Biogen Idec Inc. Underwriting Agreement
Exhibit 1.1
6.000% Senior Notes due 2013
6.875% Senior Notes due 2018
February 28, 2008
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
As representatives of the several Underwriters
named in Schedule I hereto,
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
As representatives of the several Underwriters
named in Schedule I hereto,
c/x Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
-and-
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
-and-
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Biogen Idec Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx &
Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and Xxxxxxx, Xxxxx & Co. and each of the other Underwriters
named in Schedule I hereto (the “Underwriters”), for whom Xxxxxxx Xxxxx and Xxxxxxx, Xxxxx & Co.
are acting as representatives (in such capacity, the “Representatives”), the respective amounts set
forth in Schedule I of $450,000,000 aggregate principal amount of the Company’s 6.000% Senior Notes
due March 1, 2013 (the “2013 Notes”) and $550,000,000 aggregate principal amount of the Company’s
6.875% Senior Notes due March 1, 2018 (the “2018 Notes” and, together with the 2013 Notes, the
“Securities”).
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1.
The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333-149379 in respect
of the Securities has been filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the date hereof; such registration
statement, and any post-effective amendment thereto, became effective on filing; and no
stop order suspending the effectiveness of such registration statement or any part thereof
has been issued and, to the Company’s knowledge, no proceeding for that purpose has been
initiated or threatened by the Commission, and no notice of objection of the Commission to
the use of such registration statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Act has been received by the Company (the base prospectus filed as
part of such registration statement, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement, is hereinafter called the
“Basic Prospectus”; any preliminary prospectus (including any preliminary prospectus
supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b)
under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of such
registration statement, including all exhibits thereto but excluding Form T-1 and including
any prospectus supplement relating to the Securities that is filed with the Commission and
deemed by virtue of Rule 430B to be part of such registration statement, each as amended at
the time such part of the registration statement became effective, are hereinafter
collectively called the “Registration Statement”; the Basic Prospectus, as amended and
supplemented immediately prior to the Applicable Time (as defined in Section 1(c) hereof),
is hereinafter called the “Pricing Prospectus”; the form of the final prospectus relating
to the Securities filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any reference
herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus;
any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement relating to the
Securities filed with the Commission pursuant to Rule 424(b) under the Act and any
documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and incorporated therein, in each case after the date of the Basic Prospectus,
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such
Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any
amendment to the 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 Registration Statement that is incorporated by reference in the
Registration Statement; and any “issuer free writing prospectus” as defined in Rule
433 under the Act relating to the Securities is hereinafter called an “Issuer Free Writing
Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed 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 did 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, in the light of the
circumstances under which they were made, 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 therein;
(c) For the purposes of this Agreement, the “Applicable Time” is 12:15 p.m. (Eastern
time) on the date of this Agreement; the Pricing Prospectus as supplemented by the final
term sheet prepared and filed pursuant to Section 5(a) hereof, taken together
(collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include
any 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, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II(a)
hereto does not conflict with the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure Package as of the Applicable
Time, did not include any 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, not misleading; provided, however, that this representation and
warranty shall not apply to statements or omissions made in an Issuer Free Writing
Prospectus in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use therein;
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(d) The documents incorporated by reference in the Pricing Prospectus and 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; 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 Company by an Underwriter through the Representatives expressly for use therein; and no
such documents were filed with the Commission since the Commission’s close of business on
the business day immediately prior to the date of this Agreement and prior to the execution
of this Agreement, except as set forth on Schedule II(b) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and 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 each part of the Registration Statement 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 therein;
(f) Neither the Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included or incorporated by reference in the
Pricing Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity,
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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 Pricing Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Pricing Prospectus, there has
not been any change in the capital stock (other than changes due to grants, exercises, and
terminations under Company incentive plans referred to in the Pricing Prospectus and in the
documents incorporated by reference therein, repurchases of the Company’s common stock
pursuant to an issuer tender offer completed on July 2, 2007 as set forth in the Pricing
Prospectus and in the documents
incorporated by reference therein and other publicly announced share repurchase
programs) or long term debt of the Company or any of its subsidiaries or any material
