EXHIBIT 4.1
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT dated
as of August 5, 1994, among
BRISTOL-MYERS SQUIBB COMPANY, a Delaware
corporation ("BMS"), and the individuals
and entities named in Schedule I hereto
(herein referred to collectively as the
"Shareholders" and individually as a
"Shareholder").
This Agreement is made pursuant to Section 5.09 of the
Agreement and Plan of Merger dated as of June 14, 1994 (the "Merger
Agreement"), among BMS, BMS Acquisition Sub Corp. I, BMS Acquisition
Sub Corp. II, Matrix Essentials, Inc., Lauren Stacy Marketing, Inc.,
the Trust Shareholders named therein, the Lauren Stacy Shareholders
named therein, the Limited Partners named therein, Sydell L. Miller,
the Estate of Arnold M. Miller, Stacie Miller Halpern and Lauren
Miller Spilman. In order to induce the Shareholders to consummate the
transactions contemplated by the Merger Agreement, and in further
consideration therefor, BMS has agreed to execute and deliver this
Agreement and provide the registration rights set forth in this
Agreement.
Accordingly, it is hereby agreed as follows:
1. Securities Subject to this Agreement. (a) Definitions.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Merger Agreement. For purposes
of this Agreement the following terms shall have the following
meanings:
"Effective Period" shall mean a period commencing on the
date of this Agreement and ending on the earlier of (i) the first date
as of which all Registrable Securities cease to be Registrable
Securities and (ii) the date two years following the Closing Date.
"Holder" shall mean a holder of Registrable Securities.
"Registrable Securities" means, collectively, (i) the shares
of common stock, par value $.10 per share, of BMS ("Common Stock")
issued in connection with the Mergers and the Acquisitions (the
"Shares") and (ii) any securities issued or distributed in respect of
any Shares by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, reorganization,
merger, consolidation or otherwise.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance with this Agreement,
including, without limitation, (i) all SEC and securities exchange
registration and filing fees, (ii) all fees and expenses of complying
with securities or blue sky laws (including fees and disbursements of
counsel for any underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) all fees and expenses incurred
in connection with the listing of the Registrable Securities on any
securities exchange pursuant to Section 5(h), (v) the fees and
disbursements of counsel for BMS and of its independent public
accountants, including the expenses of any incident to such
performance and compliance, (vi) the reasonable fees and disbursements
of one counsel, other than BMS's counsel, selected by the Holders of a
majority of the Registrable Securities being registered to represent
all Holders of the Registrable Securities being registered in
connection with each such registration (it being understood that any
Holder may, at its own expense, retain separate counsel to represent
it in connection with such registration), and (vii) any fees and
disbursements of underwriters customarily paid by the issuers or
sellers of securities, and the reasonable fees and expenses of any
special experts retained in connection with the requested
registration, but excluding underwriting discounts and commissions and
transfer taxes, if any.
"Related Securities" means any securities of BMS similar or
identical to any of the Registrable Securities, including, without
limitation, Common Stock and all options, warrants and other
securities convertible into, or exchangeable or exercisable for,
Common Stock.
(b) Registrable Securities. For the purposes of this
Agreement, Registrable Securities will cease to be Registrable
Securities when (i) a registration statement covering such Registrable
Securities has been declared effective under the Securities Act (as
defined below) and they have been disposed of pursuant to such
effective registration statement, (ii) they are distributed to the
public pursuant to Rule 144 (or any similar provision then in force)
under the Securities Act of 1933 (the "Securities Act"), (iii) they
shall have been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer shall have been
delivered by BMS and subsequent disposition of them shall not require
registration or qualification of them under the Securities
Act or any state securities or blue sky law then in force, (iv) two
years following the date of this Agreement have elapsed or (v) they
shall have ceased to be outstanding.
