EXHIBIT 99.4
Execution Copy
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of March 1,
2002 by and between Amgen Inc., a Delaware corporation (the "Company"), and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Initial Purchaser")
pursuant to the Purchase Agreement, dated as of February 22, 2002 (the "Purchase
Agreement"), between the Company and the Initial Purchaser. In order to induce
the Initial Purchaser to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
The Company agrees with the Initial Purchaser, (i) for the benefit of the
Initial Purchaser and (ii) for the benefit of the beneficial owners (including
the Initial Purchaser) from time to time of the Registrable Securities (as
defined herein)(each of the foregoing a "Holder" and together the "Holders"), as
follows:
Section 1. Definitions. Capitalized terms used herein without definition
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shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following meanings:
"Affiliate" means, with respect to any specified person, an "affiliate", as
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defined in Rule 144, of such person.
"Applicable Conversion Price" means, as of any date of determination, the
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Applicable Principal Amount per $1,000 principal amount at maturity of
Securities as of such date of determination divided by the Conversion Rate in
effect as of such date of determination or, if no Securities are then
outstanding, the Conversion Rate that would be in effect were Securities then
outstanding.
"Applicable Principal Amount" means, as of any date of determination, (1)
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with respect to each $1,000 principal amount at maturity of Securities, the sum
of the initial issue price of such Securities ($714.23) plus accrued original
issue discount with respect to such Securities through such date of
determination, (2) if the Securities have been converted to semiannual coupon
notes upon a Tax Event, the Restated Principal Amount (as defined in the
Indenture) with respect to the Securities, or (3) if no Securities are then
outstanding, such sum calculated as if such Securities were then outstanding.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
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that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
"Common Stock" means any shares of Common Stock, par value $0.0001 per
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share, of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, including the Underlying Common
Stock.
"Company" has the meaning specified in the first paragraph of this
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Agreement.
"Conversion Rate" has the meaning assigned to that term in the Indenture.
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"Damages Accrual Period" has the meaning specified in Section 2(e) hereof.
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"Damages Payment Date" means each March 1 and September 1 in the case of
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Securities and the Underlying Common Stock.
"Deferral Notice" has the meaning specified in Section 3(i) hereof.
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"Deferral Period" has the meaning specified in Section 3(i) hereof.
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"Effectiveness Deadline Date" has the meaning specified in Section 2(a)
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hereof.
"Effectiveness Period" means the period of two years from the Issue Date or
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such shorter period that will terminate when there are no Securities that are
Registrable Securities.
"Event" has the meaning specified in Section 2(e) hereof.
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"Event Date" has the meaning specified in Section 2(e) hereof.
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"Event Termination Date" has the meaning specified in Section 2(e) hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning specified in Section 2(a) hereof.
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"Holder" has the meaning specified in the second paragraph of this
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Agreement.
"Indenture" means the Indenture dated as of the date hereof between the
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Company and the Trustee, pursuant to which the Securities are being issued.
"Initial Purchaser" has the meaning specified in the first paragraph of
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this Agreement.
"Initial Shelf Registration Statement" has the meaning specified in Section
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2(a) hereof.
"Issue Date" means March 1, 2002.
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"Liquidated Damages Amount" has the meaning specified in Section 2(e)
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hereof.
"Material Event" has the meaning specified in Section 3(i) hereof.
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"Notice and Questionnaire" means a written notice delivered to the Company
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containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Company dated February 26, 2002 relating to the Securities.
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"Notice Holder" means, on any date, any Holder that has delivered a Notice
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and Questionnaire to the Company, on or prior to such date.
"Prospectus" means the prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 415 promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such Prospectus.
"Purchase Agreement" has the meaning specified in the first paragraph of
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this Agreement.
"Record Holder" means, with respect to any Damages Payment Date relating to
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any Securities or Underlying Common Stock as to which any Liquidated Damages
Amount has accrued, the registered holder of such Securities or Underlying
Common Stock, as the case may be, on the February 14 or August 17, as the case
may be, immediately prior to such Damages Payment Date.
"Registrable Securities" means the Securities and the Underlying Common
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Stock, until such securities have been converted or exchanged, and, at all times
subsequent to any such conversion or exchange, any securities into or for which
such securities have been converted or exchanged, and any security issued with
respect thereto upon any stock dividend, split, merger or similar event until,
in the case of any such security, the earliest of (i) its effective registration
under the Securities Act and resale in accordance with the Registration
Statement covering it, (ii) expiration of the holding period that would be
applicable thereto under Rule 144(k) were it not held by an Affiliate of the
Company, (iii) its sale to the public pursuant to Rule 144 or (iv) the date such
Securities cease to be outstanding.
