EXHIBIT 4.5
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
between
AMGEN INC.
and
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
Dated as of November 18, 2004
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
November 18, 2004, is entered into by and between AMGEN INC., a Delaware
corporation (the "COMPANY"), and MORGAN STANLEY & CO. INCORPORATED and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, acting on behalf of the several
parties named in Schedule I (the "INITIAL PURCHASERS") to the Purchase Agreement
(as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated as
of November 15, 2004, between the Company and the Initial Purchasers (the
"PURCHASE AGREEMENT"), which provides for the sale by the Company to the Initial
Purchasers of (i) an aggregate of $1,000,000,000 principal amount of the
Company's 4.00% Senior Notes Due 2009 (the "2009 NOTES") and (ii) an aggregate
of $1,000,000,000 principal amount of the Company's 4.85% Senior Notes Due 2014
(the "2014 NOTES" and, together with the 2009 Notes, the "SECURITIES"). In order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
have the following meanings:
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"AGREEMENT" has the meaning set forth in the preamble.
"BUSINESS DAY" means any day, other than a Saturday or Sunday, that
is not a day on which banking institutions in the Borough of Manhattan,
City of New York, are authorized or required by law, regulation or
executive order to close.
"CLOSING DATE" means the Closing Date as defined in the Purchase
Agreement.
"COMPANY" has the meaning set forth in the preamble and includes the
Company's successors.
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"EXPIRATION DATE" has the meaning set forth in Section 2(a)(ii).
"EXCHANGE OFFER" means the exchange offer by the Company of Exchange
Securities for Registrable Securities pursuant to Section 2(a).
"EXCHANGE OFFER REGISTRATION" means a registration under the 1933
Act effected pursuant to Section 2(a).
"EXCHANGE OFFER REGISTRATION STATEMENT" means an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form) and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all materials incorporated by reference therein.
"EXCHANGE SECURITIES" means securities issued by the Company under
the Indenture containing terms identical to the Securities (except that
(i) interest thereon shall accrue from the last date on which interest was
paid on the Securities or, if no such interest has been paid, from
November 18, 2004, and (ii) the Exchange Securities will not contain
restrictions on transfer) and to be offered to Holders of Securities in
exchange for Securities pursuant to the Exchange Offer.
"HOLDER" means a Person who owns, beneficially or of record,
Registrable Securities. It is understood and agreed that it is currently
contemplated that the Securities and the Exchange Securities will
initially be issued in global form and that, until such time, if any, as
certificates are issued therefor, the only registered holder of the
Securities and the Exchange Securities will be the nominee of The
Depository Trust Company.
"INDENTURE" means the Indenture, dated as of August 4, 2003, between
the Company and JPMorgan Chase Bank, N.A., as trustee, as the same may be
amended from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS" has the meaning set forth in the preamble.
"MAJORITY HOLDERS" means the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities; provided, however,
that whenever the consent or approval of Holders of a specified percentage
of Registrable Securities is required hereunder, Registrable Securities
held by the Company or any of its affiliates (as such term is defined in
Rule 405 under the 1933 Act) (other than the Initial Purchasers or
subsequent Holders of Registrable Securities, if such subsequent Holders
are deemed to be affiliates solely by reason of their holding of such
Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage
or amount.
"PARTICIPATING BROKER-DEALER" means any broker-dealer that receives
Exchange
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Securities for its own account in the Exchange Offer in exchange for
Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities.
"PERSON" means an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"PROSPECTUS" means the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to such prospectus,
and in each case including all material incorporated by reference therein.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble.
"REGISTRABLE SECURITIES" means the Securities; provided, however,
that Securities shall cease to be Registrable Securities (i) when a
Registration Statement with respect to such Securities has been declared
effective under the 1933 Act and such Securities have been disposed of
pursuant to such Registration Statement, (ii) when such Securities have
been exchanged for Exchange Securities that may be resold to the public
without complying with the prospectus delivery requirements of the 1933
Act in an Exchange Offer as contemplated pursuant to Section 2(a) hereof
(provided that any Exchange Security that, pursuant to the last sentence
of Section 2(a), is included in a prospectus for use in connection with
resales by Participating Broker-Dealers shall be deemed to be a
Registrable Security with respect to Sections 3, 5 and 6 until resale of
such Registrable Securities have been effected within the Resale Period,
(iii) when such Securities have been sold to the public pursuant to Rule
144 or are saleable to the public pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the 1933 Act or (iv)
when such Securities have ceased to be outstanding.
