Exhibit 1(b)
BRISTOL-MYERS SQUIBB COMPANY
[COMMON STOCK, $0.10 PAR VALUE]
[PREFERRED STOCK]
----------------
UNDERWRITING AGREEMENT
............., 20...
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described.
Ladies and Gentlemen:
From time to time Bristol-Myers Squibb Company, a Delaware corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain shares of its [COMMON STOCK, PAR VALUE $0.10 PER
SHARE] [PREFERRED STOCK] [CONVERTIBLE INTO [COMMON STOCK][PREFERRED STOCK]] (the
"Shares") specified in Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the "Firm Shares") [TO WHICH WARRANTS FOR THE PURCHASE
OF [SUBORDINATED] DEBT SECURITIES (THE "DEBT SECURITIES")] OF THE COMPANY [THE
"WARRANTS"] WILL BE ATTACHED,]. If specified in such Pricing Agreement, the
Company may grant to the Underwriters the right to purchase at their election an
additional number of shares, specified in such Pricing Agreement as provided in
Section 3 hereof (the "Optional Shares"). The Firm Shares and the Optional
Shares, if any, which the Underwriters elect to purchase pursuant to Section 3
hereof are herein collectively called the "Designated Shares".
The terms and rights of any particular issuance of Designated Shares shall
be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to time to
the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as
their representative. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Shares or as an obligation of any
of the Underwriters to purchase any of the Shares. The obligation of the Company
to issue and sell any of the Shares and the obligation of any of the
Underwriters to purchase any of the Shares shall be evidenced by the Pricing
Agreement with respect to the Designated Shares specified therein. Each Pricing
Agreement shall specify the aggregate number of the Firm Shares, the maximum
number of Optional Shares, if any, the initial public offering price of such
Firm and Optional Shares or the manner of determining such price, the purchase
price to the Underwriters of such Designated Shares, the names of the
Underwriters of such Designated Shares, the names of the Representatives of such
Underwriters, the number of such Designated Shares to be purchased by each
Underwriter and the commission, if any, payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such Firm
and Optional Shares, if any, and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Shares. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Two registration statements on Form S-3 (File Nos. 333-49227 and
333-65444) (the "Initial Registration Statements") in respect of the
Shares [AND THE WARRANTS] have been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration Statements and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to the Representatives and, excluding exhibits to the
Initial Registration Statements, but including all documents incorporated
by reference in the prospectus contained in the latest registration
statement, have been declared effective by the Commission in such form;
other than a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which
became effective upon filing, no other document with respect to the
Initial Registration Statements or document incorporated by reference
therein has heretofore been filed, or transmitted for filing, with the
Commission (other than prospectuses filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, each in the form
heretofore delivered to the Representatives); and no stop order suspending
the effectiveness of any Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statements or filed with the
Commission pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"); the various parts of the Initial Registration
Statements, each as amended to the date of this Agreement, any
post-effective amendment thereto and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statements at the time such part of the Initial Registration
Statements became effective, each as amended at the time such part of the
Initial Registration Statements became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Shares, in the
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form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Initial
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Initial Registration
Statement that is incorporated by reference in the Registration Statement;
and any reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in relation
to the applicable Designated Shares in the form in which it is filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter of Designated Shares through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Shares;
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(d) Neither the Company nor any of its significant subsidiaries as
defined in Rule 1-02(w) of Regulation S-X under the Securities Act (the
"Significant Subsidiaries") has sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change
in the capital stock or long-term debt of the Company or any of its
Significant Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) The Shares have been duly authorized, and, when the Firm Shares
are issued and delivered to and paid for by the Underwriters pursuant to
this Agreement and the Pricing Agreement with respect to such Designated
Shares and, in the case of any Optional Shares, pursuant to Over-allotment
Options (as defined in Section 3 hereof) with respect to such Shares, such
Designated Shares will be duly and validly issued and fully paid and
non-assessable; the Shares conform to the descriptions thereof contained
in the Registration Statement and the Designated Shares will conform to
the descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Shares;
[( ) WHEN THE SHARES ARE DELIVERED AND PAID FOR PURSUANT TO THIS
AGREEMENT, SUCH SHARES WILL BE CONVERTIBLE INTO COMMON STOCK OF THE
COMPANY IN ACCORDANCE WITH THEIR TERMS; THE SHARES OF COMMON STOCK
INITIALLY ISSUABLE UPON CONVERSION OF SUCH SHARES HAVE BEEN DULY
AUTHORIZED AND RESERVED FOR ISSUANCE UPON SUCH CONVERSION AND, WHEN ISSUED
UPON SUCH CONVERSION, WILL BE VALIDLY ISSUED, FULLY PAID AND
NON-ASSESSABLE; THE OUTSTANDING SHARES OF COMMON STOCK HAVE BEEN DULY
AUTHORIZED AND VALIDLY ISSUED, ARE FULLY PAID AND NON-ASSESSABLE AND
CONFORM TO THE DESCRIPTION THEREOF CONTAINED IN THE PROSPECTUS; AND THE
STOCKHOLDERS OF THE COMPANY HAVE NO PREEMPTIVE RIGHTS WITH RESPECT TO THE
COMMON STOCK.]