"Registration Expenses" has the meaning specified in Section 5 hereof.
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"Registration Statement" means any registration statement of the Company
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that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"Restricted Securities" has the meaning assigned to that term in Rule144.
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"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
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amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may be
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amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"SEC" means the U.S. Securities and Exchange Commission and any successor
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agency.
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"Securities" means the Liquid Yield Option Notes due 2032 of the Company to
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be purchased pursuant to the Purchase Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the
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rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning specified in Section 2(a)
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hereof.
"Subsequent Shelf Registration Statement" has the meaning specified in
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Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
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"Trustee" means LaSalle Bank National Association (or any successor
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entity), the Trustee under the Indenture.
"Underlying Common Stock" means the Common Stock into which the Securities
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are convertible or issued upon any such conversion.
Section 2. Shelf Registration. (a) The Company shall prepare and file or
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cause to be prepared and filed with the SEC as soon as practicable but in any
event by the date no later than a date which is ninety (90) days after the Issue
Date (the "Filing Deadline Date") a Registration Statement for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act
(a "Shelf Registration Statement") registering the resale from time to time by
Holders thereof of all of the Registrable Securities (the "Initial Shelf
Registration Statement"). The Initial Shelf Registration Statement shall be on
Form S-3 or another appropriate form permitting registration of such Registrable
Securities for resale by such Holders in accordance with the methods of
distribution and set forth in the Initial Shelf Registration Statement provided,
that in no event will such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior agreement
of the Company. The Company shall use reasonable efforts to cause the Initial
Shelf Registration Statement to be declared effective under the Securities Act
as promptly as practicable but in any event by the date (the "Effectiveness
Deadline Date") that is one hundred and eighty (180) days after the Issue Date,
and to keep the Initial Shelf Registration Statement (or any Subsequent Shelf
Registration Statement) continuously effective under the Securities Act (subject
to Section 3(i)) until the expiration of the Effectiveness Period. At the time
the Initial Shelf Registration Statement is declared effective, each Holder that
became a Notice Holder on or prior to the date 10 Business Days prior to such
time of effectiveness shall be named as a selling security holder in the Initial
Shelf Registration Statement and the related Prospectus in such a manner as to
permit such Holder to deliver such Prospectus to purchasers of Registrable
Securities in accordance with applicable law (other than non-Blue Sky laws that
are not generally applicable to all such holders). None of the Company's
security holders (other than the Holders of Registrable Securities) shall have
the right to include any of the Company's securities in the Shelf Registration
Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during
the Effectiveness
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Period (other than as provided in Section 3(i) or because all Registrable
Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Registrable Securities), the Company shall use
reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration Statement in a manner
reasonably expected by the Company to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional Shelf Registration
Statement covering all of the Securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use
reasonable efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is reasonably practicable after such filing or,
if filed during a Deferral Period, after the expiration of such Deferral Period,
and to keep such Registration Statement (or subsequent Shelf Registration
Statement) continuously effective (subject to Section 3(i)) until the end of the
Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration Statement
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement, if
required by the Securities Act or, to the extent to which the Company does not
reasonably object, as reasonably requested by the Initial Purchaser or by the
Trustee on behalf of the registered Holders.