"REGISTRATION DEFAULT" has the meaning set forth in Section 4(a).
"REGISTRATION EXPENSES" means any and all expenses incident to the
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky
laws (including reasonable and documented fees and disbursements of one
counsel for any Underwriters or Holders in connection with blue sky
qualification of any of the Exchange Securities or Registrable
Securities), (iii) all expenses of any Persons in preparing or assisting
in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv)
all rating agency fees, (v) all
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fees and disbursements relating to the qualification of the Indenture
under applicable securities laws, (vi) the fees and disbursements of the
Trustee and its counsel, (vii) the fees and disbursements of counsel for
the Company and, in the case of a Shelf Registration Statement, the
reasonable and documented fees and disbursements of one counsel for the
Holders (which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchasers) and (viii) the
fees and disbursements of the independent public accountants of the
Company, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, but
excluding fees and expenses of counsel to the Underwriters (other than
fees and expenses set forth in clause (ii) above) or the Holders and
underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a Holder.
"REGISTRATION STATEMENT" means any registration statement of the
Company that covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement and all amendments
and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"RESALE PERIOD" has the meaning set forth in Section 2(a).
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning set forth in the preamble.
"SHELF REGISTRATION" means a registration effected pursuant to
Section 2(b).
"SHELF REGISTRATION STATEMENT" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) which
covers all of the Registrable Securities (but no other securities unless
approved by the Holders whose Registrable Securities are covered by such
Shelf Registration Statement) on an appropriate form under Rule 415 under
the 1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SPECIAL INTEREST" has the meaning set forth in Section 4(a).
"TIA" means the Trust Indenture Act of 1939, as amended.
"TRUSTEE" means the trustee with respect to the Securities under the
Indenture.
"UNDERWRITER" has the meaning set forth in Section 3.
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"UNDERWRITTEN OFFERING" means a registration in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the staff of the SEC, the Company shall prepare and, not later
than 180 days following the Closing Date (or if such 180th day is not a Business
Day, the next succeeding Business Day), shall use its reasonable efforts to file
with the SEC the Exchange Offer Registration Statement with respect to the
Exchange Offer. The Company shall use its reasonable efforts to (i) cause the
Exchange Offer Registration Statement to become effective under the 1933 Act
within 270 days of the Closing Date (or if such 270th day is not a Business Day,
the next succeeding Business Day) and (ii) consummate the Exchange Offer within
310 days of the Closing Date (or if such 310th day is not a Business Day, the
next succeeding Business Day).
Upon the effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Exchange Offer by delivering the related
exchange offer Prospectus and accompanying documents, if any, to each Holder
stating, in addition to such other disclosures as are required by applicable
law:
(i) that the Exchange Offer is being made pursuant to this Registration
Rights Agreement and that all Registrable Securities validly tendered will
be accepted for exchange;
(ii) the expiration date for acceptance for exchange (which shall be a
date at least 20 Business Days from the date such Prospectus is delivered,
and which may be extended by the Company from time to time pursuant to the
procedures set forth in such Prospectus) (the "EXPIRATION Date");
(iii) that any Registrable Security not tendered will remain outstanding
and continue to accrue interest, but will not retain any rights under this
Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the enclosed letters of transmittal,
if any, to the institution and at the address specified in the notice
prior to the close of business on the Expiration Date; and
(v) that Holders will be entitled to withdraw their election, not later
than the close of business on the Expiration Date, by sending to the
institution and at the address specified in such Prospectus a written or
facsimile notice of withdrawal setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing its election to have such
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Securities exchanged.
As soon as reasonably practicable after the Expiration Date, the
Company shall:
(i) accept for exchange Registrable Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation
all Registrable Securities or portions thereof so accepted for exchange by
the Company and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, an Exchange Security equal in principal amount to
the principal amount of the Registrable Securities surrendered by such
Holder.
The Company shall use its reasonable efforts to complete the Exchange Offer as
provided above and shall comply with the applicable requirements of the 1933
Act, the 1934 Act and other applicable laws and regulations in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions,
other than that the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the SEC.