[( ) WHEN THE SHARES ARE DELIVERED AND PAID FOR PURSUANT TO THIS
AGREEMENT, SUCH SHARES WILL BE CONVERTIBLE INTO PREFERRED STOCK OF THE
COMPANY IN ACCORDANCE WITH THEIR TERMS; THE SHARES OF PREFERRED STOCK
INITIALLY ISSUABLE UPON CONVERSION OF SUCH SHARES HAVE BEEN DULY
AUTHORIZED AND RESERVED FOR ISSUANCE UPON SUCH CONVERSION AND, WHEN ISSUED
UPON SUCH CONVERSION, WILL BE VALIDLY ISSUED, FULLY PAID AND
NON-ASSESSABLE; THE OUTSTANDING SHARES OF PREFERRED STOCK HAVE BEEN DULY
AUTHORIZED AND VALIDLY ISSUED, ARE FULLY PAID AND NON-ASSESSABLE AND
CONFORM TO THE DESCRIPTION THEREOF
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CONTAINED IN THE PROSPECTUS; AND THE STOCKHOLDERS OF THE COMPANY HAVE NO
PREEMPTIVE RIGHTS WITH RESPECT TO THE PREFERRED STOCK.]
[( ) THE SHARES ARE CONVERTIBLE INTO DEBT SECURITIES OF THE COMPANY
IN ACCORDANCE WITH THEIR TERMS; THE INDENTURE UNDER WHICH THE DEBT
SECURITIES WILL BE ISSUED HAS BEEN DULY AUTHORIZED AND DULY QUALIFIED
UNDER THE TRUST INDENTURE ACT; THE DEBT SECURITIES INITIALLY ISSUABLE UPON
CONVERSION OF SUCH SHARES HAVE BEEN DULY AUTHORIZED; THE INDENTURE HAS
BEEN DULY EXECUTED AND DELIVERED AND CONFORMS TO THE DESCRIPTION THEREOF
IN THE PROSPECTUS; AND THE DEBT SECURITIES CONFORM TO THE DESCRIPTION
THEREOF CONTAINED IN THE PROSPECTUS AND, WHEN DULY EXECUTED,
AUTHENTICATED, ISSUED AND DELIVERED UPON SUCH CONVERSION, WILL CONSTITUTE
VALID AND LEGALLY BINDING OBLIGATIONS OF THE COMPANY, ENFORCEABLE IN
ACCORDANCE WITH THEIR TERMS, SUBJECT, AS TO ENFORCEMENT, TO BANKRUPTCY,
INSOLVENCY, FRAUDULENT TRANSFER, REORGANIZATION AND OTHER LAWS OF GENERAL
APPLICABILITY RELATING TO OR AFFECTING CREDITORS' RIGHTS AND TO GENERAL
EQUITY PRINCIPLES;]
[( ) THE WARRANTS HAVE BEEN DULY AUTHORIZED AND, WHEN ISSUED AND
DELIVERED PURSUANT TO THIS AGREEMENT AND COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED IN THE WARRANT AGREEMENT, WILL HAVE BEEN DULY EXECUTED,
COUNTERSIGNED, ISSUED AND DELIVERED AND WILL CONSTITUTE VALID AND LEGALLY
BINDING OBLIGATIONS OF THE COMPANY ENTITLED TO THE BENEFITS PROVIDED BY
THE WARRANT AGREEMENT TO BE DATED AS OF ............, 20.. (THE "WARRANT
AGREEMENT") BETWEEN THE COMPANY AND ..............., AS WARRANT AGENT (THE
"WARRANT AGENT"), UNDER WHICH THEY ARE TO BE ISSUED, WHICH WILL BE
SUBSTANTIALLY IN THE FORM FILED AS AN EXHIBIT TO THE REGISTRATION
STATEMENT; THE WARRANT AGREEMENT HAS BEEN DULY AUTHORIZED AND, WHEN
EXECUTED BY THE COMPANY AND THE WARRANT AGENT, WILL CONSTITUTE A VALID AND
LEGALLY BINDING INSTRUMENT ENFORCEABLE IN ACCORDANCE WITH ITS TERMS,
SUBJECT, AS TO ENFORCEMENT, TO BANKRUPTCY, INSOLVENCY, REORGANIZATION AND
OTHER LAWS OF GENERAL APPLICABILITY RELATING TO OR AFFECTING CREDITORS'
RIGHTS AND TO GENERAL EQUITY PRINCIPLES; AND THE WARRANTS AND THE WARRANT
AGREEMENT CONFORM TO THE DESCRIPTIONS THEREOF IN THE PROSPECTUS;]
(h) The issue and sale of the Shares [AND THE WARRANTS] and the
compliance by the Company with all of the provisions of this Agreement,
any Pricing Agreement [, ANY WARRANT AGREEMENT] and each Over-allotment
Option, if any, and the consummation of the transactions herein and
therein contemplated will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company
is subject, except for such breaches, violations and defaults that
individually and in the aggregate would not reasonably be expected to have
a Material Adverse Effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries (a "Material Adverse Effect"), (ii) result in any
violation of the provisions of the Certificate of Incorporation or By-laws
of the Company, or (iii) result in any violation of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties, except for
such breaches, violations and defaults that individually and in the
aggregate would not reasonably be expected to have a Material Adverse
Effect; and no consent, approval, authorization, order, registration or
qualification of or with any such court or
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governmental agency or body is required for the issue and sale of the
Shares [AND THE WARRANTS] or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement [,
ANY WARRANT AGREEMENT] or any Over-allotment Option, except such as have
been, or will have been prior to each Time of Delivery (as defined in
Section 4 hereof), obtained under the Act or which if not obtained would
not have a Material Adverse Effect on the consummation by the Company of
the transactions contemplated by this Agreement; and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares [OR WARRANTS] by the Underwriters;
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
Significant Subsidiaries is a party or of which any property of the
Company or any of its Significant Subsidiaries is the subject, which, if
determined adversely to the Company or any of its Significant
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(j) Except as described in the Prospectus, to the Company's
knowledge, the Company and its Significant Subsidiaries own, possess or
have the right to employ sufficient patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
software, systems or procedures), trademarks, service marks and trade
names, inventions, computer programs, technical data and information
(collectively, the "Intellectual Property Rights") reasonably necessary to
conduct their businesses as now conducted. Neither the Company nor any of
its Significant Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
Intellectual Property Rights except as would not reasonably be expected
to, individually or in the aggregate, result in a Material Adverse Effect,
whether or not arising from transactions in the ordinary course of
business. Except as described in the Prospectus, to the Company's
knowledge the use of the Intellectual Property Rights in connection with
the business and operations of the Company and its subsidiaries does not
infringe on the rights of any person, except as could not reasonably be
expected to individually or in the aggregate result in a Material Adverse
Effect;
(k) The Company and each of the Significant Subsidiaries is not in
violation of any statute, or any rule, regulation, decision or order of
any governmental agency or body or any court relating to the use, disposal
or release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), does not own or operate
any real property which to its knowledge is contaminated with any
substance that is subject to any environmental laws, is not to its
knowledge liable for any off-site disposal or contamination pursuant to
any environmental laws, and is not subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would have, individually or in the aggregate, a Material Adverse Effect;
and the Company is not aware of any pending investigation which could
reasonably be expected to lead to such a claim;
(l) Neither the Company nor any of its Significant Subsidiaries is
