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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): DECEMBER 5, 1997
AMGEN INC.
(Exact Name of Registrant as Specified in Charter)
DELAWARE 0-12477 95-3540776
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
1840 DEHAVILLAND DRIVE
THOUSAND OAKS, CALIFORNIA 91320-1789
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (805) 447-1000
NOT APPLICABLE
(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
On November 18, 1997, Amgen Inc. (the "Company") filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-40405) (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), relating to the public offering from
time to time of up to $500,000,000 in aggregate initial offering price of debt
securities of the Company.
On December 9, 1997, the Company filed a prospectus supplement (including
the base prospectus dated November 24, 1997 contained therin) with the
Commission pursuant to Rule 424(b) under the Securities Act relating to the
issuance and sale from time to time by the Company of up to $400,000,000
aggregate initial offering price of the Company's Medium-Term Notes due nine
months or more from the date of issue (the "Medium-Term Notes").
On December 5, 1997, the Company entered into a distribution agreement
(the "Distribution Agreement") with Goldman, Sachs & Co. and Bear, Stearns & Co.
Inc. relating to the sale of the Company's Medium-Term Notes. The Distribution
Agreement is attached hereto.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
1.1 Distribution Agreement, dated December 5, 1997, among Goldman, Sachs & Co.
and Bear, Stearns & Co. Inc. and the Company.
4.1 Form of Floating Rate Medium-Term Note.
4.2 Form of Fixed Rate Medium-Term Note.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereto duly authorized.
Amgen Inc.
Dated: December 9, 1997 By /s/ Robert S. Attiyeh
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Robert S. Attiyeh
Senior Vice President Finance
and Corporate Development,
and Chief Financial Officer
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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1.1 Distribution Agreement, dated December 5, 1997, among Goldman, Sachs & Co.
and Bear, Stearns & Co. Inc. and the Company.
4.1 Form of Floating Rate Medium-Term Note.
4.2 Form of Fixed Rate Medium-Term Note.
EXHIBIT 1.1
AMGEN INC.
Up to $400,000,000
Medium-Term Notes
Due More Than 9 Months From Date Of Issue
DISTRIBUTION AGREEMENT
December 5, 1997
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
Amgen Inc., a Delaware corporation (the "Company"), confirms its agreement
with each of you with respect to up to $400,000,000 (or the equivalent thereof
in one or more foreign currencies or composite currencies) aggregate initial
offering price of its medium-term notes due more than nine months from date of
issue (the "Notes"). The Notes will be issued under an Indenture dated as of
January 1, 1992, as supplemented by a First Supplemental Indenture dated as of
February 26, 1997 (as so supplemented, the "Indenture"), between the Company and
Citibank, N.A., as Trustee (the "Trustee"), and will have the maturities,
interest rates, redemption provisions, if any, and other terms as set forth in
supplements to the Basic Prospectus referred to below.
Subject to (i) reservation by the Company of the right to sell and to
accept offers to purchase the Notes directly to or from investors on its own
behalf and (ii) Section 12, the Company hereby appoints Goldman, Sachs & Co.
("Goldman Sachs") and Bear, Stearns & Co. Inc. (individually, an "Agent" and
collectively, the "Agents," which term shall
include any additional agents appointed pursuant to Section 12 hereof) as its
agents, for the purpose of soliciting and receiving offers to purchase Notes
from the Company by others and, on the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees to use reasonable efforts to solicit and receive offers
to purchase Notes upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify. In addition, any Agent
may also purchase Notes as principal and, if requested by such Agent, the
Company will enter into a Terms Agreement relating to such sale (a "Terms
Agreement") in accordance with the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Registration No. 333-40405), including a
prospectus, relating to the offer and sale of $400,000,000 aggregate principal
amount of the Company's debt securities (including the Notes), which
registration statement has been declared effective. Such registration
statement, including the exhibits thereto, as amended at the Commencement Date
(as hereinafter defined), is hereinafter referred to as the "Registration
Statement." The Company proposes to file with the Commission from time to time,
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), supplements to the prospectus included in the Registration
Statement that will describe certain terms of the Notes. The prospectus in the
form in which it appears in the Registration Statement is hereinafter referred
to as the "Basic Prospectus." The term "Prospectus" means the Basic Prospectus
together with the prospectus supplement or supplements (each a "Prospectus
Supplement") specifically relating to Notes, as filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the Securities Act. As
used herein, the terms "Registration Statement," "Basic Prospectus" and
"Prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
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The term "Subsidiary" as used herein shall mean any corporation the
outstanding securities of which having ordinary voting power to elect a majority
of the board of directors of such corporation (whether or not any other class of
securities has or might have voting power by reason of the happening of a
contingency) are at the time owned or controlled directly or indirectly by the
Company or one or more Subsidiaries or by the Company and one or more
Subsidiaries. The term "Significant Subsidiary" shall be used herein as such
term is defined in Rule 1-02 of Regulation S-X.