The Company agrees (x) to include in the Exchange Offer Registration
Statement a prospectus for use in any resales by any holder of Exchange
Securities that is a Participating Broker-Dealer and (y) to use reasonable
efforts to keep such Exchange Offer Registration Statement effective for a
period of 90 days after the Expiration Date (as such period may be extended
pursuant to the penultimate paragraph of Section 3 of this Agreement) (the
"RESALE Period").
(b) In the event that (i) the Company determines that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be
consummated within a reasonable period of time after the Expiration Date because
it would violate applicable law or the applicable interpretations of the staff
of the SEC, (ii) the Exchange Offer is not for any other reason consummated
within 310 days of the Closing Date or (iii) the Exchange Offer has been
completed and in the opinion of counsel for the Initial Purchasers, in a form
reasonably satisfactory to the Company, a Registration Statement must be filed
and a Prospectus must be delivered by the Initial Purchasers in connection with
any offering or sale of Registrable Securities, the Company shall use its
reasonable efforts to cause to be filed as soon as practicable after such
determination, date or notice of such opinion of counsel is given to the
Company, as the case may be, a Shelf Registration Statement providing for the
sale by the Holders of all of the Registrable Securities and shall use its
reasonable efforts to have such Shelf Registration Statement declared effective
by the SEC, provided, that, in no event shall the Company be required to file or
cause to be declared effective such Shelf Registration Statement before the date
on which it is required to file or cause to be declared effective, as
applicable, the Exchange Offer Registration Statement pursuant to Section 2(a).
In the event the Company is required to file a Shelf Registration Statement
solely as a result of the matters referred to in clause (iii) of the preceding
sentence, the Company shall file and use its reasonable efforts to have declared
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effective by the SEC both an Exchange Offer Registration Statement pursuant to
Section 2(a) with respect to all Registrable Securities and a Shelf Registration
Statement (which may be a combined Registration Statement with the Exchange
Offer Registration Statement) with respect to offers and sales of Registrable
Securities held by the Initial Purchasers after completion of the Exchange
Offer. The Company agrees to use its reasonable efforts to keep the Shelf
Registration Statement continuously effective until the expiration of the period
referred to in Rule 144(k) with respect to the Registrable Securities or such
shorter period that will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement. The Company further agrees to supplement or 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, by the 1933 Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder with respect to information relating to such Holder, and to use its
reasonable efforts to cause any such amendment to become effective and such
Shelf Registration Statement to become usable as soon as reasonably practicable
thereafter. The Company agrees to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(c) The Company shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay
all underwriting discounts and commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder's Registrable Securities pursuant to
the Shelf Registration Statement.
(d) Without limiting the remedies available to the Initial Purchasers and
the Holders, the Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and Section 2(b) may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2(a) and Section
2(b).
3. Registration Procedures.
In connection with the obligations of the Company with respect to
the Registration Statements pursuant to Section 2(a) and Section 2(b), the
Company shall:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by
the Company and (y) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling
Holders thereof and (z) shall comply as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith, and use its
reasonable efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2;
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(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 effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and,
as so supplemented, to be filed pursuant to Rule 424 under the 1933 Act;
to keep each Prospectus current during the period described under Section
4(3) and Rule 174 under the 1933 Act that is applicable to transactions by
brokers or dealers with respect to the Registrable Securities or Exchange
Securities;
(c) in the case of a Shelf Registration, furnish to each selling
Holder of Registrable Securities, to counsel for the Initial Purchasers,
to counsel for the Holders and to each Underwriter of an Underwritten
Offering of Registrable Securities, if any, without charge, as many copies
of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder or
Underwriter may reasonably request, in order to facilitate the public sale
or other disposition of the Registrable Securities; and the Company
consents to the use of such Prospectus and any amendment or supplement
thereto in accordance with applicable law by each of the selling Holders
of Registrable Securities and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto
in accordance with applicable law;
(d) use its reasonable efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder of Registrable Securities covered
by a Registration Statement shall reasonably request in writing by the
time the applicable Registration Statement is declared effective by the
SEC, to cooperate with reasonable requests by such Holders in connection
with any filings required to be made with the National Association of
Securities Dealers, Inc. and do any and all other acts and things which
may be reasonably necessary to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities owned
by such Holder; provided, however, that, without limiting the foregoing,
the Company shall not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (ii) file any
general consent to service of process, (iii) subject itself to taxation in
any such jurisdiction if it is not so subject or (iv) make any changes to
its certificate of incorporation or bylaws;
(e) in the case of a Shelf Registration, notify each selling Holder
of Registrable Securities, counsel for the Holders and counsel for the
Initial Purchasers promptly (i) when a Registration Statement has become
effective and when any post-effective amendment thereto has been filed and
becomes effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration
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Statement has become effective, (iii) of the issuance by the SEC or any
state securities authority of any stop order suspending the effectiveness
of a Registration Statement or the initiation of any proceedings for that
purpose, (iv) of the happening of any event during the period a Shelf
Registration Statement is effective which makes any statement made in such
Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not
misleading and (v) of any determination by the Company that a
