EXHIBIT 10.1
EXECUTION COPY
AMGEN INC.
$1,000,000,000 4.00% SENIOR NOTES DUE 2009
$1,000,000,000 4.85% SENIOR NOTES DUE 2014
PURCHASE AGREEMENT
Dated as of November 15, 2004
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Barclays Capital Inc.
Bear, Stearns & Co. Inc.
Citigroup Global Markets Inc.
Credit Suisse First Boston LLC
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Mitsubishi Securities International plc
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
Amgen Inc., a Delaware corporation (the "COMPANY"), proposes to issue and
sell to the several purchasers named in Schedule I hereto (the "INITIAL
PURCHASERS") $1,000,000,000 principal amount of its 4.00% Senior Notes due 2009
(the "2009 NOTES") and $1,000,000,000 principal amount of its 4.85% Senior Notes
due 2014 (the "2014 NOTES" and, together with the 2009 Notes, the "SECURITIES")
to be issued pursuant to the provisions of an Indenture, dated as of August 4,
2003, between the Company and JP Morgan Chase Bank, N.A., as Trustee (the
"TRUSTEE") (the "INDENTURE").
Pursuant to the transactions contemplated by this purchase agreement (this
"AGREEMENT"), the Securities will be offered and sold to the Initial Purchasers
and reoffered by the Initial Purchasers without being registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act and in offshore transactions in reliance
on Regulation S under the Securities Act ("REGULATION S").
The Initial Purchasers and their direct and indirect transferees
("SUBSEQUENT PURCHASERS") will be entitled to the benefits of a Registration
Rights Agreement, dated as of November 18, 2004, between the Company and the
Initial Purchasers (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the offering of the Securities, the Company has
prepared a preliminary offering memorandum (the "PRELIMINARY MEMORANDUM") and
will prepare a final offering memorandum (the "FINAL MEMORANDUM" and, together
with the Preliminary Memorandum, each a "MEMORANDUM") including or incorporating
by reference a description of the
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terms of the Securities, the terms of the offering and a description of the
Company. As used herein, the term "Memorandum" shall include in each case the
documents incorporated by reference therein. The terms "SUPPLEMENT," "AMENDMENT"
and "AMEND" as used herein with respect to a Memorandum shall include all
documents deemed to be incorporated by reference in the Preliminary Memorandum
or Final Memorandum that are filed subsequent to the date of such Memorandum
with the Securities and Exchange Commission (the "COMMISSION") pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"). "Memorandum"
means, with respect to any date or time referred to in this Agreement, the most
recent memorandum (whether the Final Memorandum, or any amendment or supplement
to such document), including exhibits thereto and any documents incorporated by
reference therein, that has been prepared and delivered by the Company to the
Initial Purchasers in connection with their offering of the Securities.
1. Representations and Warranties. (a) The Company represents and
warrants to, and agrees with, you that as of the date hereof and as of the
Closing Date:
(i) The Final Memorandum, as of its date and at the Closing Date,
will not contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading, provided that
this representation, warranty and agreement shall not apply to statements
in or omissions from the Memorandum made in reliance on and in conformity
with information furnished in writing by any Initial Purchaser to the
Company expressly for use in such Memorandum.
(ii) The Memorandum as delivered from time to time shall
incorporate by reference the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 2003; the Company's Quarterly Reports on
Form 10-Q for the quarterly periods ended March 31, 2004, June 30, 2004,
and September 30, 2004; and the Company's Current Reports on Form 8-K
filed with the Commission on March 29, 2004 and October 12, 2004. The
documents incorporated or deemed to be incorporated by reference in the
Memorandum at the time they were or hereafter are filed, or, if amended,
as so amended, with the Commission complied and, with respect to future
filings, will comply, in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder (the "1934 ACT REGULATIONS"), and, when read together with the
other information in the Memorandum, at the date of the Memorandum and at
the Closing Date, will not include an untrue statement of a material fact
or omit to state a material fact
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required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading.