adverse change or any development that is reasonably likely to result in a material adverse
change, in or affecting the general affairs, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries taken as a whole
(collectively, a “Material Adverse Effect”), otherwise than as set forth or contemplated in
the Pricing Prospectus;
(g) The Company and its subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except such as are
described in the Pricing Prospectus or such as would not reasonably be expected to have a
Material Adverse Effect; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as would not reasonably be expected to have a Material Adverse
Effect;
(h) 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 Pricing
Prospectus, and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction except where failure would not reasonably be expected to have a
Material Adverse Effect ; and each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation, limited liability company or other entity in good
standing under the laws of its jurisdiction of organization;
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(i) The Company has an authorized capitalization as set forth in the Pricing
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; and all of the issued
shares of capital stock, membership interests or other capital securities of each
subsidiary of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable and (except for directors’ qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(j) The Securities have been duly authorized by the Company and, when issued and
delivered pursuant to this Agreement, 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 February 26, 2008 (the “Base Indenture” and,
together with the First Supplemental Indenture thereto to be dated as of a date on or prior
to the Time of Delivery, the “Indenture”) between the Company and The Bank of New York
Trust Company, N.A., as Trustee (the “Trustee”), under which they are to be issued, which,
in the case of the Base Indenture, has been filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized by the Company and duly qualified under
the Trust Indenture Act and, when executed and delivered by the Company and the Trustee,
will constitute, at the Time of Delivery, a valid and legally binding instrument,
enforceable against the Company 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 Securities and
the Indenture will conform to the descriptions thereof in the Pricing Disclosure Package
and the Prospectus;
(k) The issue and sale of the Securities and the compliance by the Company with all of
the provisions of the Securities, the Indenture and this Agreement and the consummation of
the transactions herein and therein contemplated will not 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 to
which the Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject, except as would not reasonably be expected to have a
Material Adverse Effect, nor will such action result in any violation of the provisions of
the Certificate of Incorporation or By-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body
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having jurisdiction over the
Company or any of its subsidiaries or any of their properties; 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
consummation by the Company of the transactions contemplated by this Agreement or the
Indenture except such as have been, or prior to the Time of Delivery will be, obtained
under the Act and the Trust Indenture Act 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 by the Underwriters;
(l) Neither the Company nor any of its subsidiaries is in default in the performance
or observance of any material obligation, 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 other than as would not reasonably be
expected to have a Material Adverse Effect, or in violation of its organizational
documents;
(m) The statements set forth in the Pricing Prospectus and the Prospectus under the
caption “Description of Notes”, insofar as they purport to constitute a summary of the
terms of the Securities, under the caption “Material U.S. Federal Income Tax
Considerations”, and under the caption “Underwriting”, insofar as they purport to describe
the provisions of the laws and documents referred to therein, fairly summarize in all
material respects such laws and documents;
(n) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the financial position or results of
operations of the Company and its subsidiaries taken as a whole; and, to the best of the
Company’s knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(o) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an “investment
company”, as such term is defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
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(p) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at
the time the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after the filing
of the Registration Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the
Company was not an “ineligible issuer” as defined in Rule 405 under the Act;
(q) PricewaterhouseCoopers LLP, who have certified certain financial statements of the
Company and its subsidiaries, and have audited the Company’s internal control over
financial reporting, are
independent registered public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(r) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial reporting is effective and the
Company is not aware of any material weaknesses in its internal control over financial
reporting;
(s) Since the date of the latest audited financial statements included or incorporated
by reference in the Pricing Prospectus, there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting; and
(t) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
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others within those entities; and such disclosure controls and procedures are effective.
(u) Except as disclosed in the Pricing Prospectus, and except where such failure would
not have a Material Adverse Effect, the Company and its subsidiaries own, possess, license
or have the right to use the patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks, trade names
and other rights or interests in items of intellectual property as are necessary for the
operation and conduct of the businesses now operated by them (the “patent and proprietary
rights”); and except as disclosed in the Pricing Prospectus, the Company has not received
notice of any infringement of or conflict with asserted rights of others with respect to
any patent and proprietary rights, which infringement or conflict would reasonably be
expected to result in a Material Adverse Effect.