1. Representations and Warranties. The Company makes the following
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representations and warranties and agrees with each Agent (it being understood
that such representations, warranties and agreements shall be deemed to relate
to the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date) (i) as of the Commencement Date, (ii)
as of each date on which an Agent solicits offers to purchase Notes, (iii) as of
each date on which the Company accepts an offer to purchase Notes (including any
purchase by an Agent as principal, pursuant to a Terms Agreement or otherwise),
each such date referred to herein as a "Trade Date," (iv) as of each date the
Company issues and delivers Notes and (v) as of each date the Registration
Statement or the Basic Prospectus is amended or supplemented:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or to the Company's knowledge
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, will not contain,
any 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, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply, in all material
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respects with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that (1) the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to an Agent
furnished to the Company in writing by such Agent expressly for use therein or
(B) to that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), of the Trustee and (2) the
representations and warranties set forth in clauses (iii) and (iv) above, when
made as of the Commencement Date or as of any date on which an Agent solicits
offers to purchase Notes or on which the Company accepts an offer to purchase
Notes, shall be deemed not to cover information concerning the terms of an
offering of particular Notes to the extent such information will be set forth in
a supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the financial condition of the Company and its
Subsidiaries, taken as a whole.
(d) The Company has no Significant Subsidiaries.
(e) Kirin-Amgen, Inc. has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each
4
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect
on the financial condition of the Company and its Subsidiaries, taken as a
whole.
(f) Each of this Agreement and any applicable Terms Agreement has
been duly authorized, executed and delivered by the Company.
(g) The Indenture has been duly authorized, executed and delivered by
the Company and (assuming the due execution and delivery thereof by the Trustee
thereunder) is a valid and binding agreement of the Company, enforceable in
accordance with its terms except (i) to the extent that a waiver of rights under
any usury laws may be unenforceable and as the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to or affecting the enforcement
of creditors' rights and remedies generally and (ii) as rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability, whether or not enforcement is sought at law
or in equity.
(h) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the purchasers thereof in accordance with this Agreement or
any applicable Terms Agreement, will be entitled to the benefits of the
Indenture and will be valid and legally binding obligations of the Company,
enforceable in accordance with their terms except (i) to the extent that a
waiver of rights under any usury laws may be unenforceable and as the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect relating
to or affecting the enforcement of creditors' rights and remedies generally and
(ii) as rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability, whether or not
enforcement is sought at law or in equity.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture, the
Notes and
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any applicable Terms Agreement (A) will not contravene any provision of (i) the
certificate of incorporation or by-laws of the Company, (ii) any agreement or
other instrument binding upon the Company, any of its Subsidiaries, Kirin-Amgen,
Inc. or their respective business or assets that is material to the financial
condition of the Company and its Subsidiaries, taken as a whole, (iii)
applicable law and (iv) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company, any of its Subsidiaries,
Kirin-Amgen, Inc. or their respective business or assets, in each case except to
the extent that any such contravention would not have a material adverse effect
on the financial condition of the Company and its Subsidiaries, taken as a
whole, and (B) no consent, approval, authorization or order of or qualification
with any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture, the Notes or any
applicable Terms Agreement except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale of the
Notes.
(j) There has not been any material adverse change or any prospective
material adverse change in the financial condition or in the earnings of the
Company and its Subsidiaries, taken as a whole, except as set forth or described
in the Prospectus.
(k) There are no legal or governmental proceedings pending or to the
Company's knowledge threatened to which the Company or any of its Subsidiaries
or Kirin-Amgen, Inc. is a party or to which any of their respective properties
is subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any contracts or other documents that
are required to be filed as exhibits to the Registration Statement that are not
filed as required.
(l) Each of the Company, its Subsidiaries and Kirin-Amgen, Inc. has
all necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and use
its properties and assets and to conduct its business in the manner described in
the Prospectus, except to the extent that the failure to
6
obtain or file would not have a material adverse effect on the financial
condition of the Company and its Subsidiaries, taken as a whole.
(m) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(n) To the Company's knowledge, each of the Company, its Subsidiaries
and Kirin-Amgen, Inc. owns or possesses, or can acquire on reasonable terms, all
patents, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names which are
currently employed by them in connection with the business now operated by them
and which, in each case, are material to the financial condition of the Company
and its Subsidiaries, taken as a whole, and, except as described in the
Registration Statement or the Prospectus, neither the Company nor Kirin-Amgen,
Inc. has received any notice of infringement with respect to any of the
foregoing which, singly or in the aggregate, would reasonably likely result in
any material adverse change in the financial condition of the Company and its
Subsidiaries, taken as a whole.
(o) Neither the Company, any of its Subsidiaries nor Kirin-Amgen,
Inc. is in violation of any federal or state law or regulation relating to
occupational safety and health or to the storage, handling or transportation of
hazardous or toxic materials and each of the Company, its Subsidiaries and
Kirin-Amgen, Inc. has received all permits, licenses or other approvals required
of them under applicable federal and state occupational safety and health and
environmental laws and regulations to conduct their respective businesses, and
each of the Company, its Subsidiaries and Kirin-Amgen, Inc. is in compliance
with all terms and conditions of any such permit, license or approval, except
any such violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals which would not, singly or in the
aggregate, result in a material adverse change in the financial condition of the
Company and its Subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus.