(iii) Ernst & Young, LLP, which has audited certain consolidated
financial statements of the Company and its consolidated subsidiaries to
be incorporated by reference in the Memorandum, are independent registered
public accountants with respect to the Company and its subsidiaries within
the meaning of Regulation S-X under the Securities Act.
(iv) The consolidated financial statements included in the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 2003 and incorporated by reference in the Memorandum present fairly,
in all material respects, the financial position of the Company and its
consolidated subsidiaries at December 31, 2003 and 2002 and the statements
of operations and cash flows of the Company and its consolidated
subsidiaries for each of the three years in the period ended December 31,
2003 in conformity with accounting principles generally accepted in the
United States ("GAAP"). The related financial statement schedules, when
considered in relation to the basic consolidated financial statements
taken as a whole, present fairly in all material respects the information
set forth therein.
(v) Since the respective dates as of which information is given in
the Final Memorandum, except as otherwise stated therein, (A) there has
been no material adverse change in the financial condition or in the
earnings of the Company and its subsidiaries considered as one enterprise,
(B) there have been no transactions entered into by the Company or any of
its subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock not described in the Final Memorandum.
(vi) Each of the Company, Amgen Manufacturing, Limited, a Bermuda
corporation ("Amgen Manufacturing") and Immunex Corporation, a Washington
corporation ("Immunex" and, together with Amgen Manufacturing, the
"SIGNIFICANT SUBSIDIARIES"), has been duly incorporated or organized and
is validly existing in good standing under the laws of the jurisdiction in
which it is incorporated, chartered or organized with the corporate power
and authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Memorandum and is
duly qualified to do business as a foreign corporation or organization and
is in good standing under the laws
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of each jurisdiction which requires such qualification, except, in each
case, where the failure so to qualify or to be in good standing would not
have a material adverse effect on the financial condition of the Company
and its subsidiaries, considered as one enterprise (a "MATERIAL ADVERSE
EFFECT").
(vii) All the issued and outstanding shares of capital stock of the
Significant Subsidiaries have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as may be otherwise set
forth in the Memorandum, all outstanding shares of capital stock of the
Significant Subsidiaries are owned by the Company either directly or
through a wholly-owned subsidiary free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of the Significant Subsidiaries was
issued in violation of the preemptive or similar rights of any
securityholder of either Significant Subsidiary.
(viii) Neither of the Significant Subsidiaries is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such subsidiary's capital
stock, from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such subsidiary's
property or assets to the Company or any other subsidiary of the Company,
except as may be described in or contemplated by the Memorandum and except
as would not result in a Material Adverse Effect.
(ix) The outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
nonassessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or similar rights of any
security holder of the Company.
(x) This Agreement has been duly authorized, executed and
delivered by the Company.
(xi) At the Closing Date, the Indenture will have been duly
authorized by the Company, and when duly executed and delivered by the
Company and, assuming the due authorization, execution and delivery of the
Indenture by the Trustee, will be a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except (A) to the extent that a waiver of rights under any usury laws may
be unenforceable and as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to or affecting the enforcement
of creditors' rights and remedies generally and (B) as rights of
acceleration and the availability of equitable remedies may be limited
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by equitable principles of general applicability, whether or not
enforcement is sought at law or in equity.
(xii) At the Closing Date, the Registration Rights Agreement will
have been duly authorized by the Company and, when executed and delivered
by the Company, assuming the due authorization, execution and delivery of
the Registration Rights Agreement by the Initial Purchasers, will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except (A) as the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, moratorium or other similar laws now or hereafter
in effect relating to or affecting the enforcement of creditors' rights
and remedies generally, (B) as rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability, whether or not enforcement is sought at law or in equity
and (C) as rights to indemnification or contribution may be limited by
federal or state securities laws or public policy considerations.
(xiii) The Securities have been duly authorized by the Company, and,
at the Closing Date, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the Purchase Price (as defined
below) therefore as provided in this Agreement, will be the valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except (A) to the extent that a waiver of
rights under any usury laws may be unenforceable and as the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to or
affecting the enforcement of creditors' rights and remedies generally and
(B) as rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability, whether
or not enforcement is sought at law or in equity. At the Closing Date, the
Securities will be in the form contemplated by, and will be entitled to
the benefits of, the Indenture and the Registration Rights Agreement.