(d) Each Holder of Registrable Securities agrees that if such Holder wishes
to sell Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus, it will do so only in accordance with this Section 2(d) and
Section 3(i). Each Holder of Registrable Securities wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus
agrees to deliver a Notice and Questionnaire to the Company at least ten (10)
Business Days prior to any intended distribution of Registrable Securities under
the Shelf Registration Statement. From and after the date the Initial Shelf
Registration Statement is declared effective, the Company shall, as promptly as
is reasonably practicable, after the date a fully completed and legible Notice
and Questionnaire is received by the Company, (i) if required by applicable law,
file with the SEC a post-effective amendment to the Shelf Registration Statement
or prepare and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other document required by applicable law or the SEC so
that the Holder delivering such Notice and Questionnaire is named as a selling
security holder in the Shelf Registration Statement and the related Prospectus
in such a manner as to permit such Holder to deliver such Prospectus to
purchasers of the Registrable Securities in accordance with applicable law
(other than non-Blue Sky laws not generally applicable to all holders of
Registrable Securities wishing to sell Registrable Securities pursuant to the
Shelf Registration Statement and related Prospectus) and, if the Company shall
file a post-effective amendment to the Shelf Registration Statement, use
reasonable efforts to cause such post effective amendment to be declared
effective under the Securities Act as promptly as is reasonably practicable;
(ii) provide such Holder copies of any documents filed pursuant to Section
2(d)(i); and (iii) notify such Holder as promptly as reasonably practicable
after the effectiveness under the Securities Act of any post effective amendment
filed pursuant to Section 2(d)(i); provided, that if such Notice and
Questionnaire is delivered during a Deferral Period, the Company shall so inform
the Holder delivering such Notice and Questionnaire and shall take the actions
set forth in clauses (i), (ii) and (iii) above
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upon expiration of the Deferral Period in accordance with Section 3(i),
provided, further, that if under applicable law the Company has more than one
option as to the type or manner of making any such filing, as set forth in an
opinion of nationally recognized counsel experienced in such matters delivered
by the Holder to the Company, it will make the required filing or filings in the
manner or of a type that is reasonably expected to result in the earliest
availability of the Prospectus for effecting resales of Registrable Securities.
Notwithstanding anything contained herein to the contrary, the Company shall be
under no obligation to name any Holder that is not a Notice Holder as a selling
security holder in any Registration Statement or related Prospectus.
Notwithstanding the provisions of Section 3, any amendments or supplements to
the Registration Statement pursuant to this Section 2(d) that solely list
additional selling shareholders need not be submitted for review by other Notice
Holders or the Initial Purchaser.
(e) The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if (i) the Initial Shelf Registration Statement
has not been filed on or prior to the Filing Deadline Date, (ii) the Initial
Shelf Registration Statement has not been declared effective under the
Securities Act on or prior to the Effectiveness Deadline Date, or (iii) the
aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to Section 3(i) hereof (each of the
events of a type described in any of the foregoing clauses (i) through (iii) are
individually referred to herein as an "Event," and the Filing Deadline Date in
the case of clause (i), the Effectiveness Deadline Date in the case of clause
(ii), and the date on which the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted by Section 3(i) hereof in the case
of clause (iii), being referred to herein as an "Event Date"). Events shall be
deemed to continue until the "Event Termination Date," which shall be the
following dates with respect to the respective types of Events: the date the
Initial Shelf Registration Statement is filed in the case of an Event of the
type described in clause (i), the date the Initial Shelf Registration Statement
is declared effective under the Securities Act in the case of an Event of the
type described in clause (ii), and termination of the Deferral Period that
caused the limit on the aggregate duration of Deferral Periods in a period set
forth in Section 3(i) to be exceeded in the case of the commencement of an Event
of the type described in clause (iii).
Accordingly, commencing on (and including) any Event Date and ending on
(but excluding) the next date on which there are no Events that have occurred
and are continuing (a "Damages Accrual Period"), the Company agrees to pay, as
liquidated damages and not as a penalty, an amount (the "Liquidated Damages
Amount"), payable on the Damages Payment Dates to Record Holders of then
outstanding Securities that are Registrable Securities or of then outstanding
shares of Underlying Common Stock issued upon conversion of Securities that are
Registrable Securities, as the case may be, accruing, for each portion of such
Damages Accrual Period beginning on and including a Damages Payment Date (or, in
respect of the first time that the Liquidation Damages Amount is to be paid to
Holders on a Damages Payment Date as a result of the occurrence of any
particular Event, from the Event Date) and ending on but excluding the first to
occur of (A) the date of the end of the Damages Accrual Period or (B) the next
Damages Payment Date, at a rate per annum equal to one quarter of one percent
(0.25%) for the first 90 day period from the Event Date, and thereafter at a
rate per annum equal to one half of one percent (0.5%) of the aggregate
Applicable Principal Amount of such Securities and the aggregate Applicable
Conversion Price of such shares of Underlying Common Stock, as the case
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may be, in each case determined as of the Business Day immediately preceding the
next Damages Payment Date; provided, that any Liquidated Damages Amount accrued
with respect to any Securities or portion thereof called for redemption on a
redemption date or converted into Underlying Common Stock on a conversion date
prior to the Damages Payment Date, shall, in any such event, be paid instead to
the Holder who submitted such Securities or portion thereof for redemption or
conversion on the applicable redemption date or conversion date, as the case may
be, on such date (or promptly following the conversion date, in the case of
conversion). Notwithstanding the foregoing, no Liquidated Damages Amounts shall
accrue as to any Registrable Security from and after the earlier of (x) the date
such security is no longer a Registrable Security and (y) expiration of the
Effectiveness Period. The rate of accrual of the Liquidated Damages Amount with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events. Following the cure
of all Events requiring the payment by the Company of Liquidated Damages Amounts
to the Holders of Registrable Securities pursuant to this Section, the accrual
of Liquidated Damages Amounts will cease (without in any way limiting the effect
of any subsequent Event requiring the payment of Liquidated Damages Amount by
the Company). For the avoidance of doubt, with respect to the payment of
Liquidated Damages Amounts payable as a result of an Event occurring after the
end of one or more Damage Accrual Periods, such Liquidated Damages Amounts shall
be calculated at a rate per annum equal to one-quarter of one percent (0.25%)
for the first ninety (90) day period from such Event Date, and thereafter at a
rate per annum equal to one-half of one percent (0.50%), of the aggregate
Applicable Principal Amount of such Securities and the aggregate Applicable
Conversion Price of such shares of Underlying Common Stock, as the case may be,
until the next Event Termination Date on which there are no Events which have
occurred and are continuing.