2. Demand Registration Rights. (a) Right to Demand. Any
Holder or Holders of a number of Registrable Securities equal to at
least 10% of the Registrable Securities issued in connection with the
Mergers and the Acquisitions (with a proportional adjustment for any
stock split or stock dividend or other issuance of securities with
respect to such Registrable Securities) may make a written request to
BMS for registration with the SEC under and in accordance with the
provisions of the Securities Act of all or part of their Registrable
Securities and BMS shall use its best efforts to effect such
registration (a "Demand Registration"); provided, however, that (i)
the aggregate number of Registrable Securities requested to be so
registered shall have a market value (calculated using the market
price of such Registrable Securities on the date of receipt by BMS of
such written request) of at least $40,000,000 and (ii) no Demand
Registration may be requested after the end of the Effective Period
and provided, further, that BMS shall not be obligated to file a
registration statement relating to any registration request under this
Section 2, (x) within a period of six months after the effective date
of any other registration statement relating to (A) any registration
request under this Section 2 or (B) any registration of the type
described under Section 3 pursuant to which any Holder disposed of
Registrable Securities, or (y) if with respect thereto, the managing
underwriter, the SEC, the Securities Act or the form on which the
registration statement is to be filed, would require the conduct of an
audit other than the regular audit conducted by BMS at the end of its
fiscal year, in which case the filing may be delayed until the
completion of such regular audit (unless the Holders of the
Registrable Securities to be registered agree to pay the expenses of
BMS in connection with such an audit other than the regular audit).
Within 10 days after receipt of such request, BMS will serve written
notice (the "Notice") of such registration request to all Holders of
Registrable Securities and BMS will include in such registration all
Registrable Securities of such Holders with respect to which BMS has
received written requests for inclusion therein within 15 days after
the receipt by the applicable Holder of the Notice. Any request for
registration made by a Holder pursuant to this paragraph 2(a) will
specify the aggregate
number of Registrable Securities to be registered and will also
specify the intended methods of disposition thereof.
(b) Blackout Period. BMS shall be entitled to postpone the
filing of any registration statement otherwise required to be prepared
and filed by BMS pursuant to this Section 2, for a reasonable period
of time, but not in excess of 90 days (a "Blackout Period"), if any
executive officer of BMS determines that in such executive officer's
reasonable judgment and good faith that the registration and
distribution of the Registrable Securities would materially interfere
with any pending financing, acquisition or corporate reorganization or
other corporate development involving BMS or any of its Subsidiaries
or would require premature disclosure thereof and promptly gives the
Holders of Registrable Securities to be registered written notice of
such determination, containing a general statement of the reasons for
such postponement and an approximation of the anticipated delay;
provided, however, that the aggregate number of days included in all
Blackout Periods during any consecutive 12 months during the Effective
Period shall not exceed 180 days and provided, further, however, that
a period of at least 30 days shall elapse between the termination of
any Blackout Period and the commencement of the immediately succeeding
Blackout Period. If BMS shall so postpone the filing of a registration
statement, the Holders of Registrable Securities to be registered
shall have the right to withdraw the request for registration by
giving written notice from the Holders of a majority of the
Registrable Securities that were to be registered to BMS within 20
days after receipt of the notice of postponement (and, in the event of
such withdrawal, such request shall not be counted for purposes of
determining the number of requests for registration to which the
Holders of Registrable Securities are entitled pursuant to paragraph
(c) of this Section 2).
(c) Number of Demand Registrations. The Holders of
Registrable Securities shall be entitled to a maximum of three Demand
Registrations during the Effective Period. BMS shall not be deemed to
have effected a Demand Registration unless and until such Demand
Registration is declared effective under the Securities Act; provided,
however, that if after any Demand Registration has been declared
effective, the offering of any Registrable Securities pursuant to such
Demand Registration is interfered with by any stop order, injunction
or other order or requirement of the SEC or its staff or any other
governmental agency or
court, such Demand Registration will be deemed not to have been
effected for the purposes of this Agreement unless (i) such stop
order, injunction or other order or requirement relates to the actions
or omissions of, information included in the prospectus related to, or
is otherwise attributable to the Holders or the Registrable Securities
or (ii) if such stop order, injunction or other or requirement is
lifted or otherwise ceases to be applicable to such Demand
Registration.
(d) Priority on Demand Registrations. If the managing
underwriter or underwriters of a Demand Registration advise BMS in
writing that in its or their opinion the number of securities proposed
to be sold in such Demand Registration exceeds the number which can be
sold in such offering, BMS will include in such registration only the
number of securities that, in the opinion of such underwriter or
underwriters can be sold, selected pro rata among the Holders that
have requested to be included in such Demand Registration.