in violation of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party
or by which
6
it or any of its properties may be bound, except for such violations that
individually and in the aggregate would not reasonably be expected to have
a Material Adverse Effect;
(m) The statements set forth in the Prospectus under the captions
"Description of the Preferred Stock" and "Description of the Common Stock"
[AND "DESCRIPTION OF THE WARRANTS"] [AND "DESCRIPTION OF THE DEBT
SECURITIES"], insofar as they purport to constitute a summary of the terms
of the stock[, THE WARRANTS] [AND THE DEBT SECURITIES], and under the
captions "Plan of Distribution" and "Underwriting", insofar as it purports
to describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair;
(n) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(o) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(p) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release of the
Firm Shares, the several Underwriters propose to offer the Firm Shares for sale
upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "Overallotment Option") to purchase at their election up to the number of
Optional Shares set forth in such Pricing Agreement, on the terms set forth in
the paragraph above, for the sole purpose of covering over-allotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the Company, given
within a period specified in the Pricing Agreement, setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by the Representatives but in no event
earlier than the First Time of Delivery (as defined in Section 4 hereof) or,
unless the Representatives and the Company otherwise agree in writing, earlier
than or later than the respective number of business days after the date of such
notice set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares to
be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives may
determine to the nearest 100 shares). The total number of Designated Shares to
be purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares which the Underwriters
elect to purchase.
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4. Certificates for the Firm Shares and the Optional Shares to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to the Representative at least forty-eight
hours in advance as specified in such Pricing Agreement, (i) with respect to the
Firm Shares, all in the manner and at the place and time and date specified in
such Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "First Time of Delivery" and (ii) with respect to the
Optional Shares, if any, in the manner and at the time and date specified by the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Shares, or at such other time
and date as the Representatives and the Company may agree upon in writing, such
time and date, if not the First Time of Delivery, herein called the "Second Time
of Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Shares in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Shares or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating
to such Shares and prior to any Time of Delivery for such Shares which
shall be disapproved by the Representatives for such Shares promptly after
reasonable notice thereof; to advise the Representatives promptly of any
such amendment or supplement after any Time of Delivery for such Shares
and furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Shares, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed with
the Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating to
the Shares, of the suspension of the qualification of such Shares [OR THE
WARRANTS OR THE DEBT SECURITIES ISSUABLE UPON EXERCISE OF THE WARRANTS]
[AND THE [SHARES OF [COMMON STOCK] [PREFERRED STOCK]] [DEBT SECURITIES]
ISSUABLE UPON CONVERSION OF THE SHARES] for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any
prospectus relating to the Shares or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may
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reasonably request to qualify such Shares[, THE WARRANTS AND THE DEBT
SECURITIES ISSUABLE UPON EXERCISE OF THE WARRANTS] [AND THE [SHARES OF
[COMMON STOCK] [PREFERRED STOCK]] [DEBT SECURITIES] ISSUABLE UPON
CONVERSION OF THE SHARES] for offering and sale under the securities laws
of such jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of such Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to [5:00 P.M., NEW YORK CITY TIME, ON THE NEW YORK
BUSINESS DAY NEXT SUCCEEDING THE DATE OF THIS AGREEMENT] and from time to
time thereafter to the extent delivery of a Prospectus is required, to
furnish the Underwriters with written and electronic copies of the
Prospectus in New York City as amended or supplemented in such quantities
as the Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Shares[, THE WARRANTS AND THE DEBT SECURITIES ISSUABLE UPON
EXERCISE OF THE WARRANTS] [AND THE [SHARES OF [COMMON STOCK] [PREFERRED
STOCK]] [DEBT SECURITIES] ISSUABLE UPON CONVERSION OF THE SHARES] and if
at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
period that a Prospectus is required to be delivered to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act or the Exchange Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many written and
electronic copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Shares and continuing to and including the
later of (i) the termination of trading restrictions for such Designated
Shares, as notified to the Company by the Representatives and (ii) the
last Time of Delivery for such Designated Shares, not to offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder,
any securities of the Company that are substantially similar to the
Designated Shares, [INCLUDING BUT NOT LIMITED TO ANY SECURITIES THAT ARE
CONVERTIBLE INTO OR EXCHANGEABLE FOR, OR THAT REPRESENT THE RIGHT TO
RECEIVE, STOCK OR ANY SUCH SUBSTANTIALLY SIMILAR SECURITIES (OTHER THAN
PURSUANT TO EMPLOYEE STOCK OPTION PLANS EXISTING ON, OR UPON THE
CONVERSION OF CONVERTIBLE OR EXCHANGEABLE SECURITIES OUTSTANDING AS OF,
THE DATE OF THE PRICING AGREEMENT FOR SUCH DESIGNATED SHARES)] without the
prior written consent of the Representatives; [AND]
(f) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule
9
462(b) Registration Statement with the Commission in compliance with Rule
462(b) by [10:00 P.M., WASHINGTON, D.C. TIME, ON THE DATE OF THIS
AGREEMENT,] and the Company shall at the time of filing either pay the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act; [AND]
(g) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, service marks and corporate logo for use on the website, if
any, operated by such Underwriter for the purpose of facilitating the
on-line offering of the Shares [AND THE WARRANTS] (the "License");
provided, however, that the License shall be used solely for the purpose
described above, is granted without any fee and may not be assigned or
transferred[; AND ] [.].