The Trustee shall be entitled, but shall not be obligated, on behalf of
Holders of Securities or Underlying Common Stock, to seek any available remedy
for the enforcement of this Agreement, including for the payment of any
Liquidated Damages Amount. Notwithstanding the foregoing, the parties agree that
the sole monetary damages payable for a violation of the terms of this Agreement
with respect to which liquidated damages are expressly provided shall be such
liquidated damages. Nothing shall preclude a Notice Holder or Holder of
Registrable Securities from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section 2(e) that are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 8(l)).
The parties hereto agree that the liquidated damages provided for in this
Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
Section 3. Registration Procedures. In connection with the registration
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obligations of the Company under Section 2 hereof, the Company shall:
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(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, furnish to the Initial Purchaser
copies of all such documents proposed to be filed and use reasonable efforts to
reflect in each such document when so filed with the SEC such comments as the
Initial Purchaser reasonably shall propose within three (3) Business Days of the
delivery of such copies to the Initial Purchaser.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 2(a); cause the related Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force) under the Securities Act;
and use reasonable efforts to comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all securities covered by
such Registration Statement during the Effectiveness Period in accordance with
the intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders and the
Initial Purchaser (i) when any Prospectus, Prospectus supplement, Registration
Statement or post-effective amendment to a Registration Statement has been filed
with the SEC and, with respect to a Registration Statement or any post-effective
amendment, when the same has been declared effective, (ii) of any request,
following the effectiveness of the Initial Shelf Registration Statement under
the Securities Act, by the SEC or any other federal or state governmental
authority for amendments or supplements to any Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order suspending
the effectiveness of any Registration Statement or the initiation or threatening
of any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the occurrence of (but not the nature of or details concerning)
a Material Event (provided, however, that no notice by the Company shall be
required pursuant to this clause (v) in the event that the Company either
promptly files a Prospectus supplement to update the Prospectus or a Form 8-K or
other appropriate Exchange Act report that is incorporated by reference into the
Registration Statement, which, in either case, contains the requisite
information with respect to such Material Event that results in such
Registration Statement no longer containing any untrue statement of material
fact or omitting to state a material fact necessary to make the statements
contained therein not misleading) and (vi) of the determination by the Company
that a post-effective amendment to a Registration Statement will be filed with
the SEC, which notice may, at the discretion of the Company (or as required
pursuant to Section 3(i)), state that it constitutes a Deferral Notice, in which
event the provisions of Section 3(i) shall apply.
(d) Use reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of a Registration Statement or the lifting of any suspension
of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction in which they have been qualified for
sale, in either case at the earliest practicable moment or, if
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any such order or suspension is made effective during any Deferral Period, at
the earliest practicable moment after the expiration of such Deferral Period.
(e) If reasonably requested by the Initial Purchaser or any Notice Holder,
as promptly as reasonably practicable incorporate in a Prospectus supplement or
post-effective amendment to a Registration Statement such information as the
Initial Purchaser or such Notice Holder shall, on the basis of a written opinion
of nationally recognized outside legal counsel experienced in such matters,
determine to be required to be included therein by applicable law and make any
filings of such Prospectus supplement or such post-effective amendment as are
required by applicable law; provided, that the Company shall not be required to
take any actions under this Section 3(e) that are not, in the reasonable opinion
of counsel for the Company, in compliance with applicable law; provided,
further, that the Company may, in accordance with the terms of this Agreement,
deliver a Deferral Notice, in which event the provisions of Section 3(i) shall
apply.