(xiv) The Securities, the Indenture and the Registration Rights
Agreement will conform in all material respects to the respective
statements relating thereto contained in the Memorandum.
(xv) Neither the Company nor any of its Significant Subsidiaries is
in violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan or credit
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agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject (collectively, "AGREEMENTS
AND INSTRUMENTS") except for such defaults that would not result in a
Material Adverse Effect.
(xvi) The execution, delivery and performance by the Company of its
obligations under this Agreement, the Indenture, the Registration Rights
Agreement and the Securities will not contravene any provision of (A) the
Restated Certificate of Incorporation, as amended, or Amended and Restated
Bylaws of the Company, (B) any agreement or other instrument binding upon
the Company or its business or assets that is material to the financial
condition of the Company and its subsidiaries, considered as one
enterprise, (C) applicable law and (D) any judgment, order, decree of any
governmental body, agency or court having jurisdiction over the Company or
its business or assets.
(xvii) Except as disclosed in the Memorandum, there is no action,
suit, proceeding, inquiry or investigation before or brought by any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the Company
or any of its subsidiaries which might reasonably be expected to result in
a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets of the Company or
any of its subsidiaries or the consummation of the transactions
contemplated by this Agreement or the performance by the Company of its
obligations hereunder. The aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or
of which any of their respective property or assets is the subject which
are not described in the Memorandum, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in
a Material Adverse Effect.
(xviii) The Company and its Significant Subsidiaries own or possess,
or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade
names (collectively, "INTELLECTUAL PROPERTY") which in each case are
material to the financial condition of the Company and its subsidiaries,
considered as one enterprise and, except as described in the Memorandum,
neither the Company nor any of its Significant Subsidiaries has received
any notice of any infringement of or conflict with asserted rights of
others
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with respect to any Intellectual Property, which infringement or conflict,
singly or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
(xix) No consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture or in connection with the offering, issuance and sale of the
Securities, except such as have been already obtained or will have been
obtained prior to the Closing Date.
(xx) The Company has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from (collectively,
"GOVERNMENTAL PERMITS"), and has made all declarations and filings with,
all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Memorandum, except to the extent
that the failure to obtain or file would not have a Material Adverse
Effect; and the Company has not received any notice of proceedings
relating to the revocation or modification of any such Governmental
Permits which, singly or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
(xxi) Except as described in the Memorandum and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (A)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "HAZARDOUS MATERIALS") or
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"ENVIRONMENTAL LAWS"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation,
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investigations or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxii) Neither the Company nor any of its subsidiaries is in
violation of any Federal or state law or regulation relating to
occupational safety and health or to the storage, handling and
transportation of hazardous or toxic materials; the Company and each of
its subsidiaries have received all permits, licenses or other approvals
required of them under applicable Federal and state occupational safety
and health laws and environmental laws and regulations to conduct their
respective businesses, and the Company and each such subsidiary is in
compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals that
would not, singly or in the aggregate, result in a Material Adverse
Effect, except as described in or contemplated by the Memorandum.
(xxiii) The Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Memorandum, will not be an "investment company," or an
entity "controlled" by an investment company, as such terms are defined in
the Investment Company Act of 1940, as amended.
(xxiv) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are reasonable and consistent with sound
business practice.
(xxv) Neither the Company nor any of its affiliates, as such term is
defined in Rule 501(b) of Regulation D under the Securities Act (each, an
"AFFILIATE"), has, directly or indirectly, solicited any offer to buy,
sold or offered to sell or otherwise negotiated in respect of, or will
solicit any offer to buy or offer to sell or otherwise negotiate in
respect of, any security (as defined in the Securities Act) that is or
would be integrated with the sale of the Securities in a manner that would
require the Securities to be registered under the Securities Act.
(xxvi) The Securities are eligible for resale pursuant to Rule 144A
under the Securities Act and will not be, at the Closing Date, of the same
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class as securities listed on a national securities exchange registered
under Section 6 of the Exchange Act, or quoted in a U.S. automated
interdealer quotation system.