post-effective amendment to a Registration Statement would be required by
applicable law;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest practicable date;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities upon written request therefor, without charge, one
conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
and not bearing any restrictive legends and enable such Registrable
Securities to be in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders may
reasonably request in writing at least five Business Days prior to the
closing of any sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(iv), use its reasonable efforts to
prepare and file with the SEC a supplement or post-effective amendment to
a Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The Company agrees to notify the selling Holders to
suspend use of the Prospectus as promptly as reasonably practicable after
the occurrence of such an event, and such Holders hereby agree to suspend
use of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission;
(j) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(k) cause the Indenture to be qualified under the TIA, in connection
with the
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registration of the Exchange Securities or Registrable Securities, as the
case may be, cooperate with the Trustee and the Holders 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 its
reasonable best 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;
(l) in the case of a Shelf Registration, make available for
inspection by any Underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and attorneys and accountants
designated by such Underwriter, at reasonable times and in a reasonable
manner, all financial and other records, pertinent documents and
properties of the Company, and cause the respective officers, directors
and employees of the Company to supply all information reasonably
requested by any such Underwriter, attorney or accountant in connection
with a Shelf Registration Statement;
(m) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, (i) as promptly as reasonably
practicable incorporate in a Prospectus supplement or post-effective
amendment such information with respect to such Holder as such Holder
reasonably requests to be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment
after the Company has received written notification of the matters to be
incorporated in such filing, and, in the case of a post-effective
amendment, use its reasonable best efforts to have the post-effective
amendment declared effective; and
(n) in the case of a Shelf Registration, enter into such customary
underwriting agreements or similar agreements and take all such other
customary actions in connection therewith as any selling Holders
aggregating at least a majority of the Registrable Securities being sold
may reasonably request in order to expedite or facilitate the disposition
of such Registrable Securities including, but not limited to, pursuant to
an Underwritten Offering and in such connection, (i) to the extent
reasonably practicable, make such representations and warranties to the
Holders and any Underwriters of such Registrable Securities with respect
to the business of the Company and its subsidiaries, the Registration
Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested, (ii) obtain opinions
of counsel to the Company (which counsel may be the Company's general
counsel or assistant general counsel and which opinions, in form, scope
and substance, shall be reasonably satisfactory to the Holders and such
Underwriters and their respective counsel) addressed to each selling
Holder and Underwriter of Registrable Securities (it being agreed that the
matters to be covered by any such opinion shall include the due
incorporation, valid existence and good standing of the Company; the
qualification of the Company to transact business as a foreign
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corporation; the due authorization, execution and delivery of the relevant
agreements of the type referred to in this Section 2(o); the due
authorization, execution, authentication, issuance and delivery, and the
validity and enforceability of the Registrable Securities; the absence of
governmental approvals required to be obtained in connection with the
Shelf Registration Statement, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or any
agreement of the type referred to in Section 2(o), except such approvals
as may be required under state securities or blue sky laws; the material
compliance as to form of such Shelf Registration Statement and any
documents incorporated by reference therein and of the Indenture with the
requirements of the 1933 Act and the TIA and the rules and regulations of
the SEC thereunder, respectively; and, as of the date of the opinion and
of the Shelf Registration Statement or most recent post-effective
amendment thereto, as the case may be, the absence from such Shelf
Registration Statement and the prospectus included therein, as then
amended or supplemented, and from the documents incorporated by reference
therein (in each case other than the financial statements and other
financial information contained therein) of an untrue statement of a
material fact or the omission to state therein a material fact necessary
to make the statements therein not misleading (in the case of such
documents, in the light of the circumstances existing at the time that
such documents were filed with the SEC under the 1934 Act)), (iii) obtain
"cold comfort" letters from the independent certified public accountants
of the Company (and, if necessary, any other certified public accountant
of any subsidiary of the Company, or of any business acquired by the
Company for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to each
selling Holder and Underwriter of Registrable Securities, such letters to
be in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings, and
(iv) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority in principal amount of the
Registrable Securities being sold or the Underwriters, and which are
customarily delivered in underwritten offerings, to evidence the continued
validity of the representations and warranties of the Company made
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may
require each Holder of Registrable Securities to furnish to the Company such
information in writing regarding the Holder and the proposed distribution by
such Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 3(e)(iv), such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(i), and, if so directed by the
Company, such Holder will deliver to the Company (at its expense) all copies in
its possession,
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other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Securities pursuant to a Registration Statement, the
Company shall extend the period during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date when the Holders shall have received copies of the supplemented or
amended Prospectus necessary to resume such dispositions. The Company may give
any such notice only twice during any 365 day period and any such suspensions
may not exceed 45 days in any three month period or 120 days in any 12 month
period. No Special Interest shall accrue or be payable during any such
suspension period.