[( ) TO RESERVE AND KEEP AVAILABLE AT ALL TIMES, FREE OF PREEMPTIVE
RIGHTS, SHARES OF [PREFERRED STOCK] [COMMON STOCK] FOR THE PURPOSE OF
ENABLING THE COMPANY TO SATISFY ANY OBLIGATION TO ISSUE [PREFERRED STOCK]
[COMMON STOCK] UPON CONVERSION OF THE SHARES]; AND]
[( ) TO USE ITS BEST EFFORTS TO LIST, SUBJECT TO NOTICE OF ISSUANCE,
[THE WARRANTS] [AND THE SHARES OF [PREFERRED STOCK] [COMMON STOCK]
[ISSUABLE UPON CONVERSION OF THE SHARES]] ON THE NEW YORK STOCK EXCHANGE
AND THE PACIFIC EXCHANGE, INC.]
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares [THE WARRANTS AND THE DEBT SECURITIES ISSUABLE UPON
EXERCISE OF THE WARRANTS] [AND THE [SHARES OF [PREFERRED STOCK] [COMMON STOCK]]
[DEBT SECURITIES] issuable upon conversion of the Shares under the Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, [AND
WARRANT AGREEMENT] any Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares [AND THE
WARRANTS]; (iii) all expenses in connection with the qualification of the
Shares[, THE WARRANTS AND THE DEBT SECURITIES ISSUABLE UPON EXERCISE OF THE
WARRANTS], [AND THE [SHARES OF [PREFERRED STOCK] [COMMON STOCK]] [DEBT
SECURITIES] ISSUABLE UPON CONVERSION OF THE SHARES] for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment
survey(s); (iv) any filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, any required reviews by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares [AND THE WARRANTS]; (v) the cost of preparing certificates for the Shares
[AND THE WARRANTS]; (vi) the cost and charges of any transfer agent or registrar
or dividend disbursing agent; [(vii) THE FEES AND EXPENSES OF THE WARRANT AGENT
AND ANY AGENT OF THE WARRANT AGENT AND THE FEES AND DISBURSEMENTS OF COUNSEL FOR
THE WARRANT AGENT IN CONNECTION WITH THE WARRANT AGREEMENT AND THE WARRANTS;]
and (viii) all other costs and expenses incident to the performance of its
obligations hereunder and under any Over-allotment Options which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 12 hereof, the
Underwriters will pay all of their own costs and expenses, including the
10
fees of their counsel, transfer taxes on resale of any of the Shares [AND THE
WARRANTS] by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any Designated Shares under the
Pricing Agreement relating to such Designated Shares shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated by reference
in the Pricing Agreement relating to such Designated Shares are, at and as of
each Time of Delivery for such Designated Shares, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Shares shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by [10:00 P.M.,
WASHINGTON, D.C. TIME, ON THE DATE OF THIS AGREEMENT]; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated each Time of
Delivery for such Designated Shares, with respect to the matters covered
in paragraphs (i), (ii), (iii), (iv), (v), and (vi) of subsection (c)
below as well as such other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
(c) Cravath Swaine & Moore, special counsel for the Company, shall
have furnished to the Representatives their written opinions, dated each
Time of Delivery for such Designated Shares, respectively, in form and
substance satisfactory to the Representatives, to the effect that:
(i) Based solely on its review of a certificate from the
Secretary of State of Delaware, the Company is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus
as amended or supplemented;
(ii) This Agreement and the Pricing Agreement with respect to
the Designated Shares have been duly authorized, executed and
delivered by the Company;
[( ) THE SHARES ARE CONVERTIBLE INTO [COMMON STOCK][PREFERRED
STOCK] OF THE COMPANY IN ACCORDANCE WITH THEIR TERMS, AND THE SHARES
OF [COMMON STOCK] [PREFERRED STOCK] INITIALLY ISSUABLE UPON
CONVERSION OF THE SHARES HAVE BEEN DULY AUTHORIZED AND RESERVED FOR
ISSUANCE UPON SUCH CONVERSION AND, WHEN ISSUED UPON SUCH CONVERSION,
WILL BE VALIDLY ISSUED, FULLY PAID AND NON-ASSESSABLE; THE
OUTSTANDING SHARES OF [COMMON STOCK][PREFERRED STOCK] HAVE BEEN DULY
AUTHORIZED AND VALIDLY ISSUED, ARE FULLY PAID AND NON-ASSESSABLE AND
CONFORM TO THE DESCRIPTION THEREOF CONTAINED IN THE PROSPECTUS; AND
THE
11
STOCKHOLDERS OF THE COMPANY HAVE NO PREEMPTIVE RIGHTS WITH RESPECT
TO THE [COMMON STOCK][PREFERRED STOCK];]
[( ) THE SHARES ARE CONVERTIBLE INTO DEBT SECURITIES OF THE
COMPANY IN ACCORDANCE WITH THEIR TERMS; THE INDENTURE UNDER WHICH
THE DEBT SECURITIES WILL BE ISSUED HAS BEEN DULY AUTHORIZED AND DULY
QUALIFIED UNDER THE TRUST INDENTURE ACT; THE DEBT SECURITIES
INITIALLY ISSUABLE UPON CONVERSION OF SUCH SHARES HAVE BEEN DULY
AUTHORIZED; THE INDENTURE HAS BEEN DULY EXECUTED AND DELIVERED AND
CONFORMS TO THE DESCRIPTION THEREOF IN THE PROSPECTUS; AND THE DEBT
SECURITIES CONFORM TO THE DESCRIPTION THEREOF CONTAINED IN THE
PROSPECTUS AND, WHEN DULY EXECUTED, AUTHENTICATED, ISSUED AND
DELIVERED UPON SUCH CONVERSION, WILL CONSTITUTE VALID AND LEGALLY
BINDING OBLIGATIONS OF THE COMPANY, ENFORCEABLE IN ACCORDANCE WITH
THEIR TERMS, SUBJECT, AS TO ENFORCEMENT, TO BANKRUPTCY, INSOLVENCY,
FRAUDULENT TRANSFER, REORGANIZATION, AND OTHER LAWS OF GENERAL
APPLICABILITY RELATING TO OR AFFECTING CREDITORS' RIGHTS AND TO
GENERAL EQUITY PRINCIPLES;]
[( ) THE WARRANTS HAVE BEEN DULY AUTHORIZED AND, WHEN ISSUED
AND DELIVERED PURSUANT TO THIS AGREEMENT AND COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED IN THE WARRANT AGREEMENT, WILL HAVE BEEN
DULY EXECUTED, COUNTERSIGNED, ISSUED AND DELIVERED AND WILL
CONSTITUTE VALID AND LEGALLY BINDING OBLIGATIONS OF THE COMPANY
ENTITLED TO THE BENEFITS PROVIDED BY THE WARRANT AGREEMENT TO BE