(e) Selection of Underwriters. If any offering pursuant to a
Demand Registration is an underwritten offering, BMS will select a
managing underwriter or underwriters to administer the offering, which
managing underwriter or underwriters shall be reasonably satisfactory
to the Holders of a majority in number of the Registrable Securities
to be included in such Demand Registration; provided, however, that
the Holders of a majority in number of the Registrable Securities to
be included in such Demand Registration shall be entitled to select
one co-managing underwriter, which co-managing underwriter shall be
reasonably satisfactory to BMS. The managing underwriter or
underwriters selected by BMS shall be deemed to be reasonably
satisfactory to the Holders of a majority in number of the Registrable
Securities to be registered unless the Holders of a majority in number
of such Registrable Securities send a written notice of objection to
BMS within 10 days of receipt of notice from BMS of the appointment of
a managing underwriter or underwriters.
3. Piggy-Back Registration. If at any time after the date of
issuance of any Registrable Securities and prior to the end of the
Effective Period, BMS proposes to file a registration statement under
the Securities Act with respect to an offering by BMS for its own
account or for the account of others of any class of equity security
(or any options, warrants or other securities convertible into, or
exchangeable or exercisable for, equity securities) to be offered for
cash (other than in connection with the registration of securities
issuable pursuant to an employee stock option, stock purchase or
similar plan or pursuant to a merger, exchange offer or a transaction
of the type specified in Rule 145(a) under the Securities Act), then
BMS shall in each case give written notice of such proposed filing to
the Holders at least 20 days before the filing date, and such notice
shall offer such Holders the opportunity to register such number of
Registrable Securities as each such Holder may request (a "Piggy-Back
Registration"). If such offer is accepted by written notice to BMS
from the Holders of at least 10% of the Registrable Securities issued
in connection with the Mergers and the Acquisitions (with a
proportional adjustment for any stock split or stock dividend or other
issuance of securities with respect to such Registrable Securities)
within 15 days of the giving of the written notice provided for in the
preceding sentence, BMS shall use its best efforts to permit, or (in
the case of a proposed underwritten offering) to cause the managing
underwriter or underwriters thereof to permit, the Holders of
Registrable Securities requested to be included, in the registration
for such offering to include such Registrable Securities in such
offering on the same terms and conditions as the corresponding
securities of BMS included therein, provided that (i) if, at any time
after giving written notice of its intention to register any
securities and prior to the effective date of the registration
statement filed in connection with such registration, BMS shall
determine for any reason not to proceed with the proposed
registration, BMS may, at its election, give written notice of such
determination to each Holder of Registrable Securities requested to be
included in such registration and thereupon shall be relieved of its
obligation to register any Registrable Securities in connection with
such registration (but not from its obligation to pay the Registration
Expenses in connection therewith), and (ii) if such registration
involves an underwritten offering by BMS (underwritten, at least in
part, by Persons who are not Affiliates or Associates of BMS or any
Holder), all Holders requesting to have Registrable Securities
included in BMS's registration must sell their Registrable Securities
to such underwriters who shall have been selected by BMS on the same
terms and conditions as apply to BMS, with such differences, including
any with respect to indemnification and contribution, as may be
customary or appropriate in combined primary and secondary offerings.
If a proposed registration pursuant to this
Section 3 involves such an underwritten public offering, any Holder
making a request under this Section 3 in connection with such
registration may elect in writing, prior to the effective date of the
registration statement filed in connection with such registration, to
withdraw such request and not to have such securities registered in
connection with such registration. Notwithstanding the foregoing, if
the managing underwriter or underwriters of a proposed underwritten
offering advise BMS in writing that in their opinion the total amount
or kind of securities that the Holders have requested to be included
in such offering would adversely affect the success of such offering,
then the amount of securities to be offered for the accounts of
Holders of Registrable Securities shall be reduced pro rata to the
extent necessary to reduce the total amount of securities to be
included in such offering to the amount recommended by such managing
underwriter or underwriters.