The Holders of Registrable Securities covered by a Shelf
Registration Statement who desire to do so may sell such Registrable Securities
in an Underwritten Offering. In any such Underwritten Offering, the investment
banker or investment bankers and manager or managers (the "UNDERWRITERS") that
will administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Special Interest.
(a) The parties acknowledge that the Holders of Securities or
Exchange Securities, as the case may be, will suffer damages if the Company
fails to perform its obligations under Section 2 or 3 and that it would not be
feasible to ascertain the extent of such damages. Accordingly, in the event
that:
(i) neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement has been filed on or prior to the 180th day
following the Closing Date;
(ii) neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement has been declared effective on or prior to
the 270th day following the Closing Date;
(iii) the Exchange Offer has not been consummated on or prior
to the 310th day following the Closing Date (if the Exchange Offer is then
required to be completed); or
(iv) after either the Exchange Offer Registration Statement or
Shelf Registration Statement has been declared effective, such
Registration Statement ceases to be effective or usable in connection with
the Exchange Offer or resales of the Securities during a period in which
it is required to be effective hereunder (taking into account the
suspension periods provided for in the penultimate paragraph of Section 3)
without being succeeded within five Business Days by any additional
Registration Statement or post-
12
effective amendment covering the Securities or the Exchange Securities, as
the case may be, which has been filed and declared effective;
(each such event referred to in the foregoing clauses (i) through (iv), a
"REGISTRATION DEFAULT"), then special interest ("SPECIAL INTEREST") will accrue
on the principal amount of the Securities and the Exchange Securities,
respectively (in addition to the stated interest on the Securities and the
Exchange Securities), from and including the date on which any Registration
Default first occurs and while any such Registration Default has occurred and is
continuing, to but excluding the date on which all filings, declarations of
effectiveness and consummations, as the case may be, have been achieved which,
if achieved on a timely basis, would have prevented the occurrence of all of the
then existing Registration Defaults. Special Interest will accrue at a rate of
0.25% per annum during the 90-day period immediately following such first
occurrence of a Registration Default and while any such Registration Default has
occurred and is continuing, and shall increase to 0.50% per annum for any
additional days after such 90-day period during which a Registration Default had
occurred and is continuing, until the date on which all of the filings,
declarations of effectiveness and consummations referred to in the preceding
sentence have been achieved, on which date the interest rate on the Securities
and the Exchange Securities, respectively, will revert to the interest rate
originally borne by such notes.
(b) The Company shall notify the Trustee immediately upon its
knowledge of the happening of each and every Registration Default.
(c) The Company shall pay the Special Interest due on the Securities
or Exchange Securities, as the case may be, by depositing with the Trustee, in
trust, for the benefit of the Holders thereof, prior to 10:00 a.m. on the next
interest payment date specified in the Indenture sums sufficient to pay the
Special Interest then due. The Special Interest due shall be payable on each
interest payment date specified by the Indenture to the record holders entitled
to receive the interest payment to be made on such date.