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2. Solicitations as Agent; Purchases as Principal.
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(a) Solicitations as Agent. In connection with an Agent's actions as
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agent hereunder, such Agent agrees to use reasonable best efforts to solicit
offers to purchase Notes upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of notice from the
Company, the Agents will forthwith suspend solicitations of offers to purchase
Notes from the Company until such time as the Company has advised the Agents
that such solicitation may be resumed. While such solicitation is suspended,
the Company shall not be required to deliver any certificates, opinions or
letters in accordance with Sections 5(a), 5(b) and 5(c) hereof; provided,
--------
however, that if the Registration Statement or Prospectus is amended or
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supplemented during the period of suspension (other than by an amendment or
supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Notes or for a
change the Agents deem to be immaterial), no Agent shall be required to resume
soliciting offers to purchase Notes until the Company has delivered such
certificates, opinions and letters as such Agent may request.
The Company agrees to pay to each Agent, as consideration for the sale of
each Note resulting from a solicitation made or an offer to purchase received by
such Agent, a commission in the form of a discount from the purchase price of
such Note equal to the percentage set forth below of the purchase price of such
Note:
Term Commission Rate
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From 9 months to less than l year .125%
From l year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
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From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to less than 30 years .750%
From 30 years and beyond To be determined at time of issuance.
Each Agent shall communicate to the Company, orally or in writing, each
offer to purchase Notes received by such Agent as agent that in its judgment
should be considered by the Company. The Company shall have the sole right to
accept offers to purchase Notes and may reject any offer in whole or in part,
and any such rejection shall not be deemed a breach of its agreements contained
herein. Each Agent shall have the right to reject any offer to purchase Notes
that it considers to be unacceptable, and any such rejection shall not be deemed
a breach of its agreements contained herein. The procedural details relating to
the issue and delivery of Notes sold by the Agents as agents and the payment
therefor shall be as set forth in the Administrative Procedures (as hereinafter
defined).
(b) Purchases as Principal. Each sale of Notes to an Agent as
----------------------
principal shall be made in accordance with the terms of this Agreement and, if
requested by such Agent, the Company will enter into a Terms Agreement that will
provide for the sale of such Notes to and the purchase thereof by such Agent.
Each Terms Agreement will be substantially in the form of Exhibit A hereto but
may take the form of an exchange of any form of written telecommunication
between such Agent and the Company.
An Agent's commitment to purchase Notes as principal, whether pursuant to a
Terms Agreement or otherwise, shall be deemed to have been made on the basis of
the representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each agreement by an
Agent to purchase Notes as principal (whether or not set forth in a Terms
Agreement) shall specify the principal amount of Notes to be purchased by such
Agent pursuant thereto, the maturity date of such Notes, the price to be paid to
the Company for such Notes, the interest rate and interest rate formula, if any,
applicable to such Notes and any other terms of such Notes. Each such agreement
shall also specify the requirements, if any, for officers' certificates,
opinions of counsel and letters from the
9
independent public accountants of the Company set forth in Section 4 hereof.
Each Terms Agreement shall specify the time and place of delivery of and
payment for such Notes. Unless otherwise specified in a Terms Agreement, the
procedural details relating to the issue and delivery of Notes purchased by an
Agent as principal and the payment therefor shall be as set forth in the
Administrative Procedures. Each date of delivery of and payment for Notes to be
purchased by an Agent as principal, whether pursuant to a Terms Agreement or
otherwise, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Terms Agreement, an Agent purchasing Notes
as principal may resell such Notes to other dealers. Any such sales shall be at
a discount, which shall not be in excess of (i) the amount set forth in the
Prospectus, as amended or supplemented in connection with the sale of such
Notes, or (ii) 66-2/3% of the discount to be received by such Agent from the
Company.
(c) Administrative Procedures. The Agents and the Company agree to
-------------------------
perform the respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (attached hereto as
Exhibit B) (the "Administrative Procedures"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of the
Company and the Agents.
(d) Delivery. The documents required to be delivered by Section 4 of
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this Agreement as a condition precedent to the Agents' obligations to begin
soliciting offers to purchase Notes as agents of the Company shall be delivered
at the Los Angeles office of Skadden, Arps, Slate, Meagher & Flom LLP, counsel
for the Agents, not later than 11:00 a.m., Los Angeles time, on the date hereof,
or at such other time and/or place as the Agents and the Company may agree upon
in writing, but in no event later than the day prior to the earlier of (i) the
date on which the Agents begin soliciting offers to purchase Notes and (ii) the
first date on which the Company accepts any offer by an Agent to purchase Notes
as principal. The date of delivery of such documents is referred to herein as
the "Commencement Date."