(f) As promptly as reasonably practicable furnish to each Notice Holder and
the Initial Purchaser, upon their written request and without charge, one (1)
conformed copy of the Registration Statement and any amendment thereto,
including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
(unless requested in writing to the Company by such Notice Holder or the Initial
Purchaser, as the case may be).
(g) During the Effectiveness Period, deliver to each Notice Holder named as
a selling security holder in the Prospectus or Prospectus supplement (so long as
they hold Registrable Securities) in connection with any sale of Registrable
Securities pursuant to a Registration Statement, without charge, as many copies
of the Prospectus or Prospectuses relating to such Registrable Securities and
any amendment or supplement thereto as such Notice Holder may reasonably
request; and the Company hereby consents (except during such periods that a
Deferral Notice is outstanding and has not been revoked) to the use of such
Prospectus or each amendment or supplement thereto by each Notice Holder in
connection with any offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto in the manner set forth
therein.
(h) Subject to Section 3(i), prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration Statement, use
reasonable efforts to register or qualify or cooperate with the Notice Holders
in connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any Notice Holder reasonably requests in writing in the Notice and
Questionnaire, it being agreed that no such registration or qualification will
be required unless so requested; prior to any public offering of the Registrable
Securities pursuant to the Shelf Registration Statement, use reasonable efforts
to keep each such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period in connection with such Notice
Holder's offer and sale of Registrable Securities pursuant to such registration
or qualification (or exemption therefrom) and do any and all other acts or
things necessary to enable the disposition in such jurisdictions of such
Registrable Securities in the manner set forth in the relevant Registration
Statement and the related Prospectus; provided, that the Company will not be
required to (i) qualify as a foreign
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corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Agreement or (ii) take any action
that would subject it to general service of process in suits or to taxation in
any such jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact (a "Material Event") as a result of which the Company shall
determine in its reasonable discretion that any Registration Statement shall
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any Prospectus shall contain any untrue statement of a
material fact or omit to state any 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 (including, in any such case, as a
result of the non-availability of financial statements), or (C) the occurrence
or existence of any development, fact, event, situation or circumstance relating
to the Company that, in the sole discretion of the Company, makes it appropriate
to suspend the availability of the Shelf Registration Statement and the related
Prospectus, (i) in the case of clause (B) above, subject to the next sentence,
as promptly as practicable prepare and file a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document that would
be incorporated by reference into such Registration Statement and Prospectus so
that such Registration Statement does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and such Prospectus
does not contain any untrue statement of a material fact or omit to state any
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, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, and, in the case of a post-effective amendment
to a Registration Statement, subject to the next sentence, use reasonable
efforts to cause it to be declared effective as promptly as is reasonably
practicable, and (ii) give notice to the Initial Purchaser pursuant to Section
8(c) hereof and to the Notice Holders named as selling security holders in the
Prospectus and Prospectus supplement (so long as they hold Registrable
Securities) to the address set forth in such Notice Holder's last Notice and
Questionnaire received by the Company that the availability of the Shelf
Registration Statement is suspended (a "Deferral Notice") and, upon receipt of
any Deferral Notice, each such Notice Holder agrees not to sell any Registrable
Securities pursuant to the Registration Statement until such Notice Holder's
receipt of copies of the supplemented or amended Prospectus provided for in
clause (i) above, or until it is advised in writing by the Company that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus. The Company will use reasonable efforts to ensure that the
use of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the sole judgment of the Company, public disclosure of such Material Event would
not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as reasonably
practicable thereafter and (z) in the case of clause (C) above, as soon as, in
the sole discretion of the Company, such suspension is no longer appropriate.
The period during which the availability
10
of the Registration Statement and any Prospectus is suspended (the "Deferral
Period") shall, without the Company incurring any obligation to pay liquidated
damages pursuant to Section 2(e), not exceed forty five (45) days in any three
(3) month period and one hundred and twenty (120) days in any twelve (12) month
period.