4. Holdback Agreement. If (i) during the Effective Period
BMS shall file a registration statement (other than in connection with
the registration of securities issuable pursuant to an employee stock
option, stock purchase or similar plan or pursuant to a merger,
exchange offer or a transaction of the type specified in Rule 145(a)
under the Securities Act) with respect to its Common Stock or similar
securities or securities convertible into, or exchangeable or
exercisable for, such securities and (ii) with reasonable prior
notice, BMS (in the case of a non-underwritten public offering by BMS
pursuant to such registration statement) advises the Shareholders in
writing that a public sale or distribution of such Registration
Securities would materially adversely affect such offering or the
managing underwriter or underwriters (in the case of an underwritten
public offering by BMS pursuant to such registration statement)
advises BMS in writing (in which case BMS shall notify the
Shareholders) that a public sale or distribution of such Registrable
Securities would materially adversely impact such offering, then each
Shareholder that is then a Holder of Registrable Securities shall, to
the extent not inconsistent with Applicable Law, refrain from
effecting any public sale or distribution of Registrable Securities
(except in accordance with Section 2 hereof) during the seven days
prior to, and during the 60-day period beginning on, the effective
date of such registration statement. In the event that the Holders are
required so to refrain from effecting any public sale or distribution
during any period during which a registration statement relating to a
Demand Registration is required to
be kept effective pursuant to Section 5(b) hereof, the period
mentioned in Section 5(b) shall be extended by the number of days that
the Holders are so required to refrain from public sale or
distribution.
5. Registration Procedures. If and whenever BMS is required
to use its best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this
Agreement, BMS will, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement
with respect to such Registrable Securities on any form for which
BMS then qualifies or which counsel for BMS shall deem
appropriate, and which form shall be available for the sale of
the Registrable Securities in accordance with the intended
methods of distribution thereof, and use its best efforts to
cause such registration statement to become and remain effective;
provided, however, that BMS may discontinue any registration of
its securities which is being effected pursuant to Section 3 at
any time prior to the effective date of the registration
statement relating thereto;
(b) prepare and file with the SEC amendments and supplements
to such registration statement and the prospectus used in
connection therewith as may be necessary to maintain the
effectiveness of such registration and to comply with the
provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement until
the earlier of such time as all of such securities have been
disposed of in accordance with the intended methods of
disposition by the Holder or Holders thereof set forth in such
registration statement or the expiration of 90 days after such
registration statement becomes effective; provided, that before
filing a registration statement or prospectus, or any amendments
or supplements thereto, BMS will furnish to the Holders and their
counsel, copies of all documents proposed to be filed;
(c) furnish to each Holder of such Registrable Securities
such number of copies of such registration statement and of each
amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus and prospectus
supplement, as
applicable), in conformity with the requirements of the
Securities Act, and such other documents as such Holder may
reasonably request in order to facilitate the disposition of the
Registrable Securities by such Holder;
(d) use its best efforts to register or qualify such
Registrable Securities covered by such registration statement
under such other securities or blue sky laws of such
jurisdictions as each Holder shall reasonably request, and do any
and all other acts and things which may be reasonably necessary
or advisable to enable such Holder to consummate the disposition
in such jurisdictions of the Registrable Securities owned by such
Holder, except that BMS shall not for any such purpose be
required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements
of this Section 5(d), it would not be obligated to be so
qualified, to subject itself to taxation in any such
jurisdiction, or to consent to general service of process in any
such jurisdiction;
(e) use its best efforts to cause such Registrable
Securities covered by such registration statement to be
registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the Holder or
Holders thereof to consummate the disposition of such Registrable
Securities;
(f) notify each Holder of any such Registrable Securities
covered by such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act within the appropriate period mentioned in Section
5(b), of BMS's becoming aware that the prospectus included in
such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances
then existing, and at the request of any such Holder, prepare and
furnish to such Holder a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement
of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light
of the circumstances then existing;
(g) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available
to its security holders, as soon as reasonably practicable (but
not more than eighteen months) after the effective date of the
registration statement, an earnings statement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the
rules and regulations promulgated thereunder;
(h) use its best efforts to cause all such Registrable
Securities to be listed on any securities exchange on which the
Common Stock is then listed, if such Registrable Securities are
not already so listed and if such listing is then permitted under
the rules of such exchange, and to provide a transfer agent and
registrar for such Registrable Securities covered by such
registration statement no later than the effective date of such