DATED AS OF ............, 20.. (THE "WARRANT AGREEMENT") BETWEEN THE
COMPANY AND ..............., AS WARRANT AGENT (THE "WARRANT AGENT"),
UNDER WHICH THEY ARE TO BE ISSUED, WHICH WILL BE SUBSTANTIALLY IN
THE FORM FILED AS AN EXHIBIT TO THE REGISTRATION STATEMENT; THE
WARRANT AGREEMENT HAS BEEN DULY AUTHORIZED AND, WHEN EXECUTED BY THE
COMPANY AND THE WARRANT AGENT, WILL CONSTITUTE A VALID AND LEGALLY
BINDING INSTRUMENT ENFORCEABLE IN ACCORDANCE WITH ITS TERMS,
SUBJECT, AS TO ENFORCEMENT, TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION AND OTHER LAWS OF GENERAL APPLICABILITY RELATING TO
OR AFFECTING CREDITORS' RIGHTS AND TO GENERAL EQUITY PRINCIPLES; AND
THE WARRANTS AND THE WARRANT AGREEMENT CONFORM TO THE DESCRIPTIONS
THEREOF IN THE PROSPECTUS;]
(iii) The statements set forth in the Prospectus under the
caption "Description of Preferred Stock" and "Description of Common
Stock [AND "DESCRIPTION OF THE WARRANTS"] [AND "DESCRIPTION OF THE
DEBT SECURITIES"]", insofar as they purport to constitute a summary
of the terms of the Stock[, THE WARRANTS] [AND THE DEBT SECURITIES]
are accurate, complete and fair;
(iv) The Company is not an "Investment Company", as such term
is defined in the Investment Company Act;
(v) The Registration Statement and the Prospectus as amended
or supplemented, and any further amendments and supplements thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion), comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder;
(vi) Although they do not assume any responsibility for the
accuracy,
12
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred
to in the opinion in subsection (iii) of this Section 7(c), they
have no reason to believe that, as of its effective date, the
Registration Statement, as most recently amended, or any further
amendment thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and
information of a financial or accounting nature therein, as to which
such counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules and information of a financial or
accounting nature therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Company
prior to such Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or required
to be described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required;
(d) John L. McGoldrick, general counsel for the Company, shall have
furnished to the Representatives its written opinion, dated each Time of
Delivery for such Designated Shares, respectively, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented, and all of the issued
shares of capital stock of the Company (including the Designated
Shares being delivered at such Time of Delivery) have been duly and
validly authorized and issued and are fully paid and non-assessable;
and the Designated Shares conform to the description thereof in the
Prospectus as amended or supplemented;
(iii) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Significant
Subsidiaries is a party or of which any property of the Company or
any of its Significant Subsidiaries is the subject which, if
determined adversely to the Company or any of its Significant
Subsidiaries, would individually or in
13
the aggregate have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of
the Company and its Subsidiaries; and to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iv) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Shares [OR
THE WARRANTS] being delivered at such Time of Delivery or the
consummation by the Company of the transactions contemplated by this
Agreement [, THE WARRANT AGREEMENT,] or such Pricing Agreement,
except such as have been obtained under the Act [OR SUCH AS MAY BE
REQUIRED UNDER THE ACT [AND THE TRUST INDENTURE ACT] IN CONNECTION
WITH THE [DEBT SECURITIES] [COMMON STOCK] [PREFERRED STOCK] ISSUABLE
UPON CONVERSION OF THE SHARES] or which if not obtained would not
have a Material Adverse Effect on the consummation by the Company of
the transactions contemplated by this Agreement, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Designated Shares [AND THE
WARRANTS] by the Underwriters;
(v) Neither the Company nor any of its Significant
Subsidiaries is in violation of its Certificate of Incorporation or
By-laws or, to the best of such counsel's knowledge, in default in
the performance or observance of any obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be bound,
except for such violations and defaults that individually and in the
aggregate would not reasonably be expected to have a Material
Adverse Effect;
(vi) The issue and sale of the Designated Shares [AND
WARRANTS] being delivered at such Time of Delivery and the
compliance by the Company with all of the provisions of this
Agreement [, THE WARRANT AGREEMENT,] and the Pricing Agreement with
respect to the Designated Shares and the consummation of the
transactions herein and therein contemplated will not (i) conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company is a party or
by which the Company is bound or to which any of the property or
assets of the Company is subject, except for such breaches,
violations and defaults that individually and in the aggregate would
not reasonably be expected to have a Material Adverse Effect, (ii)
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or (iii) result in any
violation of any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties, except for
such breaches, violations and defaults that individually and in the
aggregate would not reasonably be expected to have a Material
Adverse Effect;
(vii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules and information of a financial or