(v) Except as described in the Pricing Prospectus, the Company and its subsidiaries
are in material compliance with all statutes, rules, regulations, ordinances, orders,
decrees and guidance applicable to the
ownership, testing, in humans or laboratory models, development, manufacture, formulation,
packaging, processing, recordkeeping, use, distribution, marketing, labeling, promotion,
sale, offer for sale, storage, import, export or disposal of any product manufactured or
distributed by or for the Company or any of its subsidiaries, except where the failure to
so comply would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
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, the principal amount of Securities set forth opposite the name of such
Underwriter in Schedule I hereto at a purchase price of 99.286% of the principal amount of the 2013
Notes and 98.534% of the principal amount of the 2018 Notes plus, in each case, accrued interest,
if any, from March 4, 2008 to the Time of Delivery (as defined below) hereunder.
3. Upon the authorization by you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The 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
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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, 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 March 4, 2008 or such other time and date as you and the Company may agree upon
in writing. Such time and date are herein called the “Time of Delivery”.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriters pursuant to Section 8(i) hereof, will be
delivered at the offices of Sidley Austin LLP 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (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 12:00 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:
(a) To prepare the Prospectus in a form that you have not reasonably disapproved 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 date of this Agreement; to make no further
amendment or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus
prior to the Time of Delivery which shall be reasonably disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes effective or any
amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to
prepare a final term sheet, containing solely a description of the Securities, in a form approved
by you and to file such term sheet pursuant to Rule 433(d) under the Act within the time required
by such Rule; to file promptly all other material required to be filed by the Company with the
Commission pursuant to Rule
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433(d) under the Act; 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 subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Act) is required in connection with the offering or sale of the Securities; to advise you, promptly
after it receives notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect
of the Securities, of any notice of objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the
suspension of the qualification 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 the Prospectus or for
additional information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending
any such qualification, to promptly use its reasonable best efforts to obtain the withdrawal of
such order; and in the event of any such issuance of a notice of objection, promptly to take such
steps including, without limitation, amending the Registration Statement or filing a new
registration statement, at its own expense, as may be necessary to permit offers and sales of the
Securities by the Underwriters (references herein to the Registration Statement shall include any
such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later
than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement
to such form of prospectus which shall be reasonably disapproved by you promptly after reasonable
notice thereof;
(c) Promptly from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the distribution of the
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;
(d) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a
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prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration of nine months after the time
of
issue of the Prospectus in connection with the offering or sale 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 (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period 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 you and upon your 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 you 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; and in case any Underwriter is required to deliver a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales
of any of the Securities at any time nine months or more after the time of issue of the Prospectus,
upon your request but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many written and electronic copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(e) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen 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);
(f) During the period beginning from the date hereof and continuing to and including the later
of the Time of Delivery and such earlier time as you may notify the Company, not to offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose,
except as provided hereunder of, any securities of the Company that are substantially similar to
the Securities;
(g) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act; and
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(h) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the
caption “Use of Proceeds”.
6.
(a) (i) The Company represents and agrees that, other than the final term sheet prepared and
filed pursuant to Section 5(a) hereof, without your prior consent, it has not made and will not
make any offer relating to the Securities that would constitute a “free writing prospectus” as
defined in Rule 405 under the Act;
(ii) each Underwriter represents and agrees that, without your prior consent and the consent
of the Company, other than one or more term sheets relating to the Securities containing customary
information and conveyed to purchasers of Securities, it has not made and will not make any offer
relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in
Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission; and
(iii) any such free writing prospectus the use of which has been consented to by the Company
and you (including the final term sheet prepared and filed pursuant to Section 5(a) hereof) is
listed on Schedule II(a) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or 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 then
prevailing, not misleading, the Company will give prompt notice thereof to you and, if requested by
you, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus
or other document which will correct such conflict, statement or omission; provided, however, that
this representation and warranty shall not apply to any statements or omissions in an Issuer Free
Writing Prospectus made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein.
-13-
7. 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 under the Act and all other
expenses in connection with the preparation, printing, reproduction and filing of the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing 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, the Indenture, the Blue Sky Memorandum, closing documents (including
any compilations thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in Section 5(d) hereof,
including the fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) fees charged by securities rating
services for rating the Securities; (v) the filing fees incident to, and the fees and disbursements
of counsel for the Underwriters in connection with, any required review by the Financial Industry
Regulatory Authority, Inc. of the terms of the sale of the Securities (vi) the cost of preparing
the Securities; (vii) the fees and expenses of the Trustee and any agent of the Trustee and the
fees and disbursements of counsel for the Trustee in connection with the Indenture and the
Securities; and (viii) all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 9 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 by them, and any advertising expenses connected with any offers
they may make.