registration statement;
(i) comply with the requirements of Section 153 of the
Securities Act regarding delivery of prospectuses;
(j) use its best efforts to obtain a "cold comfort" letter
or letters from BMS's independent public accountants in customary
form;
(k) cooperate with the Holders of Registrable Securities
covered by such registration statement and the managing
underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any
restrictive legends) representing the securities to be sold under
such registration statement, and enable such securities to be in
such denominations and registered in such names as the managing
underwriter or underwriters, if any, or such Holders may request;
and
(l) make available for inspection by any Holder of
Registrable Securities included in such registration statement,
any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other
agent retained by any such Holder or underwriter (collectively,
the
"Inspectors"), all financial and other records and other
information, pertinent corporate documents and properties of any
of BMS and its subsidiaries and affiliates (collectively, the
"Records"), as shall be reasonably necessary to enable them to
exercise their due diligence responsibility; provided, however,
that the Records that BMS determines, in good faith, to be
confidential and which it notifies the Inspectors in writing are
confidential shall not be disclosed to any Inspector unless such
Inspector signs a confidentiality agreement reasonably
satisfactory to BMS or either (i) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in
such registration statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction; provided further, however, that any
decision regarding the disclosure of information pursuant to
subclause (i) shall be made only after consultation with counsel
for the applicable Inspectors. Each Holder of Registrable
Securities agrees that it will, promptly after learning that
disclosure of such Records is sought in a court having
jurisdiction, give notice to BMS and allow BMS, at BMS's expense,
to undertake appropriate action to prevent disclosure of such
Records.
BMS may require each Holder of Registrable Securities as to
which any registration is being effected to furnish BMS with such
information regarding such Holder and pertinent to the disclosure
requirements relating to the registration and the distribution of such
securities as BMS may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon
receipt of any notice from BMS of the happening of any event of the
kind described in Section 5(f), such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus
contemplated by Section 5(f), and, if so directed by BMS, such Holder
will deliver to BMS (at BMS's expense) all copies, 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. In the event BMS shall give any such notice,
the period mentioned in Section 5(b) shall be extended by
the number of days during the period from the date of the giving of
such notice pursuant to Section 5(f) and through the date when each
seller of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or
amended prospectus contemplated by Section 5(f).
6. Registration Expenses. BMS will pay all Registration
Expenses in connection with the first three registrations of
Registrable Securities pursuant to Section 2 or 3 upon the written
request of any of the Holders, and 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 a registration statement effected pursuant to
such Sections. The fees and expenses of counsel to the Holders that
are paid by BMS pursuant to this Agreement shall not exceed $50,000
per registration. All expenses for any subsequent registrations of
Registrable Securities pursuant to either Section 2 or 3 shall be paid
pro rata by all Persons (including the Holders and BMS) participating
in such registration on the basis of the relative number of shares of
Common Stock of each such Person included in such registration.
7. Indemnification; Contribution. (a) Indemnification by
BMS. BMS agrees to indemnify each Holder of Registrable Securities,
its officers and directors and each Person who controls such Holder
(within the meaning of the Securities Act), and any agent or
investment adviser thereof against all losses, claims, damages,
liabilities and expenses (including reasonable attorneys' fees and
expenses of investigation) incurred by such party pursuant to any
actual or threatened action, suit, proceeding or investigation arising
out of or based upon (i) any untrue or alleged untrue statement of
material fact contained in any registration statement, any prospectus
or preliminary prospectus, or any amendment or supplement to any of
the foregoing or (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of a prospectus or a
preliminary prospectus, in light of the circumstances then existing)
not misleading, except in each case insofar as the same arise out of
or are based upon, any such untrue statement or omission made in
reliance on and in conformity with information with respect to such
indemnified party furnished in writing to BMS by such indemnified
party or its counsel expressly for use therein. In connection
with an underwritten offering, BMS will indemnify the underwriters
thereof, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of
the Holders of Registrable Securities. Notwithstanding the foregoing
provisions of this paragraph 7(a), BMS will not be liable to any
Holder of Registrable Securities, any Person who participates as an
underwriter in the offering or sale of Registrable Securities or any
other Person, if any, who controls such Holder or underwriter (within
the meaning of the Securities Act), under the indemnity agreement in
this paragraph 7(a) for any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense that arises out of
such Holder's or other Person's failure to send or give a copy of the
final prospectus to the Person asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior
to the written confirmation of the sale of the Registrable Securities
to such Person if such statement or omission was corrected in such
final prospectus and BMS has previously furnished copies thereof in
accordance with this Agreement.