accounting nature therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
14
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of
such documents (other than financial statements and related
schedules and information of a financial or accounting nature
therein, as to which such counsel need express no opinion), when
they became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading; and
(viii) The Registration Statement and the Prospectus as
amended or supplemented, and any further amendments and supplements
thereto made by the Company prior to such Time of Delivery (other
than the financial statements and related schedules and information
of a financial or accounting nature therein, as to which such
counsel need express no opinion), comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder; although such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
subsection (iii) of Section 7(c), they have no reason to believe
that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
and information of a financial or accounting nature therein, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other
than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as
of such Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
and information of a financial or accounting nature therein, as to
which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and such
counsel does not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required;
15
(e) On the date of the Pricing Agreement for such Designated Shares,
and at each Time of Delivery for such Designated Shares, the independent
accountants of the Company who have certified the consolidated financial
statements of the Company included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a
letter or letters, dated the respective dates of delivery thereof, in form
and substance satisfactory to the Representatives, to the effect set forth
in Annex II hereto, and with respect to such letter dated such date of the
Pricing Agreement, as to such other matters as the Representatives may
reasonably request;
(f) (i) Neither the Company nor any of its Significant Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Shares any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Shares, and (ii) since the respective dates as of which
information is given in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Shares there shall not have
been any change in the capital stock or long-term debt of the Company or
any of its Significant Subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its Significant Subsidiaries, otherwise than
as set forth or contemplated in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated Shares, the
effect of which, in any such case described in clause (i) or (ii), is in
the judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Shares [AND THE WARRANTS] on the terms and in
the manner contemplated in the Prospectus as amended relating to the
Designated Shares [AND THE WARRANTS];
(g) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock
(h) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following: (i)
a suspension or material limitation in trading in securities generally on
the New York Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange; (iii)
a general moratorium on commercial banking activities declared by either
Federal or New York State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this clause (iv) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Firm Shares or Optional Shares or both on the terms
and in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Shares;
(i) The Shares at each Time of Delivery shall have been duly listed,
subject to notice
16
of issuance, on the New York Stock Exchange and the Pacific Exchange,
Inc.;
(j) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of the Pricing Agreement relating to
such Designated Shares; and
[( ) THE SHARES OF [PREFERRED STOCK] [COMMON STOCK] ISSUABLE UPON
CONVERSION OF THE SHARES SHALL HAVE BEEN DULY LISTED, SUBJECT TO THE
NOTICE OF ISSUANCE, ON THE NEW YORK STOCK EXCHANGE AND THE PACIFIC
EXCHANGE, INC.; AND]
(k) The Company shall have furnished or caused to be furnished to
the Representatives at each Time of Delivery for the Designated Shares a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (e) of this Section and as to such other
matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, 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 each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Shares, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Shares through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Shares; and provided,
further, that the Company shall not be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact that such Underwriter sold Designated Shares
to a person as to whom it shall be established that there was not sent or given,
at or prior to the written confirmation of such sale, a copy of the Prospectus
(EXCLUDING DOCUMENTS INCORPORATED BY REFERENCE) or of the Prospectus as then
amended or supplemented (EXCLUDING DOCUMENTS INCORPORATED BY REFERENCE) in any
case where such delivery is required by the Act if the Company had previously
furnished copies thereof in sufficient quantity to such Underwriter and the
loss, claim, damage or liability of such Underwriter results from an untrue
statement or omission of a material fact contained in the Preliminary Prospectus
which was identified in writing at such time to such Underwriter and corrected
in the Prospectus (EXCLUDING DOCUMENTS INCORPORATED BY REFERENCE) or in the
Prospectus as then amended or supplemented (excluding documents incorporated by
reference).