(d) The parties agree that the Special Interest provided for in this
Section 4 constitutes a reasonable estimate of the damages that will be suffered
by Holders of Securities or Exchange Securities by reason of the happening of
any Registration Default.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, each Holder and each Person, if any, who controls each Initial
Purchaser or any Holder within the meaning of either Section 15 of the 1933 Act
or Section 20 of the 1934 Act, or is under common control with, or is controlled
by, any Initial Purchaser or any Holder, from and against all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Initial Purchaser, any Holder or any such
controlling or affiliated Person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment thereto) pursuant to which Exchange Securities or
13
Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or caused by any
untrue statement or alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to an indemnified party furnished to the Company in
writing by or on behalf of such indemnified party expressly for use therein,
provided however that, the foregoing indemnity with respect to any preliminary
Prospectus shall not inure to the benefit of any Holder from whom the person
asserting any such losses, claims, damages or liabilities purchased Securities,
or any person controlling such Holder, if a copy of the final Prospectus (as
then amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of such Holder to
such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Securities to such person, and if the
final Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability. In connection with any
Underwritten Offering permitted by Section 3, the Company will also indemnify
the Underwriters, if any, participating in the distribution, their officers and
directors and each Person who controls such Persons (within the meaning of the
1933 Act and the 1934 Act) to the same extent as provided above with respect to
the indemnification of the Holders, if requested in connection with any
Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, each Initial Purchaser and the other selling Holders, and
each of their respective directors, officers who sign the Registration Statement
and each Person, if any, who controls the Company, any Initial Purchaser and any
other selling Holder within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the same extent as the foregoing indemnity from
the Company to each of the Initial Purchasers and the Holders, but only with
reference to information relating to such Holder furnished to the Company in
writing by such Holder expressly for use in any Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such Person (the
"INDEMNIFIED PARTY") shall promptly notify the Person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any
14
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
(a) the reasonable and documented fees and expenses of more than one separate
firm (in addition to any local counsel) for the Initial Purchasers and all
Persons, if any, who control any Initial Purchaser within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, (b) the reasonable and
documented fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each Person, if any, who controls the Company within
the meaning of either such Section and (c) the reasonable and documented fees
and expenses of more than one separate firm (in addition to any local counsel)
for all Holders and all Persons, if any, who control any Holders within the
meaning of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In such case involving any Initial Purchaser
and Persons who control any Initial Purchaser, such firm shall be designated in
writing by Morgan Stanley & Co. Incorporated. In such case involving the Holders
and such Persons who control Holders, such firm shall be designated in writing
by the Majority Holders. In all other cases, such firm shall be designated by
the Company. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph (b)
of this Section 5 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
15
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Holders shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Holders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 5(d) are several
in proportion to the respective principal amount of Registrable Securities of
such Holder that were registered pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 5, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Securities
were sold by such Holder exceeds the amount of any damages that such Holder 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 1933 Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section
5 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Initial Purchaser, any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company, its officers or
directors or any Person controlling the Company, (iii) acceptance of any of the
Exchange Securities and (iv) any sale of Registrable Securities pursuant to a
Shelf Registration Statement.
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6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into, and on
or after the date of this Agreement will not enter into, any agreement which is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such 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 at least
a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
consent; provided, however, that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 shall be effective
as against any Holder of Registrable Securities unless consented to in writing
by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(c).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next Business Day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement,
17
and by taking and holding such Registrable Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof. The Initial Purchasers (in their capacity as
Initial Purchasers) shall have no liability or obligation to the Company with
respect to any failure by a Holder to comply with, or any breach by any Holder
of, any of the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company shall not, and shall
use its reasonable efforts to cause its affiliates (as defined in Rule 405 under
the 1933 Act) not to, purchase and then resell or otherwise transfer any
Securities.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, 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 as Holders 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 an 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 the laws of the
State of New York, including, without limitation, Section 5-1401 of the New York
General Obligations Law.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Section References. Unless otherwise indicated, references in
this Agreement to sections are to the sections of this Agreement.
(l) Termination. This Agreement shall terminate when there are no
longer any Registrable Securities, except for (i) any liabilities or obligations
under Section 2(c) and Section 5 and (ii) the Company's obligation to make
payments of, and to provide for, Special Interest under Section 4, to the extent
Special Interest accrued prior to such time, each of which shall remain in
effect in accordance with its terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
AMGEN INC.
By /s/ Richard D. Nanula
-----------------------------------
Name: Richard D. Nanula
Title: Executive Vice President and
Chief Financial Officer
Confirmed and accepted as of
the date first above written:
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: MORGAN STANLEY & Co. INCORPORATED
By /s/ Harold J. Hendershot III
----------------------------------
Name: Harold J. Hendershot III
Title: Executive Director