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(e) Obligations Several. The Company acknowledges that the
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obligations of the Agents under this Agreement are several and not joint.
3. Agreements. The Company agrees with each Agent that:
----------
(a) Prior to the termination of the offering of the Notes pursuant to
this Agreement or any Terms Agreement, the Company will not file any Prospectus
Supplement relating to the Notes or make any amendment or supplement to the
Registration Statement or the Prospectus unless the Company has previously
furnished to the Agents copies thereof for their review and will not file any
such proposed supplement or amendment to which the Agents reasonably object;
provided, however, that (i) the foregoing requirement shall not apply to any of
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the Company's periodic filings with the Commission required to be filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which
filings the Company will cause to be delivered to the Agents promptly after
being transmitted for filing with the Commission and (ii) any Prospectus
Supplement that merely sets forth the terms or a description of particular Notes
shall only be reviewed and approved by the Agent or Agents offering such Notes.
Subject to the foregoing sentence, the Company will promptly cause each
Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act. The Company
will promptly advise the Agents (i) of the filing of any amendment or supplement
to the Basic Prospectus (except that notice of the filing of an amendment or
supplement to the Basic Prospectus that merely sets forth the terms or a
description of particular Notes shall only be given to the Agent or Agents
offering such Notes), (ii) of the filing and effectiveness of any amendment to
the Registration Statement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Basic Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order or
11
notice of suspension of qualification and, if issued, to obtain as soon as
possible the withdrawal thereof. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any document
incorporated by reference in the Prospectus, no Agent shall be obligated to
solicit offers to purchase Notes so long as it is not reasonably satisfied with
such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or condition
exists 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 to make the statements therein, in the light of the
circumstances when the Prospectus, as then amended or supplemented, is delivered
to a purchaser, not misleading, or if, in the opinion of the Agents (verified by
a written opinion of independent counsel) or in the opinion of the Company, it
is necessary at any time to amend or supplement the Prospectus, as then amended
or supplemented, to comply with applicable law, the Company will immediately
notify the Agents by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Notes and, if so notified by the Company, the
Agents shall forthwith suspend such solicitation and cease using the Prospectus,
as then amended or supplemented. If the Company shall decide to amend or
supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise the Agents promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to the Agents, that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to the Agents in such quantities as they may reasonably request. If
any documents, certificates, opinions and letters furnished to the Agents
pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) in connection
with the preparation and filing of such amendment or supplement are satisfactory
in all respects to the Agents, upon the filing with the Commission of such
amendment or supplement to the Prospectus or upon the effectiveness of an
amendment to the Registration Statement, the Agents will resume the solicitation
of offers to purchase Notes hereunder. Notwithstanding any other provision of
this Section
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3(b), until the distribution of any Notes an Agent may own as principal has been
completed, if any event described above in this paragraph (b) occurs, the
Company will, at its own expense, forthwith prepare and cause to be filed
promptly with the Commission an amendment or supplement to the Registration
Statement or Prospectus, as then amended or supplemented, satisfactory in all
respects to such Agent, will supply such amended or supplemented Prospectus to
such Agent in such quantities as it may reasonably request and shall furnish to
such Agent pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) such
documents, certificates, opinions and letters as it may request in connection
with the preparation and filing of such amendment or supplement.
(c) The Company will make generally available to its security holders
and to the Agents as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering twelve-month periods beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the Securities Act)
of the Registration Statement with respect to each sale of Notes. If such
fiscal quarter is the last fiscal quarter of the Company's fiscal year, such
earning statement shall be made available not later than 90 days after the close
of the period covered thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, a
conformed copy of the Registration Statement, including all exhibits and
amendments thereto, and as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
such Agent may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to maintain such qualifications for as long as the Agents
shall reasonably request.
(f) During the term of this Agreement, the Company shall furnish to
the Agents such relevant documents and certificates of officers of the Company
relating to the
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business, operations and affairs of the Company, the Registration Statement, the
Basic Prospectus, any amendments or supplements thereto, the Indenture, the
Notes, this Agreement, the Administrative Procedures, any Terms Agreement and
the performance by the Company of its obligations hereunder or thereunder as the
Agents may from time to time reasonably request; provided, that the Company
--------
shall not be required to deliver any such relevant documents or certificates
during any period of time in which there are no Notes outstanding; provided,
--------
further, with respect to any issuance of Notes where immediately prior to such
- -------
issuance no Notes were outstanding, the Company will deliver any such relevant
documents or certificates reasonably requested by such Agent on or prior to the
Trade Date thereof (or such later date such Agent shall agree to, but in no
event later than the Business Day prior to the relevant Settlement Date, or the
date on which Notes sold through an Agent are to be delivered, as the case may
be) which relevant documents and certificates shall be dated as of the date they
are delivered. The term "Business Day" as used herein has the meaning assigned
to it in the Indenture.