(b) Indemnification by Holders of Registrable Securities. In
connection with any registration statement in which a Holder of
Registrable Securities is participating, each such Holder will furnish
to BMS in writing such information, including with respect to the
name, address and the amount of Registrable Securities held by such
Holder, as BMS reasonably requests for use in such registration
statement or the related prospectus and agrees to indemnify and hold
harmless (in the same manner and to the same extent as set forth in
Section 7(a)) BMS, all other prospective Holders or any underwriter,
as the case may be, and any of their respective affiliates, directors,
officers and controlling Persons, (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact
required to be stated in such registration statement or prospectus or
any amendment or supplement to either of them or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances then existing) not misleading, but only to the extent
that any such untrue statement or omission is made in reliance on and
in conformity with information with respect to such Holder
furnished in writing to BMS by such Holder or its counsel specifically
for inclusion therein.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder agrees to give prompt written
notice to the indemnifying party after the receipt by such indemnified
party of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for
which such indemnified party may claim indemnification or contribution
pursuant to this Agreement. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under these
indemnification provisions for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation, unless in the reasonable judgment
of any indemnified party a conflict of interest is likely to exist
between such indemnified party and any other of such indemnified
parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the reasonable fees and expenses of
such additional counsel or counsels. The indemnifying party will not
be subject to any liability for any settlement made without its
consent (which will not be unreasonably withheld).
(d) Contribution. If the indemnification from the
indemnifying party provided for in this paragraph 7 is unavailable to
an indemnified party hereunder in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities and
expenses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified party in connection
with the actions which resulted in such losses,
claims, damages, liabilities and expenses, as well as any other
relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by
reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has been made
by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The
amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in paragraph 7(c), any
legal and other fees and expenses reasonably incurred by such
indemnified party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this paragraph 7(d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. Notwithstanding the
provisions of this paragraph 7(d), no underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Registrable Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages which such underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission, and no Holder of Registrable Securities shall be
required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities of such Holder were
offered to the public (net of all underwriting discounts and
commissions) exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue statement or
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.
If indemnification is available under this paragraph 7, the
indemnifying parties shall indemnify each indemnified party to the
full extent provided in paragraph 7(a) or (b), as the case may be,
without regard to
the relative fault of said indemnifying parties or indemnified party
or any other equitable consideration provided for in this paragraph
7(d).
(e) The provisions of this paragraph 7 shall be applicable
in respect of each registration pursuant to this Agreement, shall be
in addition to any liability which any party may have to any other
party and shall survive any termination of this Agreement.
8. Participation in Underwritten Registrations. No Holder of
Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such
Holder's securities on the basis provided in any underwriting
arrangements approved by BMS in its reasonable discretion and (b)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Rule 144. For a period of three years following the
Closing Date, BMS covenants that it will file the reports required to
be filed by it under the Securities Act and the Securities Exchange
Act of 1934, as amended, and the rules and regulations adopted by the
Commission thereunder (or, if BMS is not required to file such
reports, it will, upon the request of any Holder of Registrable
Securities, make publicly available other information so long as
necessary to permit sales under Rule 144 under the Securities Act),
and it will take such further action as any Holder of Registrable
Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of
the exemptions provided by (a) Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of
any Holder of Registrable Securities, BMS will deliver to such Holder
a written statement as to whether it has complied with such
requirements.
10. Miscellaneous. (a) Remedies. Each Holder of Registrable
Securities in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement.
(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless BMS has obtained the
written consent of Holders of at least a majority in number of the
Registrable Securities then outstanding.
(c) Notices. All Notices and other communications provided
for or permitted hereunder shall be in writing and shall be deemed to
have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested),
postage prepaid, or courier guaranteeing next day delivery to the
parties at the following addresses (or at such other address for any
party as shall be specified by like notice, provided that notices of a
change of address shall be effective only upon receipt thereof).