(j) If reasonably requested in writing in connection with a disposition of
Registrable Securities pursuant to a Registration Statement, make reasonably
available for inspection during normal business hours by a representative for
the Notice Holders of such Registrable Securities and any attorneys and
accountants retained by such Notice Holders, all relevant financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the appropriate executive officers, directors and
designated employees of the Company and its subsidiaries to make reasonably
available for inspection during normal business hours all relevant information
reasonably requested by such representative for the Notice Holders or any such
attorneys or accountants in connection with such disposition, in each case as is
customary for similar "due diligence" examinations; provided, however, that such
persons shall first agree in writing with the Company that any information that
is reasonably designated by the Company in writing as confidential at the time
of delivery of such information shall be kept confidential by such persons and
shall be used solely for the purposes of exercising rights under this Agreement,
unless and until (i) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of regulatory
authorities, provided, that such persons shall as promptly as is reasonably
practicable give written notice to the Company of any request by any such
regulatory authority for any such confidential information of the Company in
order to allow the Company to seek an appropriate protective order, (ii)
disclosure of such information is required by law (including any disclosure
requirements pursuant to federal securities laws in connection with the filing
of any Registration Statement or the use of any Prospectus referred to in this
Agreement) and such person delivers to the Company a written opinion of
nationally recognized outside legal counsel experienced in such matters to that
effect prior to any disclosure of such information, (iii) such information
becomes generally available to the public other than as a result of a disclosure
or failure to safeguard by any such person or (iv) such information becomes
available to any such person from a source other than the Company and such
source is not bound by a confidentiality agreement; and provided further, that
the foregoing inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of all the Notice Holders and the other
parties entitled thereto by the counsel referred to in Section 5.
(k) Comply with all applicable rules and regulations of the SEC and make
generally available to its security holders earning statements (which need not
be audited) satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
no later than forty five (45) days after the end of any 12 month period (or
ninety (90) days after the end of any 12 month period if such period is a fiscal
year) commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statements shall cover said 12 month periods.
(l) Cooperate with each Notice Holder to facilitate the timely preparation
and delivery of certificates representing Registrable Securities sold pursuant
to a Registration Statement, and cause such Registrable Securities to be in such
denominations as are permitted by
11
the Indenture and registered in such names as such Notice Holder may request in
writing at least five Business Days prior to any sale of such Registrable
Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by each
Registration Statement not later than the effective date of such Registration
Statement and provide the Trustee for the Securities and the transfer agent for
the Common Stock with printed certificates for the Registrable Securities that
are in a form eligible for deposit with The Depository Trust Company.
(n) Make a reasonable effort to provide such information as is required for
any filings required to be made with the National Association of Securities
Dealers, Inc.
(o) Upon (i) the filing of the Initial Shelf Registration Statement and
(ii) the effectiveness of the Initial Shelf Registration Statement, announce the
same, in each case by press release or by posting such information on the
Company's website on the world-wide web.
(p) Take all actions necessary, or reasonably requested by the holders of a
majority of the Registrable Securities being sold, in order to expedite or
facilitate disposition of such Registrable Securities; provided that the Company
shall not be required to take any action not otherwise required hereby in
connection with an underwritten offering without its consent.
(q) Cause the Indenture to be qualified under the TIA not later than the
effective date of any Registration Statement; and in connection therewith,
cooperate with the Trustee to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use reasonable efforts to cause the Trustee to execute,
all documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner.
Section 4. Holder's Obligations. Each Holder agrees, by acquisition of
--------------------
the Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Registration
Statement or to receive a Prospectus relating thereto, unless such Holder has
become a Notice Holder and has furnished to the Company the information set
forth in the next sentence. Each Notice Holder agrees promptly to furnish to the
Company in writing all information required to be disclosed in order to make the
information previously furnished to the Company by such Notice Holder not
misleading, any other information regarding such Notice Holder and the
distribution of such Registrable Securities as may be required to be disclosed
in the Registration Statement under applicable law or pursuant to SEC comments
and any information otherwise reasonably required by the Company to comply with
applicable law or regulations. Each Holder further agrees to notify the Company
within ten (10) business days of request, of the amount of Registrable
Securities sold pursuant to the Registration Statement and, in the absence of a
response, the Company may assume that all of the Holder's Registrable Securities
were so sold.