(g) During the term of this Agreement, the Company shall notify the
Agents promptly in writing of any downgrading, or of its receipt of any notice
of any intended or potential downgrading or of any review for possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation,
printing (or reproduction) and filing with the Commission of the Registration
Statement and the Prospectus and all amendments and supplements thereto, (ii)
the preparation, issuance and delivery of the Notes, (iii) the fees and
disbursements of the Company's counsel and accountants and of the Trustee and
its counsel, (iv) the qualification of the Notes under securities or Blue Sky
laws in accordance with the provisions of Section 3(e), including filing fees
and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Memoranda, (v) the printing and delivery to
14
the Agents in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Basic Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to the Agents
of copies of the Indenture and any Blue Sky Memoranda, (vii) any fees charged by
rating agencies for the rating of the Notes, (viii) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc., (ix) the fees and disbursements of counsel for the
Agents incurred in connection with the offering and sale of the Notes, including
any opinions to be rendered by such counsel hereunder, and (x) any reasonable
out-of-pocket expenses incurred by the Agents; provided that any advertising
--------
expenses incurred by the Agents shall have been approved by the Company.
(i) Between the date of any agreement by an Agent to purchase Notes
as principal and the Settlement Date with respect to such agreement, the Company
will not, without such Agent's prior consent, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially similar to
such Notes (other than (i) the Notes that are to be sold pursuant to such
agreement, (ii) Notes previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of business), except as may
otherwise be provided in such agreement.
4. Conditions of the Obligations of the Agents. Each Agent's obligation to
-------------------------------------------
solicit offers to purchase Notes as agent of the Company, each Agent's
obligation to purchase Notes as principal pursuant to any Terms Agreement or
otherwise and the obligation of any other purchaser to purchase Notes in each
case will be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company herein, to the
accuracy in all material respects of the statements of the Company's officers
made in each certificate furnished pursuant to the provisions hereof and to the
performance and observance in all material respects by the Company of all
covenants and agreements herein contained on its part to be performed and
observed (in the case of an Agent's obligation to solicit offers to purchase
Notes, at the time of such solicitation, and, in the case of an Agent's or any
other purchaser's obligation to purchase Notes, at the time the Company accepts
the offer to purchase such Notes and at the time of
15
purchase) and (in each case) to the following additional conditions precedent
when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and
its Subsidiaries, taken as a whole, from that set forth in the Prospectus,
as amended or supplemented at the time of such solicitation or at the time
such offer to purchase was made, that, in the judgment of the relevant
Agent, is material and adverse and that makes it, in the judgment of such
Agent, impracticable to market the Notes on the terms and in the manner
contemplated by the Prospectus, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be, the
New York Stock Exchange, the American Stock Exchange or the National
Association of Securities Dealers, Inc., (B) suspension of trading of any
securities of the Company on any exchange or in any over-the-counter
market, (C) declaration of a general moratorium on commercial banking
activities in New York by either Federal or New York State authorities or
(D) any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the relevant
Agent, is material and adverse and, in the case of any of the events
described in clauses (ii)(A) through (D), such event, singly or together
with any other such event, makes it, in the judgment of such Agent,
impracticable to market the Notes on the terms and in the manner
contemplated by the Prospectus, as amended or supplemented at the time of
such solicitation or at the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have
16
been given of any intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to the relevant Agent in writing by the Company prior to such
solicitation or, in the case of a purchase of Notes, as disclosed to the
relevant Agent before the offer to purchase such Notes was made or (B) unless in
each case described in (ii) above, the relevant event shall have occurred and
been known to the relevant Agent before such solicitation or, in the case of a
purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any agreement by
an Agent to purchase Notes as principal, on the corresponding Settlement Date,
the relevant Agents shall have received:
(i) The opinion, dated as of such date, of counsel for the
Company (who may be an employee of the Company) to the effect set forth in
Exhibit C.
(ii) The opinion, dated as of such date, of Latham & Watkins,
special counsel for the Company, to the effect set forth in Exhibit D.
(iii) The opinion, dated as of such date, of Skadden, Arps,
Slate, Meagher & Flom LLP, counsel for the Agents, to the effect set forth
in Exhibit E.
(c) On the Commencement Date and, if called for by any agreement by
an Agent to purchase Notes as principal, on the corresponding Settlement Date,
the relevant Agents shall have received a certificate, dated such Commencement
Date or Settlement Date, as the case may be, signed by an executive officer of
the Company to the effect set forth in sub-paragraph (a)(iii) above and to the
effect that the representations and warranties of the Company
17
contained herein are true and correct in all material respects as of such date
and that the Company has complied in all material respects with all of the
agreements and satisfied in all material respects all of the conditions on its
part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any agreement by
an Agent to purchase Notes as principal, on the corresponding Settlement Date,
the Company's independent public accountants shall have furnished to the
relevant Agents a letter or letters, dated as of the Commencement Date or such
Settlement Date, as the case may be, in form and substance satisfactory to such
Agents containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the Company
shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company.