Notices delivered personally shall be effective upon receipt, notices
sent by mail shall be effective three days after mailing, notices sent
by telex shall be effective when answered back, notices sent by
telecopier shall be effective when receipt is acknowledged, and
notices sent by courier guaranteeing next day delivery shall be
effective on the next business day after timely delivery to the
courier:
(i) if to a Holder of Registrable Securities at the address
of such Holder provided in Schedule I hereto or at such other
address as the applicable Holder may designate to BMS in writing;
and
(ii) if to BMS at:
Bristol-Myers Squibb Company
345 Park Avenue
New York, New York 10154
Attention: George P. Kooluris
Senior Vice-President, Corporate
Development
with a copy to:
Bristol-Myers Squibb Company
345 Park Avenue
New York, New York 10154
Attention: General Counsel
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted
assigns of each of the parties; provided, however that this Agreement
and the provisions of this Agreement that are for the benefit of the
Shareholders or any Holder shall not be assignable by any Shareholder
to any Person other than another Shareholder.
(e) 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed wholly within that
State.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of
any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby,
it being intended that all remaining provisions contained herein shall
not be in any way impaired thereby, it being intended that all of the
rights and privileges of the Shareholders shall be enforceable to the
fullest extent permitted by law.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression and a complete and exclusive statement
of the agreement and understanding of the parties hereto in respect of
the subject matter hereof. There are no restrictions, promises,
warranties or
undertakings with respect to the subject matter hereof, other than
those set forth or referred to herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
BRISTOL-MYERS SQUIBB COMPANY,
by
/s/ George P. Kooluris
-----------------------------
Name: George P. Kooluris
Title: Senior Vice President,
Corporate Development
/s/ Sydell L. Miller
------------------------------
Sydell L. Miller
/s/ Sydell L. Miller
------------------------------
Sydell L. Miller, as
Executrix for and on
behalf of the Estate of
Arnold M. Miller
/s/ Lauren Miller Spilman
------------------------------
Lauren Miller Spilman
/s/ Stacie Miller Halpern
------------------------------
Stacie Miller Halpern
/s/ Robert G. Markey
-----------------------------
Robert G. Markey, as Trustee for and on behalf of each of the
following Trusts:
Sydell L. Miller Dynasty Trust for the benefit of Lauren Miller
Spilman u/a dated 8/26/93
Sydell L. Miller Dynasty Trust
for the benefit of Stacie Miller Halpern u/a dated 8/26/93
Arnold M. Miller and Sydell L. Miller Trust for the
benefit of Lauren Miller Spilman u/a dated 12/30/91
Arnold M. Miller and Sydell L. Miller Trust for the benefit of
Stacie Miller Halpern u/a dated 12/30/91
Sydell Miller Income Trust for the benefit of Sydell Miller u/a dated
7/31/90
Arnold M. Miller Irrevocable Trust for the benefit
of Lauren Miller Spilman u/a dated 12/28/83 Arnold M.