(xxvii) None of the Company, any of its Affiliates or any person
acting on its or any of their behalf (other than the Initial Purchasers
and their Affiliates, as to whom the Company makes no representation) has
engaged or will engage, in connection with the offering of the Securities,
in any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D under the Securities Act or in any
manner involving a public offering within the meaning of Section 4(2) of
the Securities Act.
(xxviii) Subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 4 and the procedures
set forth in Section 7 hereof, it is not necessary in connection with the
offer, sale and delivery of the Securities to the Initial Purchasers and
to each Subsequent Purchaser in the manner contemplated by this Agreement
and the Memorandum to register the Securities under the Securities Act.
(xxix) The Company is subject to the reporting requirements of
Section 13 or Section 15(d) of the Exchange Act.
(xxx) With respect to those Securities sold in reliance on
Regulation S, (A) none of the Company, its Affiliates or any person acting
on its or their behalf (other than the Initial Purchasers and their
Affiliates, as to whom the Company makes no representation) has engaged or
will engage in any directed selling efforts within the meaning of
Regulation S and (B) each of the Company and its Affiliates and any person
acting on its or their behalf (other than the Initial Purchasers and their
Affiliates, as to whom the Company makes no representation) has complied
and will comply with the offering restrictions requirement of Regulation
S.
(xxxi) There are no persons with registration rights or other
similar rights to have any securities included in any registration
statement filed pursuant to a registration agreement or in any offering
made pursuant to such registration statement.
(b) Officer's Certificate. Any certificate signed by any officer
of the Company and delivered to the Initial Purchasers or counsel for the
Initial Purchasers in connection with the issuance of the Securities shall
be deemed a representation and warranty by the Company, as to matters
covered thereby, to the Initial Purchasers.
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2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Initial Purchasers, and each Initial Purchaser, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company, (i) at a purchase price of 99.453% of the principal amount
thereof, the respective principal amount of 2009 Notes set forth opposite its
name in Schedule I hereto and (ii) at a purchase price of 99.534% of the
principal amount thereof, the respective principal amount of 2014 Notes set
forth opposite its name in Schedule I hereto (together, the "PURCHASE PRICE"),
plus accrued interest, if any, to the Closing Date.
The Company hereby agrees that, without the prior written consent of
Morgan Stanley & Co. Incorporated on behalf of the Initial Purchasers, it will
not, during the period beginning on the date of this Agreement and continuing to
and including the Closing Date, offer, sell, contract to sell or otherwise
dispose of any debt of the Company or warrants to purchase debt of the Company
substantially similar to the Securities (other than the sale of the Securities
under this Agreement).
3. Terms of Offering. You have advised the Company that the Initial
Purchasers will make an offering of the Securities purchased by the Initial
Purchasers hereunder on the terms to be set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in your reasonable
judgment is advisable and that it is the intention of the Initial Purchasers not
to hold any Securities after the Closing Date.
4. Payment and Delivery. Payment for the Securities shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Securities for the respective accounts of the several
Initial Purchasers at 10:00 a.m., New York City time, on November 18, 2004, or
at such other time on the same or such other date, not later than November 26,
2004, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "CLOSING DATE."
Certificates for the Securities shall be in global form and registered in
the name of Cede & Co., as nominee of the Depository Trust Company. The
certificates evidencing the Securities shall be delivered to the Trustee on the
Closing Date for the respective accounts of the several Initial Purchasers, with
any transfer taxes payable in connection with the transfer of the Securities to
the Initial Purchasers duly paid, against payment of the Purchase Price therefor
plus accrued interest, if any, to the date of payment and delivery.
5. Conditions to the Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers to purchase and pay for the Securities on
the Closing Date is subject to the following conditions:
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(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded of any of
the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have been, since the date of this
Agreement or since the respective dates as of which information is
given in the Final Memorandum, any material adverse change in the
financial condition or in the earnings of the Company and its
subsidiaries, taken as a whole.
