAT IT WILL NOT OFFER, SELL OR DELIVER ANY
OF THE SECURITIES IN ANY JURISDICTION OUTSIDE THE UNITED STATES EXCEPT UNDER
CIRCUMSTANCES THAT WILL RESULT IN COMPLIANCE WITH THE APPLICABLE LAWS THEREOF,
AND THAT IT WILL TAKE AT ITS OWN EXPENSE WHATEVER ACTION IS REQUIRED TO PERMIT
ITS PURCHASE AND RESALE OF SECURITIES IN SUCH JURISDICTIONS.] [ADD OTHER
INTERNATIONAL REPRESENTATIONS AND AGREEMENTS AS APPLICABLE.]
11. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or
20
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and
payment for the Securities[ AND THE WARRANTS].
12. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason Underwriters'
Securities [OR WARRANTS] are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Securities, but the Company shall then be under no further
liability to any Underwriter with respect to such Securities [AND WARRANTS]
except as provided in Sections 6 and 8 hereof.
13. In all dealings hereunder, the Representatives of the Underwriters
shall act on behalf of each of such Underwriters, and the parties hereto shall
be entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by such Representatives [JOINTLY OR BY
[_______] AS THE REPRESENTATIVES].
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives at [ADDRESS]; and
if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement: Attention: Secretary; PROVIDED, HOWEVER, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address, which
address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
11 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities [OR ANY OF THE WARRANTS] from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
16. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
17. This Agreement may be executed by any one or more of the parties
hereto and thereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
18. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax
21
benefits expected to be claimed with respect to such transaction, without the
Underwriters imposing any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof.
Very truly yours,
XXXXXXX-XXXXX SQUIBB COMPANY
By:.................................
Name:
Title:
Accepted as of the date hereof:
[NAMES OF REPRESENTATIVES]
By: ...................................
On behalf of each of the Underwriters
22
SCHEDULE I
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
$
-----------
Total......................................... $
===========
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) audited by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related rules and regulations; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data,
pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the representative
or representatives of the Underwriters (the "Representatives") such term
to include an Underwriter or Underwriters who act without any firm being
designated as its or their representatives and are attached to such
letters;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Company's Quarterly Reports on Form 10-Q incorporated by reference into
the Prospectus as indicated in their reports thereon; and on the basis of
specified procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related rules and regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years included or
incorporated by reference in the Company's Annual Reports on Form 10-K for
such fiscal years;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related rules and
regulations adopted by the Commission, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or included in
the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in clause (B) were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the rules and
regulations adopted by the Commission thereunder or the pro forma
adjustments have not been properly applied to the historical amounts
in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders' equity or other items specified
by the Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
2
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(vi) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Underwriting Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the Securities for purposes of the letter
delivered at the Time of Delivery.
3
ANNEX III
DELAYED DELIVERY CONTRACT
Xxxxxxx-Xxxxx Squibb Company,
c/o [name of Representative].
Attention:...................... .............. , 200....
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Xxxxxxx-Xxxxx Squibb
Company (hereinafter called the "Company"), and the Company agrees to sell to
the undersigned,
$.........
principal amount of the Company's Debt Securities (hereinafter called the
"Securities"), offered by the Company's Prospectus, dated .............., 200..,
as amended or supplemented, receipt of a copy of which is hereby acknowledged,
at a purchase price of .....% of the principal amount thereof, plus accrued
interest from the date from which interest accrues as set forth below, and on
the further terms and conditions set forth below.
The undersigned will purchase the Securities from the Company on
.............., 200...(the "Delivery Date") and interest on the Securities so
purchased will accrue from .............., 200....
The undersigned will purchase the Securities from the Company on the
delivery date or dates and in the principal amount or amounts set forth below:
Principal Date from Which
Delivery Date Amount Interest Accrues
------------- ------ ----------------
....................., 200.. $............. ....................., 200..
....................., 200.. $............. ....................., 200..
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company by wire transfer of Federal
(same day) funds to a bank account specified by the Company, on such Delivery
Date upon delivery to the undersigned of the Securities then to be purchased by
the undersigned in definitive fully registered form and in such denominations
and registered in such names as the undersigned may designate by written, telex
or facsimile communication addressed to the Company not less than five full
business days prior to such Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on each Delivery Date shall be subject to the condition that the
purchase of Securities to be made by the undersigned shall not on such Delivery
Date be prohibited under the laws of the jurisdiction to which
the undersigned is subject. The obligation of the undersigned to take delivery
of and make payment for Securities shall not be affected by the failure of any
purchaser to take delivery of and make payment for Securities pursuant to other
contracts similar to this contract.
The undersigned understands that Underwriters (the "Underwriters") are
also purchasing Securities from the Company, but that the obligations of the
Undersigned hereunder are not contingent on such purchases. Promptly after
completion of the sale to the Underwriters the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Securities
hereby agreed to be purchased by it under the laws of the jurisdiction to which
the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
2
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
By:
-----------------------------------
(Authorized Signature)
Name:
Title:
--------------------------------------
(Address)
Accepted: ______________________, 200__
XXXXXXX-XXXXX SQUIBB COMPANY
By:
------------------------------------
Name:
Title:
3