Section 5. Registration Expenses. The Company shall bear all fees and
---------------------
expenses incurred in connection with the performance by the Company of its
obligations under Sections 2 and 3 of this Agreement whether or not any of the
Registration Statements are
12
declared effective. Such fees and expenses shall include, without limitation,
(i) all registration and filing fees (including, without limitation, fees and
expenses (x) with respect to filings required to be made with the National
Association of Securities Dealers, Inc. and (y) of compliance with federal and
state securities or Blue Sky laws to the extent such filings or compliance are
required pursuant to this Agreement (including, without limitation, reasonable
fees and disbursements of the counsel specified in the next sentence in
connection with Blue Sky qualifications of the Registrable Securities under the
laws of such jurisdictions as the Notice Holders of a majority of the
Registrable Securities being sold pursuant to a Registration Statement may
designate), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company), (iii) duplication expenses relating to
copies of any Registration Statement or Prospectus delivered to any Holders
hereunder, (iv) fees and disbursements of counsel for the Company in connection
with the Shelf Registration Statement, and (v) reasonable fees and disbursements
of the Trustee and its counsel and of the registrar and transfer agent for the
Common Stock. In addition, the Company shall bear or reimburse the Notice
Holders for the reasonable fees and disbursements of one firm of legal counsel
for the Holders, which shall initially be Cleary, Gottlieb, Xxxxx & Xxxxxxxx,
but which may, upon the written consent of the Initial Purchaser (which shall
not be unreasonably withheld), be another nationally recognized law firm
experienced in securities law matters designated by the Company. In addition,
the Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange on which the same securities of the Company are then listed
and the fees and expenses of any person, including special experts, retained by
the Company.
Section 6. Indemnification; Contribution. (a) The Company agrees to
-----------------------------
indemnify and hold harmless the Initial Purchaser and each Holder of Registrable
Securities and each person, if any, who controls the Initial Purchaser or any
Holder of Registrable Securities within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment or supplement thereto), including all documents
incorporated therein by reference, or the omission or alleged omission there
from of a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or
13
threatened, or of any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, provided that
(subject to Section 6(d) below) any such settlement is effected with the
prior written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above, subject to Section 6(c);
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense (including those enumerated in clauses (i), (ii) and
(iii) above) to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information, including without limitation the Notice and
Questionnaire, received by the Company from or on behalf of the Initial
Purchaser, such Holder of Registrable Securities (which also acknowledges the
indemnity provisions herein) or any person, who controls the Initial Purchaser
or any such Holder of Registrable Securities expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto); provided, further,
that this indemnity shall not apply to any loss, liability, claim, damage or
expense (1) arising from an offer or sale of Registrable Securities occurring
during a Deferral Period, if the applicable Notice Holder received a Deferral
Notice, or (2) if the Holder fails to deliver at or prior to written
confirmation of sale, the most recent prospectus, as amended or supplemented,
and such Prospectus, as amended or supplemented, would have corrected such
untrue statement or omission or alleged untrue statement or omission of a
material fact.
(b) In connection with any Shelf Registration Statement in which a Holder,
including, without limitation, the Initial Purchaser, of Registrable Securities
is participating, in furnishing information relating to such Holder of
Registrable Securities to the Company in writing expressly for use in such
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto, the holders of such Registrable Securities
agree, severally and not jointly, to indemnify and hold harmless the Initial
Purchaser and each person, if any, who controls the Initial Purchaser within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act and the Company, and each person, if any, who controls the Company within
the meaning of either such Section, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information received by the Company from or on behalf of
such Holder of Registrable Securities (which also acknowledges the indemnity
provisions herein) or any person, who controls any such Holder of Registrable
Securities expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
14
The Initial Purchaser agrees to indemnify and hold harmless the Company,
the Holders of Registrable Securities, and each person, if any, who controls the
Company or any Holder of Registrable Securities within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements omissions, made
in the Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Initial Purchaser expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of these indemnity provisions. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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 at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 45
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement; provided, that an indemnifying
party shall not be liable for any such settlement effected without its consent
if such indemnifying party (1) reimburses such indemnified party in accordance
with such request to the extent it considers such request to be reasonable and
(2) provides written notice to the indemnified party describing any unpaid
balance it believes is unreasonable and the reasons therefor, in each case prior
to the date of such settlement.
15
(e) If the indemnification provided for in this Section 6 is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the holders of the
Registrable Securities or the Initial Purchaser on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
Holder of the Registrable Securities or the Initial Purchaser and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 6(e). The
aggregate amount of losses, liabilities, claims, damages, and expenses incurred
by an indemnified party and referred to above in this Section 6(e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, no Holder of any
Registrable Securities shall be required to indemnify or contribute, and the
Initial Purchaser shall not be required to contribute, any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such Holder of Registrable Securities or Initial Purchaser exceeds the amount of
any damages that such Holder of Registrable Securities or Initial Purchaser 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 Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6(e), each person, if any, who controls the
Initial Purchaser or any Holder of Registrable Securities within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Initial Purchaser or such Holder, and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company.