(b) The Initial Purchasers shall have received on the Closing Date
a certificate, dated the Closing Date and signed by the chief executive
officer or the chief financial officer of the Company, to the effect set
forth in Section 5(a)(i) and to the effect that (i) the representations
and warranties of the Company contained in this Agreement are true and
correct in all material respects as of the Closing Date and (ii) the
Company has complied in all material respects with all of the agreements
and satisfied in all material respects all of the conditions on its part
to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date
an opinion or opinions and a negative assurances letter of Latham &
Watkins LLP, outside counsel for the Company, dated the Closing Date,
covering the matters set forth in Exhibit A. Each such opinion or opinions
will include such assumptions, qualifications and exceptions as are
customary in transactions of this type. The opinion or opinions may be
limited to the federal laws of the United States, the internal laws of the
State of New York and the General Corporation Law of the State of
Delaware. Such counsel may also state that, insofar as such opinions
involve factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
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(d) The Initial Purchasers shall have received on the Closing Date
an opinion of the Company's general counsel or any assistant general
counsel, dated the Closing Date, covering the matters set forth in Exhibit
B. Such opinion will include such assumptions, qualifications and
exceptions as are customary in transactions of this type. The opinion will
be limited to the federal laws of the United States and the General
Corporation Law of the State of Delaware. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(e) The Initial Purchasers shall have received on the Closing Date
an opinion of Cleary, Gottlieb, Steen & Hamilton, counsel for the Initial
Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on the date hereof
a letter, dated the date hereof, in form and substance reasonably
satisfactory to the Initial Purchasers, from Ernst & Young LLP,
independent registered public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Final Memorandum and on the Closing Date, the Initial Purchasers
shall have received a letter from Ernst & Young LLP, in form and substance
reasonably satisfactory to the Initial Purchasers, to the effect that they
reaffirm the statements made in the letter dated the date hereof.
6. Covenants of the Company. In further consideration of the agreements
of the Initial Purchasers contained in this Agreement, the Company covenants
with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to
10:00 a.m. New York City time on the business day next succeeding the date
of this Agreement and during the period mentioned in Section 6(c), as many
copies of the Final Memorandum, and any supplements and amendments thereto
as you may reasonably request.
(b) Before amending or supplementing any Memorandum, to furnish to
you a copy of each such proposed amendment or supplement and not to use
any such proposed amendment or supplement to which you reasonably object.
(c) If, at any time prior to the completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or condition
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exist as a result of which it is necessary, in the reasonable opinion of
the Initial Purchasers or counsel for the Initial Purchasers, to amend or
supplement the Final Memorandum in order to make the statements therein,
in the light of the circumstances when the Final Memorandum is delivered
to a purchaser, not misleading, or if, in the reasonable opinion of
counsel for the Initial Purchasers, it is necessary to amend or supplement
the Final Memorandum to comply with applicable law, forthwith to prepare
and furnish, at its own expense, to the Initial Purchasers, either
amendments or supplements to the Final Memorandum so that the statements
in the Final Memorandum as so amended or supplemented will not, in the
light of the circumstances when the Final Memorandum is delivered to a
purchaser, be misleading or so that the Final Memorandum, as amended or
supplemented, will comply with applicable law.
(d) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request provided, however, that 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) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under
this Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
issuance and sale of the Securities and all other fees or expenses of the
Company in connection with the preparation of each Memorandum and all
amendments and supplements thereto, including all printing costs
associated therewith, and the delivering of copies thereof to the Initial
Purchasers, in the quantities herein above specified, (ii) all costs and
expenses related to the preparation, issuance and delivery of the
Securities to the Initial Purchasers, including any transfer or other
taxes payable thereon, (iii) all expenses in connection with the
qualification of the Securities for offer and sale under state securities
laws as provided in Section 6(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Initial Purchasers in
connection with such qualification and in connection with the preparation
of any Blue Sky or legal investment memorandum, (iv) any fees charged by
rating agencies for the rating of the Securities, (v) the costs and
charges of the Trustee, and (vi) all other cost and expenses incident to
the performance of the obligations of the Company hereunder for which
provision is not
14
otherwise made in this Section. It is understood, however, that except as
provided in clause (iii) of this Section 8, and the last paragraph of
Section 10, the Initial Purchasers will pay all of their costs and
expenses, including fees and disbursements of their counsel, transfer
taxes payable on resale of any of the Securities by them and any
advertising expenses connected with any offers they may make.