8. The obligations of the Underwriters hereunder shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the Company herein are,
at and as of the Time of 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 shall have been filed with the Commission pursuant to Rule 424(b) under the
Act 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; the final term sheet contemplated by Section
5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d)
under the Act, shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; no stop
-14-
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 no notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus 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 your reasonable satisfaction;
(b) Xxxxxx Xxxxxx LLP, counsel for the Underwriters, shall have furnished to you such written
opinion or opinions (a form of each such opinion is attached as Xxxxx XX(a) hereto), dated the Time
of Delivery, in form and substance satisfactory to you, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Ropes & Gray LLP, counsel for the Company, shall have furnished to you their written
opinion or opinions (a form of each such opinion is attached as Xxxxx XX(b) hereto), dated the Time
of Delivery, in form and substance reasonably satisfactory to you;
(d) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at the Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you, containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to underwriters with
respect to financial statements and certain financial information contained in the Registration
Statement, Pricing Prospectus and the Prospectus. The letter to be delivered on the effective date
of any post-effective amendment to the Registration Statement, and as of the Time of Delivery shall
reaffirm the statements made in the letter furnished on the date of the Prospectus, except that
statements made therein as of a specified date subsequent to the date of the latest balance sheet
and income statement of the Company shall be as of a date not more than three business days prior
to the date of such post-effective amendment or Time of Delivery, as applicable;
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus 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 Pricing Prospectus,
-15-
and
(ii) since the respective dates as of which information is given in the Pricing Prospectus there
shall not have been any change in the capital stock or long term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change, in or affecting the
business, management, financial position, stockholders’ equity or results of operations of the
Company and its subsidiaries (other than changes due to grants, exercises, and terminations under
Company incentive plans referred to in the Pricing Prospectus and in the documents incorporated by
reference therein, repurchases of the Company’s common stock pursuant to an issuer tender offer
completed on July 2, 2007 as set forth in the Pricing Prospectus and in the documents incorporated
by reference therein and other publicly announced share repurchase programs), otherwise than as set
forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the manner contemplated in
the Prospectus;
(f) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities 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;
(g) On or after the Applicable Time 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
or the NASDAQ Global Select Market; (ii) a suspension or material limitation in trading in the
Company’s securities on the NASDAQ Global Select Market; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your
judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus;
(h) The Company shall have complied with the provisions of Section 5(e) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
-16-
(i) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a) and (e) of this Section and as to such other matters as
you may reasonably request.
9. (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 the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or
required to be filed pursuant to Rule 433(d) under the Act, 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 reasonable 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; 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 the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein.
(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 the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, 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
-17-
in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein and will reimburse the Company for any reasonable 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 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 9 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
-18-
Company on the one
hand and the Underwriters on the other from the offering of the Securities. 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 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 the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. 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 the 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 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 Underwriters’ obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 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
-19-
Underwriter within the meaning of the Act and each broker-dealer
affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 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.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which
it has agreed to purchase hereunder, you may in your discretion arrange for you or another party or
other parties to purchase such Securities on the terms contained herein. If within thirty six
hours after such default by any Underwriter you do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of thirty six hours within which to procure
another party or other parties satisfactory to you to purchase such Securities on such terms. In
the event that, within the respective prescribed periods, you notify the Company that you have so
arranged for the purchase of such Securities, or the Company notifies you that it has so arranged
for the purchase of such Securities, you or the Company shall have the right to postpone the Time
of Delivery 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, 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 your opinion 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 with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of such Securities 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 Securities
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 which such Underwriter agreed to purchase hereunder) of the Securities 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 Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of Securities which remains unpurchased exceeds one eleventh of the
aggregate principal amount of all the Securities, or if the Company shall not exercise the right
-20-
described in subsection (b) above to require non-defaulting Underwriters to purchase Securities 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 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or 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.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if the Securities are not delivered by or on behalf of the Company as provided herein other than as
a result of a failure of the conditions set forth in paragraph (g) of Section 8, the Company will
reimburse the Underwriters through you for all out of pocket expenses approved in writing by you,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the Securities, but
the Company shall then be under no further liability to any Underwriter except as provided in
Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the 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 you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of
you 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 you as the
representatives in care of Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Registration Department; 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 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission
to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company by you upon request.
Any such
-21-
statements, requests, notices or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the underwriters to properly identify their respective clients.