17
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Shares, 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, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Shares, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use
therein; 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) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual 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
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Shares
[AND THE WARRANTS] on the other from the offering of the Designated Shares [AND
THE WARRANTS] 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
18
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Shares [AND THE WARRANTS] 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 such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Shares [AND
THE WARRANTS] underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated Shares [AND
THE WARRANTS] in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Shares and 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
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Shares or Optional Shares [AND WARRANTS] which it has agreed to purchase
under the Pricing Agreement relating to such Shares, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Shares [AND WARRANTS] on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Firm Shares or Optional Shares [AND
WARRANTS], as the case may be, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Shares on such
terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they
19
have so arranged for the purchase of such Shares [AND WARRANTS], or the Company
notifies the Representatives that it has so arranged for the purchase of such
Shares [AND WARRANTS], the Representatives or the Company shall have the right
to postpone a Time of Delivery for such Shares for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus as amended or supplemented, or in
any other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Shares [AND
WARRANTS].
(b) If, after giving effect to any arrangements for the purchase of the
Firm Shares [, WARRANTS,] or Optional Shares, as the case may be, of a
defaulting Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of such Shares [AND
WARRANTS] which remains unpurchased does not exceed one-eleventh of the
aggregate number of the Firm Shares [, WARRANTS,] or Optional Shares, as the
case may be, to be purchased at the respective Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the number of Firm Shares [, WARRANTS,] or Optional Shares, as the case
may be, which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Shares [AND WARRANTS] and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
number of Firm Shares [, WARRANTS,] or Optional Shares, as the case may be,
which such Underwriter agreed to purchase under such Pricing Agreement) of the
Firm Shares [, WARRANTS,] or Optional Shares, as the case may be, of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Shares [, WARRANTS,] or Optional Shares, as the case may be, of a
defaulting Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of Firm Shares [,
WARRANTS,] or Optional Shares, as the case may be, which remains unpurchased
exceeds one-eleventh of the aggregate number of the Firm Shares [, WARRANTS,] or
Optional Shares, as the case may be, to be purchased at the respective Time of
Delivery, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Firm Shares [, WARRANTS,] or Optional Shares, as the
case may be, of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Shares [, WARRANTS,] or the Over-allotment
Option relating to such Optional Shares, as the case may be, shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. [EACH UNDERWRITER AGREES THAT IT WILL NOT OFFER, SELL OR DELIVER ANY
OF THE DESIGNATED SHARES IN ANY JURISDICTION OUTSIDE THE UNITED STATES EXCEPT
UNDER CIRCUMSTANCES THAT WILL RESULT IN COMPLIANCE WITH THE APPLICABLE LAWS
THEREOF, AND THAT IT WILL TAKE AT ITS OWN EXPENSE WHATEVER ACTION IS REQUIRED TO
PERMIT ITS PURCHASE AND RESALE OF THE DESIGNATED SHARES IN SUCH JURISDICTIONS.]
[ADD OTHER INTERNATIONAL REPRESENTATIONS AND AGREEMENTS AS APPLICABLE.]
11. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by
20
or on behalf of them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and payment for
the Shares [AND WARRANTS].
12. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter with respect to the Firm Shares [, WARRANTS,] or Optional
Shares with respect to which such Pricing Agreement shall have been terminated
except as provided in Sections 6 and 8 hereof; but, if for any other reason,
Designated Shares [OR WARRANTS] are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Shares, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Shares [OR
WARRANTS] except as provided in Sections 6 and 8 hereof.
13. In all dealings hereunder, the Representatives of the Underwriters of
Designated Shares shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
14. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 11 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Shares [OR
ANY OF THE WARRANTS] from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
15. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
16. This AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
21
18. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax benefits expected to be claimed with respect to such
transaction, without the Underwriters imposing any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof.
Very truly yours,
Bristol-Myers Squibb Company
By:
-----------------------------
Name:
Title:
Accepted as of the date hereof:
[NAME(S) OF REPRESENTATIVE(S)]
By:
---------------------------------
[NAME(S) OF CO-REPRESENTATIVE
CORPORATION(S)]
By:
---------------------------------
Name:
Title:
------------------------------------
[(NAME(S) OF CO-REPRESENTATIVE
PARTNERSHIP(S)]
22
ANNEX I
PRICING AGREEMENT
[NAME(S) OF REPRESENTATIVE(S),
As Representatives of the several
Underwriters named in Schedule I hereto,
[ADDRESS]
.........., 20..