(f) Not to, and to cause its Affiliates not to, sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be integrated with
the sale of the Securities in a manner which would require the
registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the
Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities
Act) or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities"
within the meaning of Rule 144(a)(3) of the Securities Act, to make
available, upon request, to any seller of such Securities the information
specified in Rule 144A(d)(4) under the Securities Act, unless the Company
is then subject to Section 13 or 15(d) of the Exchange Act.
(i) Not to, and to cause its Affiliates or any person acting on
its or their behalf (other than the Initial Purchasers) not to, engage in
any directed selling efforts (as that term is defined in Regulation S)
with respect to the Securities, and the Company and its Affiliates and
each person acting on its or their behalf (other than the Initial
Purchasers) will comply with the offering restrictions requirement of
Regulation S.
(j) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been
reacquired by any of them.
7. Offering of Securities; Restrictions on Transfer. (a) Each Initial
Purchaser, severally and not jointly, represents and warrants that such Initial
Purchaser is a qualified institutional buyer as defined in Rule 144A under the
Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly,
agrees with the Company that (i) it will not solicit offers for, or offer or
sell, such Securities by any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act) or in any
manner
15
involving a public offering within the meaning of Section 4(2) of the Securities
Act and (ii) it will solicit offers for such Securities only from, and will
offer such Securities only to, persons that it reasonably believes to be (A) in
the case of offers inside the United States, QIBs and (B) in the case of offers
outside the United States, to persons other than U.S. persons ("FOREIGN
PURCHASERS," which term shall include dealers or other professional fiduciaries
in the United States acting on a discretionary basis for foreign beneficial
owners (other than an estate or trust)) in reliance upon Regulation S under the
Securities Act that, in each case, in purchasing such Securities are deemed to
have represented and agreed as provided in the Final Memorandum under the
caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants, and agrees with respect to offers and sales outside the United States
that:
(i) such Initial Purchaser understands that no action has been or
will be taken in any jurisdiction by the Company that would permit a
public offering of the Securities, or possession or distribution of either
Memorandum or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that purpose
is required;
(ii) such Initial Purchaser will comply with all applicable laws
and regulations in each jurisdiction in which it acquires, offers, sells
or delivers Securities or has in its possession or distributes either
Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities
Act and may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except in accordance with Rule
144A or Regulation S under the Securities Act or pursuant to another
exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will
offer and sell the Securities (A) as part of their distribution at any
time and (B) otherwise until 40 days after the later of the commencement
of the offering and the Closing Date, only in accordance with Rule 903 of
Regulation S or as otherwise permitted in Section 7(a); accordingly,
neither such Initial Purchaser, its Affiliates nor any persons acting on
its or their behalf have engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the
Securities, and any such Initial Purchaser, its Affiliates and any such
persons have complied and will comply with the offering restrictions
requirement of Regulation S;
16
(v) such Initial Purchaser has (A) not offered or sold and, prior
to the date six months after the Closing Date, will not offer or sell any
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995; (B) complied
and will comply with all applicable provisions of the Financial Services
and Markets Act 2000 ("FSMA") with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United
Kingdom, and (C) has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of Section
21 of FSMA) received by it in connection with the issue or sale of the
Securities in circumstances in which Section 21(1) of FSMA does not apply
to the Company;
(vi) such Initial Purchaser understands that the Securities have
not been and will not be registered under the Securities and Exchange Law
of Japan, and represents that it has not offered or sold, and agrees not
to offer or sell, directly or indirectly, any Securities in Japan or for
the account of any resident thereof except pursuant to any exemption from
the registration requirements of the Securities and Exchange Law of Japan
and otherwise in compliance with applicable provisions of Japanese law;
and
(vii) such Initial Purchaser agrees that, at or prior to
confirmation of sales of the Securities, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Securities from it during the restricted
period a confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the
offering and the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act. Terms
used above have the meaning given to them by Regulation S."