16
Section 7. Information Requirements. The Company covenants that, if at
------------------------
any time before the end of the Effectiveness Period the Company is not subject
to the reporting requirements of the Exchange Act, it will cooperate with any
Holder of Registrable Securities and take such further reasonable action as any
Holder of Registrable Securities may reasonably request in writing (including,
without limitation, making such reasonable representations as any such Holder
may reasonably request), all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144 and
Rule 144A under the Securities Act and customarily taken in connection with
sales pursuant to such exemptions. Upon the written request of any Holder of
Registrable Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such filing requirements, unless
such a statement has been included in the Company's most recent annual or
quarterly report required to be filed and filed pursuant to Section 13 or
Section 15(d) of Exchange Act. Notwithstanding the foregoing, nothing in this
Section 7 shall be deemed to require the Company to register any of its
securities under any section of the Exchange Act.
Section 8. Miscellaneous.
-------------
(a) No Conflicting Agreements. The Company is not, as of the date hereof, a
-------------------------
party to, nor shall it, on or after the date of this Agreement, enter into, any
agreement with respect to its securities that conflicts with the rights granted
to the Holders of Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the Holders of Registrable
Securities hereunder do not conflict with the rights granted to the holders of
the Company's securities under any other agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including the
----------------------
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority of
the then outstanding Underlying Common Stock constituting Registrable Securities
(with Holders of Securities deemed to be the Holders, for purposes of this
Section, of the number of outstanding shares of Underlying Common Stock into
which such Securities are or would be convertible or exchangeable as of the date
on which such consent is requested). Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Securities whose
Securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement;
provided, that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Each Holder of Registrable Securities outstanding at the
time of any such amendment, modification, supplement, waiver or consent or
thereafter shall be bound by any such amendment, modification, supplement,
waiver or consent effected pursuant to this Section 8(b), whether or not any
notice, writing or marking indicating such amendment, modification, supplement,
waiver or consent appears on the Registrable Securities or is delivered to such
Holder.
17
(c) Notices. All notices and other communications provided for or permitted
-------
hereunder shall be made in writing by hand delivery, by telecopier, by courier
guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i)when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
if to a Holder of Registrable Securities, at the most current address given
by such Holder to the Company in a Notice and Questionnaire or any amendment
thereto;
if to the Company, to:
Amgen Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Corporate Secretary
Telecopier number: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Telecopier number: (000) 000-0000
and
if to the Initial Purchaser, to:
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
Facsimile: (000) 000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders of a
-------------------
specified percentage of Registrable Securities is required hereunder, the
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchaser
or subsequent Holders of Registrable Securities if such subsequent Holders are
deemed to be such affiliates solely by reason of their holdings of such
18
Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any Registrable
----------------------
Securities from the Initial Purchaser shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Purchaser. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities.
(f) Third Party Beneficiaries. The Initial Purchaser (even if the Initial
-------------------------
Purchaser is not a Holder of Registrable Securities) shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Holders, on the other hand, and shall have the right to enforce
such agreements directly to the extent they deem such enforcement necessary or
advisable to protect their rights or the rights of Holders hereunder. Each
Holder of Registrable Securities shall be a third party beneficiary to the
agreements made hereunder between the Company, on the one hand, and the Initial
Purchaser, on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
(j) Severability. If any term, provision, covenant or restriction of this
------------
Agreement is held to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby, and the parties hereto shall use their best efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction, it
being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(k) Entire Agreement. This Agreement is intended by the parties as a final
----------------
expression of their agreement and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and the registration rights granted by the
Company with respect to the Registrable Securities. Except as provided in the
Purchase Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Company with respect to the Registrable
Securities. This
19
Agreement supersedes all prior agreements and undertakings among the parties
with respect to such registration rights.
(l) Termination. This Agreement and the obligations of the parties
-----------
hereunder shall terminate upon the expiration of the Effectiveness Period,
except for (i)(A) any liabilities or obligations under Sections 4, 5 or 6 hereof
and (B) for the obligations to make payments of and provide for liquidated
damages under Section 2(e) hereof to the extent such damages accrue prior to the
end of the Effectiveness Period, each of which shall remain in effect in
accordance with its terms and (ii) for the obligations regarding confidential
information contained in Section 3(j).
[Remainder of this page intentionally left blank]
20
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
AMGEN INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President, Finance,
Strategy and Communications, and
Chief Financial Officer
Confirmed and accepted as of the date
first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx Xxxx
--------------------------
Name: Xxxxx Xxxx
Title: Vice President
21