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 9 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 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, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the
one hand, and the several
Underwriters, on the other, (ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the
Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the
Company with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising the Company on other
matters) or any other obligation to the Company except the obligations expressly set forth in this
Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it
deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of
them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty
to the Company, in connection with such transaction or the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
-22-
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto 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.
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters, imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, “tax structure” is limited to
any facts that may be relevant to that treatment.
-23-
If the foregoing is in accordance with your understanding, please sign and return to us six
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for examination upon request.
| Very truly yours, Biogen Idec Inc. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| Accepted as of the date hereof: Xxxxxxx, Xxxxx & Co. |
||||
| By: | /s/ Xxxxxxx, Xxxxx & Co. | |||
| (Xxxxxxx, Xxxxx & Co.) | ||||
| Xxxxxxx Xxxxx & Co. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
For themselves and as Representatives of the other Underwriters.
-24-
SCHEDULE I
| Principal | Principal | |||||||
| Amount of | Amount of | |||||||
| Underwriter | 2013 Notes | 2018 Notes | ||||||
Xxxxxxx, Xxxxx & Co. |
$ | 146,426,000 | $ | 226,874,000 | ||||
Xxxxxxx Xxxxx Xxxxxx, Xxxxxx & Xxxxx
Incorporated |
146,424,000 | 226,876,000 | ||||||
Banc of America Securities LLC |
33,750,000 | 41,250,000 | ||||||
Xxxxxx Xxxxxxx & Co. Incorporated |
78,400,000 | — | ||||||
Citigroup Global Markets Inc. |
11,250,000 | 13,750,000 | ||||||
X.X. Xxxxxx Securities Inc. |
11,250,000 | 13,750,000 | ||||||
Xxxxxx Brothers Inc. |
11,250,000 | 13,750,000 | ||||||
UBS Securities LLC |
11,250,000 | 13,750,000 | ||||||
Total |
$ | 450,000,000 | $ | 550,000,000 | ||||
-1-
SCHEDULE II
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
Electronic roadshow posted as of February 26, 2008.
(b) Additional Documents Incorporated by Reference: None.
-1-
XXXXX XX(a)
Form of Opinion of Sidley Austin LLP
(i) The Company is validly existing as a corporation in good standing under the laws of the
State of Delaware.
(ii) The Underwriting Agreement has been duly authorized, executed, and delivered by the
Company.
(iii) The Indenture has been duly authorized, executed and delivered by the Company and
(assuming the due authorization, execution and delivery thereof by the Trustee) constitutes a valid
and binding agreement of the Company, enforceable against the Company in accordance with its terms.
(iv) The Securities have been duly authorized, executed and delivered by the Company and, when
authenticated by the Trustee in the manner provided in the Indenture and issued and delivered
against payment of the purchase price therefor, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms, and holders of the
Securities will be entitled to the benefits of the Indenture under which they were issued.
(v) The statements set forth in the Prospectus under the caption “Description of Notes,”
insofar as they purport to constitute a summary of the terms of the Securities, and under the
caption “Underwriting,” insofar as they purport to describe the provisions of the laws and
documents referred to therein, fairly summarize the matters referred to therein in all material
respects.
(vi) The Registration Statement and the Prospectus, each as of the date of the Underwriting
Agreement and as of the date hereof, in each case, other than (i) the documents incorporated or
deemed to be incorporated therein by reference, (ii) the financial statements (including the notes)
and any supporting schedules thereto and other financial data included or incorporated by reference
therein or omitted therefrom, and (iii) the Trustee’s Statement of Eligibility on Form T-1, as to
which we express no opinion, complied as to form in all material respects relevant to the offering
of the Securities with the requirements of the Securities Act of 1933, as amended (the “1933 Act”),
and the rules and regulations of the Securities and Exchange Commission thereunder. In passing
upon the compliance as to form of the Registration Statement and the Prospectus with these
requirements, we have assumed that the statements made therein are correct and complete.