------------------------------------
(a) Each time the Registration Statement or Prospectus is amended or
supplemented (other than by (i) a pricing supplement to the Prospectus setting
forth the purchase price, interest rate, maturity date and other terms of Notes
(a "Pricing Supplement") or an amendment or other supplement providing solely
for a change in the interest rates of the Notes or changes in other terms of the
Notes or for a change the Agents deem (after reasonable advance notice and
opportunity for review) to be immaterial, or (ii) an amendment or supplement
which relates exclusively to an offering of securities other than the Notes),
the Company will deliver or cause to be delivered promptly to each Agent a
certificate signed by an executive officer of the Company, dated the date of
such amendment or supplement, as the case may be, in form reasonably
satisfactory to the Agents, of the same tenor as the certificate referred to in
Section 4(c) relating to the Registration Statement or the Prospec-
18
tus as amended or supplemented to the time of delivery of such certificate;
provided, that the Company shall not be required to deliver any such certificate
- --------
during any period of time in which there are no Notes outstanding; provided,
--------
further, with respect to any issuance of Notes where immediately prior to such
- -------
issuance no Notes were outstanding, the Company will deliver such certificates
to the Agents on or prior to the Trade Date thereof (or such later date the
relevant Agent shall agree to, but in no event later than the Business Day prior
to the relevant Settlement Date or the date on which Notes sold through such
Agent are to be delivered, as the case may be), which certificates shall be
dated as of the date it is delivered.
(b) Each time the Registration Statement or Prospectus is amended or
supplemented (other than by (i) a Pricing Supplement or an amendment or other
supplement providing solely for a change in the interest rates of the Notes or
changes in other terms of the Notes or for a change the Agents deem (after
reasonable advance notice and opportunity for review) to be immaterial, (ii) an
amendment or supplement providing solely for the inclusion of additional
financial information, (iii) an amendment or supplement which relates
exclusively to an offering or securities other than the Notes or (iv) the
incorporation by reference of the Annual Report on Form 10-K, Current Report on
Form 8-K or Quarterly Report on Form 10-Q as of and for any fiscal quarter), the
Company will furnish or cause to be furnished promptly to each Agent a written
opinion of counsel for the Company and a written opinion of special counsel for
the Company. Any such opinion (other than an opinion dated in accordance with
the second proviso of Section 5(a)) shall be dated the date of such amendment or
supplement, as the case may be, shall be in a form satisfactory to the Agents
and shall be of the same tenor as the opinion referred to in Section 4(b)(i) or
Section 4(b)(ii), as applicable, but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such opinion. In lieu of such opinion, counsel last furnishing any such
opinion to an Agent may furnish to each Agent a letter to the effect that such
Agent may rely on such last opinion to the same extent as though it were dated
the date of such letter (except that statements in such last opinion will be
deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented to the time of delivery of such letter.) The Company shall furnish
to each Agent, promptly following each filing by the Company
19
of a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K a written
opinion of counsel for the Company dated the date of such filing in a form
satisfactory to such Agents and which shall be of the same tenor as
subparagraphs (iv) and (v)(a) and the next to the last paragraph in Exhibit C.
(c) Each time the Registration Statement or the Prospectus is amended
or supplemented to set forth amended or supplemental financial information, the
Company shall cause its independent public accountants promptly to furnish each
Agent with a letter, dated the date of such amendment or supplement, as the case
may be, in form satisfactory to the Agents, of the same tenor as the letter
referred to in Section 4(d), with regard to the amended or supplemental
financial information included or incorporated by reference in the Registration
Statement or the Prospectus as amended or supplemented to the date of such
letter; provided, that the Company shall not be required to deliver such letter
--------
during any period of time in which there are no Notes outstanding; provided,
--------
further, with respect to any issuance of Notes where immediately prior to such
- -------
issuance no Notes were outstanding, the Company shall cause its independent
public accountants to deliver such letter to the Agents on or prior to the Trade
Date thereof (or such later date the relevant Agent shall agree to, but in no
event later than the Business Day prior to the relevant Settlement Date or the
date on which Notes sold through such Agent are to be delivered, as the case may
be), which letter shall be dated as of the date it is delivered; provided,
--------
further, that if the Registration Statement or the Prospectus is amended or
- -------
supplemented primarily to include financial information as of and for a fiscal
quarter, the Company's independent certified public accountants may limit the
scope of such letter to the unaudited financial statements included in such
amendment or supplement.
6. Indemnification and Contribution.
--------------------------------
(a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which such
Agent may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the
20
Prospectus or any other prospectus (including any preliminary prospectus)
relating to the Notes, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse such Agent for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
-------- -------
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus or any other prospectus (including any
preliminary prospectus) relating to the Notes, or in any such amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use in the Prospectus as
amended or supplemented.