Terms used in this Section 7(b) have the meanings given to them by Regulation S.
17
8. Indemnity and Contribution. (a) The Company will indemnify and hold
harmless each Initial Purchaser against any losses, claims, damages or
liabilities, joint or several, to which such Initial Purchaser may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in either Memorandum or any other prospectus (including any
preliminary prospectus) relating to the Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse such
Initial Purchaser for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in either Memorandum or any other
prospectus (including any preliminary prospectus) relating to the Securities, or
in any such amendment or supplement thereto, in reliance upon and in conformity
with written information furnished to the Company by such Initial Purchaser
expressly for use in either Memorandum as amended or supplemented; provided,
however, that the foregoing indemnity with respect to any Preliminary Memorandum
or preliminary prospectus, including any amendment or supplement thereto, shall
not inure to the benefit of any Initial Purchaser from whom the person asserting
any such losses, claims, damages or liabilities purchased the Securities, or any
person controlling such Initial Purchaser, if a copy of the Final Memorandum (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 Initial
Purchaser 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 Memorandum (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability.
(b) Each Initial Purchaser will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in either Memorandum or any
other prospectus (including any preliminary prospectus) relating to the
Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent,
18
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in either Memorandum or any other prospectus
(including any preliminary prospectus) relating to the Securities, or any
such amendment or supplement thereto, in reliance upon and in conformity
with written information furnished to the Company by such Initial
Purchaser expressly for use in either Memorandum as amended or
supplemented; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) As promptly as reasonably practical after receipt by an
indemnified party under paragraph (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not
relieve it of its obligations (i) under paragraph (a) or (b), as
applicable, of this Section 8 unless and only to the extent that the
indemnifying party is materially prejudiced by the failure to notify, or
(ii) from any liability which it may have to any indemnified party
otherwise than under such applicable subsection. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, and 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 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 (1) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (2) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would, in the
written opinion of legal counsel to the indemnified party, be
inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be
19
reimbursed as they are incurred. Such firm shall be designated in writing
by Morgan Stanley & Co. Incorporated or, if Morgan Stanley & Co.
Incorporated is not an indemnified party and is not reasonably likely to
become an indemnified party, by the Initial Purchasers that are
indemnified parties, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of parties
indemnified pursuant to paragraph (b) above. No indemnifying party shall,
without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (I) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (II) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and each Initial Purchaser on the other from the offering of
the Securities to which such loss, claim, damage or liability (or action
in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then
each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on
the one hand and each Initial Purchaser on the other in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and each Initial Purchaser on the other shall be
deemed to be in the same proportion as the total net proceeds from the
sale of Securities (before deducting expenses) received by the Company
bear to the total commissions and discounts received by such Initial
Purchaser in respect thereof. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact required to
20
be stated therein or necessary in order to make the statements therein not
misleading relates to information supplied by the Company on the one hand
or by any Initial Purchaser on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and each Initial Purchaser agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if all Initial
Purchasers were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), an Initial Purchaser shall not be
required to contribute any amount in excess of the amount by which the
total price at which the Securities referred to in paragraph (d) above
that were offered and sold to the public through such Initial Purchaser
exceeds the amount of any damages which such 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. The obligations of each of the
Initial Purchasers under this subsection (d) to contribute are several in
proportion to the respective purchases made by or through each such
Initial Purchaser to which such loss, claim, damage or liability (or
action in respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any,
who controls any Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act; and the obligations of
each Initial Purchaser under this Section 8 shall be in addition to any
liability which such Initial Purchaser may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director
of the Company and to each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act.
9. Termination. This Agreement shall be subject to termination in the
Initial Purchasers' absolute discretion, by written notice to the Company, if
(a)
21
after the execution and delivery of this Agreement and prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange or the National Association of Securities Dealers, Inc., (ii) trading
of any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Initial Purchasers, is material and adverse and (b)
in the case of any of the events specified in clauses (a)(i) through (iv), such
event, singly or together with any other such event, makes it, in the judgment
of the Initial Purchasers, impracticable to market the Securities on the terms
and in the manner contemplated in the Final Memorandum.