We have not participated in the preparation of the documents incorporated or deemed to be
incorporated by reference in the Registration Statement, the
A-II(a)-1
Prospectus or the Pricing Disclosure Package, and we have not verified, are not passing upon,
and do not assume any responsibility for, the accuracy, completeness or fairness of any of the
statements contained or incorporated or deemed to be incorporated by reference in the Registration
Statement, the Prospectus or the Pricing Disclosure Package (except to the limited extent specified
in clause (v) above). However, we have generally reviewed and discussed such statements with
certain officers and employees of the Company, with their counsel and independent accountants and
with representatives of the Underwriters and, based solely on such review and discussions, no facts
have come to our attention that have caused us to believe that:
| 1. | the Registration Statement, as of the “new effective date” with respect to the Underwriters and the Securities pursuant to, and within the meaning of, Rule 430B(f)(2) under the 1933 Act, 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; | ||
| 2. | the Pricing Disclosure Package, as of 12:30 P.M. (Eastern time) on February 28, 2008, included 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, not misleading; or | ||
| 3. | the Prospectus, as of its date or at the date hereof, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; |
except that in each case we express no belief and make no statement with respect to the financial
statements (including notes) and supporting schedules, if any, thereto or the financial data
included or incorporated or deemed to be incorporated by reference therein or omitted therefrom.
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XXXXX XX(b)
Form of Opinion of Ropes & Gray LLP
1. The Company is validly existing as a corporation in good standing under the laws of the
State of Delaware. Biogen Idec MA Inc. is validly existing as a corporation in good standing with
the Secretary of State of The Commonwealth of Massachusetts.
2. The Company has corporate power to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its obligations under the
Company Agreements.
3. The Company is qualified to do business as a foreign corporation in Massachusetts.
4. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
5. The Indenture has been duly authorized, executed and delivered by the Company and (assuming
the due authorization, execution and delivery thereof by the Trustee) constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance with its terms,
except as may be limited by bankruptcy, insolvency or similar laws affecting the rights and
remedies of creditors generally and general principles of equity; and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended.
6. The Securities have been duly authorized, executed and delivered by the Company and,
assuming that the Securities have been duly authenticated by the Trustee in the manner prescribed
by the Indenture, will be valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms and entitled to the benefits of the Indenture, except as may
be limited by bankruptcy, insolvency or similar laws affecting the rights and remedies of creditors
generally and general principles of equity.
7. All consents, approvals and authorizations of any federal or Massachusetts state court or
governmental authority or agency or under the Delaware General Corporation Law that are required to
be obtained in connection with the offer, sale and delivery of the Securities have been obtained.
8. The execution, delivery and performance by the Company of the Company Agreements and the
issuance and sale of the Securities will not (i) violate any provision of Massachusetts law, the
Delaware General Corporation Law, the federal laws of the United States or the Certificate of
Incorporation or By-Laws of the Company, (ii) breach or result in a default under any of the
A-II(b)-1
agreements identified as exhibits to the Company’s Annual Report on Form 10-K filed with the
Commission, or (iii) to our knowledge, violate any judgment, injunction, order or decree of any
Massachusetts or federal court, arbitrator, governmental body, agency or official specifically
naming the Company.
9. The Company is not an “investment company” or an entity “controlled” by an “investment
company,” as such terms are defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
In the course of the preparation of the Registration Statement and the Prospectus, as counsel
to the Company we participated in conferences with officers and representatives of the Company,
representatives of the independent accountants for the Company and your representatives and counsel
at which conferences the contents of these documents were discussed. On the basis of information
that we have gained in the course of our representation of the Company and our participation in the
discussions referred to above, we confirm to you (i) that the Registration Statement, as of its
effective date, and the Prospectus, as of its date, complied as to form in all material respects
with the requirements of the Securities Act and the rules and regulations of the Commission
thereunder and that the documents incorporated by reference into the Prospectus, when they were
filed with the Commission, complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission thereunder, and (ii) we do not
know of any legal or governmental proceeding to which the Company or any of its subsidiaries is a
party required to be described in the Prospectus which is not so described. In addition, based on
the information and participation described above, no facts that have come to our attention have
caused us to believe that the (i) Registration Statement, as of its date or the date hereof,
contained an untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not misleading, (ii) the
Pricing Disclosure Package, as of the Applicable Time, contained 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, not misleading, or (iii) the Prospectus, as
of its date and as of the Time of Delivery, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, except in
each case that we express no belief with respect to the financial statements, schedules and other
financial data included or incorporated by reference in any of the foregoing. Further, based upon
such information and participation, we know of no contracts, agreements or other documents that the
Company is required to file with the Commission pursuant to the Exchange Act that have not been
filed as required.
A-II(b)-2