(b) Each Agent will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus or any other prospectus
(including any preliminary prospectus) relating to the Notes, 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 the Registration
Statement, the Prospectus or any other prospectus (including any preliminary
prospectus) relating to the Notes, or any such amendment or supplement thereto,
in reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use in the Prospectus as amended or
supplemented; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
21
(c) Promptly after receipt by an indemnified party under paragraph
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it of its obligations (i) under paragraph
(a) or (b), as applicable, of this Section 6 unless and only to the extent that
the indemnifying party is materially prejudiced by the failure to notify, or
(ii) from any liability which it may have to any indemnified party otherwise
than under such applicable subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, and retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (1) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (2) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would, in the written opinion
of legal counsel to the indemnified party, be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Goldman Sachs or, if
Goldman Sachs is not an indemnified party and is not reasonably likely to become
an indemnified party, by the Agents that are indemnified parties, in the case of
parties indemnified pursuant to paragraph (a) above, and by the Company, in the
case of parties indemnified pursuant to paragraph (b)
22
above. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (I) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (II) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Notes to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Notes (before deducting
expenses) received by the Company bear to the total commissions and discounts
received by such Agent in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements
23
therein not misleading relates to information supplied by the Company on the one
hand or by any Agent on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and each Agent agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
---
rata allocation (even if all Agents were treated as one entity for such purpose)
- ----
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection
(d), an Agent shall not be required to contribute any amount in excess of the
amount by which the total price at which the Notes referred to in paragraph (d)
above that were offered and sold to the public through such Agent exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this subsection (d) to contribute are
several in proportion to the respective purchases made by or through each such
Agent to which such loss, claim, damage or liability (or action in respect
thereof) relates and are not joint.
(e) The obligations of the Company under this Section 6 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
Agent within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act; and the obligations of each Agent under this Section 6 shall
be in addition to any liability which such Agent may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act.
24
7. Position of the Agents. In acting under this Agreement and in
----------------------
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent as principal), each Agent is acting solely as agent of the Company and
not as principal and does not assume any obligation towards or relationship of
agency or trust with any purchaser of Notes. An Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company, but such Agent shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Notes to a purchaser whose offer it has
accepted, the Company shall hold the relevant Agent harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to such Agent the commission it would have received
had such sale been consummated.
8. Termination. This Agreement may be terminated at any time by the
-----------
Company or, as to any Agent, by the Company or such Agent upon the giving of
written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. The termination of this Agreement shall
not require termination of any agreement by an Agent to purchase Notes as
principal, and the termination of any such agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), Section 2(e), Sections 3(b), 3(c), 3(h),
6, 7, 9, 11 and 14 shall survive; provided that if at the time of termination an
--------
offer to purchase Notes has been accepted by the Company but the time of
delivery to the purchaser or its agent of such Notes has not occurred, the
provisions of Sections 2(b), 2(c), 3(a), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall
also survive until such delivery has been made.
9. Representations and Indemnities to Survive. The respective
------------------------------------------
indemnity and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Notes as
principal will remain in full force and effect, regardless of any termination of
this Agreement or any such agreement, any investigation made by or on behalf of
an
25
Agent or the Company or any of the officers, directors or controlling persons
referred to in Section 6 and delivery of and payment for the Notes.
10. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Agents, will be mailed, delivered
or telecopied and confirmed to Goldman Sachs at 85 Broad Street, New York, New
York 10004, Attention: Credit Department (telecopier number: 212-363-7609), and
to Bear, Stearns & Co. Inc., 245 Park Avenue, New York, New York 10167,
Attention: Medium-Term Note Desk (telecopier number: (212) 272-6227, or, if sent
to the Company, will be mailed, delivered or telecopied and confirmed to the
Company at Amgen Inc., 1840 Dehavilland Drive, Thousand Oaks, California 91320-
1789 (telephone number 805-447-1000), Attention: Treasurer, (telecopier number:
(805) 499-7690) with a copy to General Counsel (telecopier number: (805) 499-
8011).
11. Successors. This Agreement and any Terms Agreement will inure to
----------
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
12. Amendments. This Agreement may be amended or supplemented if,
----------
but only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, on
--------
prior notice (which may be oral if promptly confirmed in writing) to the Agents
but without the consent of any Agent, amend this Agreement to add as a party
hereto one or more additional firms registered under the Exchange Act, whereupon
each such firm shall become an Agent hereunder on the same terms and conditions
as the other Agents that are parties hereto. The Agents shall sign any
amendment or supplement giving effect to the addition of any such firm as an
Agent under this Agreement.
13. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
26
14. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have
--------
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
27
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
AMGEN INC.
By: /s/ Robert S. Attiyeh
---------------------------------
Name: Robert S. Attiyeh
Title: Senior Vice President,
Finance and Corporate
Development
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
/s/ Goldman, Sachs & Co.
- ----------------------------------------
(GOLDMAN, SACHS & CO.)
BEAR, STEARNS & CO. INC.
By: /s/ Timothy A. O'Neill
------------------------------------
Name Timothy A. O'Neill
Title: Senior Managing Director
AMGEN INC.
MEDIUM-TERM NOTES
TERMS AGREEMENT
_________, 199_
Amgen Inc.