10. Effectiveness; Defaulting Initial Purchasers. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Initial Purchasers shall
fail or refuse to purchase Securities that it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Initial Purchaser or Initial Purchasers agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal amount
of Securities to be purchased on such date, the other Initial Purchasers shall
be obligated severally in the proportions that the principal amount of
Securities set forth opposite their respective names in Schedule I bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Initial Purchasers, or in such other proportions as you may
specify, to purchase the Securities which such defaulting Initial Purchaser or
Initial Purchasers agreed but failed or refused to purchase on such date;
provided that in no event shall the principal amount of Securities that any
Initial Purchaser has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such
principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser
or of the Company. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Final
22
Memorandum or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Initial Purchaser
from liability in respect of any default of such Initial Purchaser under this
Agreement.
If this Agreement shall be terminated by the Initial Purchasers, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Initial Purchasers or such Initial
Purchasers as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Initial Purchasers in connection
with this Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties 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.
12. Applicable 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.
13. 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.
14. Section References. Unless otherwise indicated, references in this
Agreement to sections are to the sections of this Agreement.
15. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the construction hereof.
16. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Initial Purchasers shall
be directed to Morgan Stanley & Co. Incorporated at 1585 Broadway, New York, New
York 10036 (facsimile no. 212-507-2409), Attention: Fixed Income Syndicate, with
a copy to Cleary, Gottlieb, Steen & Hamilton at One Liberty Plaza, New York, New
York 10006 (facsimile no. 212-225-3999), Attention: Raymond B. Check; notices to
the Company shall be directed to it at One Amgen Center Drive, Thousand Oaks,
California 91320-1799 (facsimile no. 805-499-
23
8011), Attention: Corporate Secretary, with a copy to Latham & Watkins LLP, 633
West Fifth Street, Suite 4000, Los Angeles, California 90071 (facsimile no.
213-891-8763), Attention: Brian Cartwright.
[Remainder of page intentionally left blank]
24
Very truly yours,
AMGEN INC.
By: /s/ Richard D. Nanula
-----------------------------------
Name: Richard D. Nanula
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof
MORGAN STANLEY & Co. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
Acting severally on behalf of themselves and
the several Initial Purchasers named in
Schedule I hereto.
By: Morgan Stanley & Co. Incorporated
By: /s/ Harold J. Hendershot III
-------------------------------------
Name: Harold J. Hendershot III
Title: Executive Director
SCHEDULE I
PRINCIPAL AMOUNT
OF SECURITIES
INITIAL PURCHASERS TO BE PURCHASED
4.00% SENIOR NOTES DUE 2009
Merrill Lynch, Pierce, Fenner & Smith
Incorporated ................................. $ 377,500,000
Morgan Stanley & Co. Incorporated............... $ 377,500,000
Barclays Capital Inc............................ $ 35,000,000
Bear, Stearns & Co. Inc......................... $ 35,000,000
Citigroup Global Markets Inc.................... $ 35,000,000
Credit Suisse First Boston LLC.................. $ 35,000,000
Goldman, Sachs & Co............................. $ 35,000,000
J.P. Morgan Securities Inc...................... $ 35,000,000
Mitsubishi Securities International plc......... $ 35,000,000
Total:........................................ $ 1,000,000,000
4.85% SENIOR NOTES DUE 2014
Merrill Lynch, Pierce, Fenner & Smith
Incorporated ................................. $ 377,500,000
Morgan Stanley & Co. Incorporated............... $ 377,500,000
Barclays Capital Inc............................ $ 35,000,000
Bear, Stearns & Co. Inc......................... $ 35,000,000
Citigroup Global Markets Inc.................... $ 35,000,000
Credit Suisse First Boston LLC.................. $ 35,000,000
Goldman, Sachs & Co............................. $ 35,000,000
J.P. Morgan Securities Inc...................... $ 35,000,000
Mitsubishi Securities International plc......... $ 35,000,000
Total:........................................ $ 1,000,000,000
S-I-1