Ladies and Gentlemen:
Bristol-Myers Squibb Company, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated .......... , 20.. (the "Underwriting Agreement"),
[BETWEEN THE COMPANY ON THE ONE HAND] [AND (NAMES OF REPRESENTATIVES NAMED
THEREIN)] ON THE OTHER HAND] (together, the "Representatives"), to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Shares specified in Schedule II hereto (the "Designated Shares" [CONSISTING OF
[WARRANTS,] FIRM SHARES AND ANY OPTIONAL SHARES THE UNDERWRITERS MAY ELECT TO
PURCHASE)]). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Shares which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of each of the Underwriters of the
Designated Shares pursuant to Section 12 of the Underwriting Agreement and the
address of the Representatives referred to in such Section 12 are set forth in
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto [AND, (b) IN THE EVENT AND TO THE EXTENT
THAT THE UNDERWRITERS SHALL EXERCISE THE ELECTION TO PURCHASE OPTIONAL SHARES,
AS PROVIDED BELOW, THE COMPANY AGREES TO ISSUE AND SELL TO EACH OF THE
UNDERWRITERS, AND EACH OF THE UNDERWRITERS AGREES, SEVERALLY AND NOT JOINTLY, TO
PURCHASE FROM THE COMPANY AT THE PURCHASE PRICE TO THE UNDERWRITERS SET FORTH IN
SCHEDULE II HERETO THAT PORTION OF THE NUMBER OF OPTIONAL SHARES AS TO WHICH
SUCH ELECTION SHALL HAVE BEEN EXERCISED].
[THE COMPANY HEREBY GRANTS TO EACH OF THE UNDERWRITERS THE RIGHT TO
PURCHASE AT THEIR ELECTION UP TO THE NUMBER OF OPTIONAL SHARES SET FORTH
OPPOSITE THE NAME OF SUCH UNDERWRITER IN SCHEDULE I HERETO ON THE TERMS REFERRED
TO IN THE PARAGRAPH ABOVE FOR THE SOLE PURPOSE OF COVERING OVER-ALLOTMENTS IN
THE SALE OF THE FIRM SHARES. ANY SUCH ELECTION TO PURCHASE OPTIONAL SHARES MAY
BE EXERCISED BY WRITTEN NOTICE FROM THE REPRESENTATIVES TO THE COMPANY GIVEN
WITHIN A PERIOD OF 30 CALENDAR DAYS AFTER THE DATE OF THIS PRICING AGREEMENT,
SETTING FORTH THE AGGREGATE NUMBER OF OPTIONAL SHARES TO BE PURCHASED AND THE
DATE ON WHICH SUCH OPTIONAL SHARES ARE TO BE DELIVERED, AS DETERMINED BY THE
REPRESENTATIVES, BUT IN NO EVENT EARLIER THAN THE FIRST TIME OF DELIVERY OR,
UNLESS THE REPRESENTATIVES AND THE COMPANY OTHERWISE AGREE IN WRITING, NO
EARLIER THAN TWO OR LATER THAN TEN BUSINESS DAYS AFTER THE DATE OF SUCH NOTICE.]
2
If the foregoing is in accordance with your understanding, please sign and
return to us [ONE FOR THE COMPANY AND ONE FOR EACH OF THE REPRESENTATIVES PLUS
ONE FOR EACH COUNSEL] counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
Bristol-Myers Squibb Company
By:
-----------------------------
Name:
Title:
Accepted as of the date hereof:
[NAME(S) OF REPRESENTATIVE(S)]
BY:
---------------------------------
[NAME(S) OF CO-REPRESENTATIVE
CORPORATION(S)]
BY:
---------------------------------
NAME:
TITLE:
------------------------------------
[(NAME(S) OF CO-REPRESENTATIVE
PARTNERSHIP(S)]
On behalf of each of the Underwriters
3
SCHEDULE I
4
SCHEDULE II
TITLE OF DESIGNATED SHARES:
NUMBER OF DESIGNATED SHARES:
Number of Firm Shares:
Maximum Number of Optional Shares:
INITIAL OFFERING PRICE TO PUBLIC:
[$........ per Share] [Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$........ per Share] [Formula]
[COMMISSION PAYABLE TO UNDERWRITERS:
$........ per Share in [specify same form of funds as in Specified Funds below]]
FORM OF DESIGNATED SHARES:
Definitive form, to be made available for checking [and packaging] at least
twenty-four hours prior to the Time of Delivery at the office of [The Depository
Trust Company or its designated custodian] [the Representatives]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same-day) funds
[DESCRIBE ANY BLACKOUT PROVISIONS WITH RESPECT TO THE DESIGNATED SHARES [AND
SHARES ISSUABLE UPON CONVERSION OF THE DESIGNATED SHARES]
TIME OF DELIVERY:
......... a.m. (New York City time), .................., 20..
[WARRANT AGREEMENT]
[CONVERSION PROVISIONS]
[INDENTURE FOR DEBT SECURITIES ISSUABLE UPON CONVERSION OF THE DESIGNATED
SHARES]
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
5
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) audited by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been furnished to
the representative or representatives of the Underwriters (the
"Representatives"), such term to include an Underwriter or Underwriters
who act without any firm being designated as its or their representatives
and are attached to such letters;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Company's Quarterly Reports on Form 10-Q incorporated by reference into
the Prospectus as indicated in their reports thereon; and on the basis of
specified procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related rules and regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years included or
incorporated by reference in the Company's Annual Reports on Form 10-K for
such fiscal years;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited financial
F-1
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and procedures
as may be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related rules and
regulations adopted by the Commission, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or included in
the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus, for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in clause (B) were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the rules and
regulations adopted by the Commission thereunder or the pro forma
adjustments have not been properly applied to the historical amounts
in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders' equity or other items specified
by the Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or
decreases
F-2
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(vi) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Shares for purposes
of the letter delivered at the Time of Delivery for such Designated Shares.
F-3