Miller Irrevocable Trust for the benefit of Stacie Miller
Halpern u/a dated 12/28/83
Arnold M. Miller Included Marital Trust for the benefit
of Sydell L. Miller u/a dated 7/6/78
Arnold M. Miller GST Exempt Trust for the benefit of
Lauren Miller Spilman u/a dated 7/6/78
Arnold M. Miller GST Exempt Trust for the benefit of
Stacie Miller Halpern u/a dated 7/6/78
/s/ Dennis Lubin
--------------------------
Dennis Lubin, as Trustee for and on behalf of each of
the following Trusts:
Sydell L. Miller Dynasty Trust for the benefit of
Lauren Miller Spilman u/a dated 8/26/93
Sydell L. Miller Dynasty Trust for the benefit of Stacie
Miller Halpern u/a dated 8/26/93
Arnold M. Miller Included Marital Trust for the benefit
of Sydell L. Miller u/a dated 7/6/78
Arnold M. Miller GST Exempt Trust for the benefit of
Lauren Miller Spilman u/a dated 7/6/78
Arnold M. Miller GST Exempt Trust for the benefit of
Stacie Miller Halpern u/a dated 7/6/78
/s/ Sydell L. Miller
--------------------------
Sydell L. Miller, as Trustee for and on behalf of each
of the following Trusts:
Arnold M. Miller Included Marital Trust for the benefit
of Sydell L. Miller u/a dated 7/6/78
Lauren Miller (now Spilman) Trust for the benefit of
Lauren Miller Spilman u/a dated 7/11/89
Stacie Miller (now Halpern) Trust for the benefit of
Stacie Miller Halpern u/a dated 7/11/89
/s/ David A. Cook
--------------------------
David A. Cook
/s/ Robert M. Diemer
--------------------------
Robert M. Diemer
/s/ Jeffrey J. Kunz
--------------------------
Jeffrey J. Kunz
/s/ Dennis E. Lubin
--------------------------
Dennis E. Lubin
/s/ Robert G. Markey
--------------------------
Robert G. Markey
/s/ D. Scott Miller
--------------------------
D. Scott Miller
/s/ Robert C. Miller
--------------------------
Robert C. Miller
SHAREHOLDERS SCHEDULE I
1. David A. Cook 12. Sydell L. Miller Dynasty Trust
36341 Blue Grass Oval for the benefit of Stacie
Solon, OH 44139 Miller Halpern u/a dated
8/26/93
2. Stacie Miller Halpern 3200 National City Center
140 Cyrstal Lane Cleveland, OH 44114
Aurora, OH 44202
3. Jeffrey J. Kunz 13. Arnold M. Miller and Sydell L.
2432 Channing Road Miller Trust for the benefit
University Heights, OH 44118 of Lauren Miller Spilman u/a
dated 12/30/91
4. Dennis E. Lubin 3200 National City Center
180 Glen Road Cleveland, OH 44114
Moreland Hills, OH 44122
14. Arnold M. Miller and Sydell L.
5. Robert G. Markey Miller Trut for the Benefit
27925 Belgrave Road of Stacie Miller Halpern u/a
Pepper Pike, OH 44124 dated 12/30/91
3200 natioal City Center
6. D. Scott Miller Cleveland, OH 44114
4588 Copley-Sharon Road
Copley, OH 44321 15. Sydell Miller Income Trust for
the benefit of Sydell Miller
7. Robert C. Miller u/a dated 7/31/90
2156 White Marsh Drive 3200 National City Center
Twinsburg, OH 44087 Cleveland, OH 44114
8. Sydell L. Miller 16. Arnold M. Miller Irrevocable
25119 Wimbledon Road Trust for the benefit of
Beachwood, OH 44122 Lauren Miller Spilman u/a
dated 12/28/83
9. Lauren Miller Spilman 3200 National City Center
311 High Bluff Court Cleveland, OH 44114
Aurora, OH 44202
17. Arnold M. Miller Irrevocable
10. Robert M. Diemer Trust for the benefit of
10499 White Ash Trail Stacie Miller Halpern u/a
Twinsburg, OH 44087 dated 12/28/83
3200 National City Center
11. Sydell L. Miller Dynasty Trust Cleveland, OH 44114
for the benefit of
Lauren Miller Spilman u/a 18. Arnold M. Miller Included
dated 8/26/93 Marital Trust for the benefit
3200 National City Center of Sydell L. Miller u/a dated
Cleveland, OH 44114 7/6/78
3200 National City Center
Cleveland, OH 44114
19. Lauren Miller (now Spilman)
Trust for the benefit of
Lauren Miller Spilman u/a
dated 7/11/89
25119 Wimbledon Road
Beachwood, OH 44122
20. Stacie Miller (now Halpern)
Trust for the benefit of
Stacie Miller Halpern u/a
dated 7/11/89
25119 Wimbledon Road
Beachwood, OH 44122
21. Arnold M. Miller GST Exempt
Trust for the benefit of
Lauren Miller Spilman u/a
dated 7/6/78
3200 National City Center
Cleveland, OH 44114
22. Arnold M. Miller GST Exempt
Trust for the benefit of
Stacie Miller Halpern u/a
dated 7/6/78
3200 National City Center
Cleveland, OH 44114
23. Estate of Arnold M. Miller
25119 Wimbledon Road
Beachwood, OH 44122