1840 Dehavilland Drive
Thousand Oaks, California 91320-1789
Attention:
Re: Distribution Agreement dated ______________,
1997 (the "Distribution Agreement")
-------------------------------------------
We agree to purchase your Medium-Term Notes having the following
terms:
[We agree to purchase, severally and not jointly, the principal amount
of Notes set forth below opposite our names:
Principal Amount
Name of Notes
- ---- ----------------
[Goldman, Sachs & Co.]
[Bear, Stearns & Co. Inc.]
Total . . . $
===============
The Notes shall have the following terms:]*
- -------------------
* Delete if the transaction will not be syndicated.
A-1
All Notes: Fixed Rate Notes: Floating Rate Notes:
- --------- ---------------- -------------------
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability of Index maturity:
modified payment
upon acceleration:
Price to public: Spread:
Settlement date If yes, state Spread multiplier:
and time: issue price:
Place of delivery: Amortization Alternate rate
schedule: event spread:
Specified Initial interest
currency: rate:
Maturity date: Initial interest
reset date:
Initial accrual Interest reset
period OID: dates:
Total amount Interest reset
of OID: period:
Original yield Maximum interest
to maturity: rate:
Optional repayment Minimum interest
date(s): rate:
Optional redemption Interest payment
date(s): period:
Initial redemption Interest payment
date: dates:
Initial redemption Calculation agent:
percentage:
Annual redemption
percentage
decrease:
Other terms:
A-2
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6, 9, 10, 11
and 14 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
[If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as ____________may specify, to purchase the Notes which such
defaulting Agent or Agents agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Notes that any Agent has
--------
agreed to purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes without
the written consent of such Agent. If on the Settlement Date any Agent or
Agents shall fail or refuse to purchase Notes and the aggregate amount of Notes
with respect to which such default occurs is more than one-tenth of the
aggregate amount of Notes to be purchased on such date, and arrangements
satisfactory to ____________ and the Company for the purchase of such Notes are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Agent or the Company. In
any such case either __________ or the Company shall have the right to postpone
the Settlement Date but in no event for longer than seven days, in order that
the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Agent from
liability in respect of any default of such Agent under this Agreement.]*
- ----------------
* Delete if the transaction will not be syndicated.
A-3
This Agreement is subject to termination on the terms incorporated by
reference herein. If this Agreement is so terminated, the provisions of
Sections 3(h), 6, 9, 11 and 14 of the Distribution Agreement shall survive for
the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Distribution Agreement will be
required:
[NAME(S) OF RELEVANT AGENT(S)]
By: __________________________
Title:
Accepted:
AMGEN INC.
By: ________________________
Title:
A-4
Exhibit B
AMGEN INC.
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
- --------------------------------------------------------------------------------
Explained below are the administrative procedures and specific terms
of the offering of Medium-Term Notes (the "Notes"), on a continuous basis by
Amgen Inc. (the "Company") pursuant to the Distribution Agreement, dated as of
December 5, 1997 (the "Distribution Agreement") among the Company and Goldman,
Sachs & Co. and Bear, Stearns & Co. Inc. (individually, an "Agent" and
collectively, the "Agents"). The Notes will be issued pursuant to the
provisions of an Indenture dated as of January 1, 1992, as supplemented by a
First Supplemental Indenture dated as of February 26, 1997 (as so supplemented,
the "Indenture"), between the Company and Citibank, N.A., as Trustee (the
"Trustee"). In the Distribution Agreement, each Agent has agreed to use
reasonable efforts to solicit purchases of the Notes, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
sold through an Agent, as agent of the Company. An Agent, as principal, may
also purchase Notes for its own account, and if requested by such Agent, the
Company and such Agent will enter into a terms agreement (a "Terms Agreement"),
as contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes purchased
by an Agent, as principal, unless otherwise specified in the applicable Terms
Agreement.
The Trustee will be the Registrar, Calculation Agent (unless otherwise
specified in the applicable Pricing Supplement), Exchange Rate Agent (if
specified in the Pricing Supplement), Authenticating Agent and Paying Agent for
the Notes and will perform the duties specified herein. Each Note will be
represented by either a Global Security (as defined below) delivered to the
Trustee, as agent for The Depository Trust Company ("DTC"), and recorded in the
B-1
book-entry system maintained by DTC (a "Book-Entry Note") or a certificate
delivered to the holder thereof or a person designated by such holder (a
"Certificated Note"). Except as set forth in the Indenture, an owner of a Book-
Entry Note will not be entitled to receive a Certificated Note.
Book-Entry Notes, which may be payable only in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC'S
operating procedures. Certificated Notes will be issued in accordance with the
administrative procedures set forth in Part II hereof. Unless otherwise defined
herein, terms defined in the Indenture, the Notes or any Prospectus Supplement
relating to the Notes shall be used herein as therein defined.
The Company will advise the Agents in writing of the employees of the
Company with whom the Agents are to communicate regarding offers to purchase
Notes and the related settlement details.
Any term used herein and not otherwise defined shall have the meaning
assigned to it in the Distribution Agreement.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and the Trustee to DTC, dated as of January 16, 1992 (the
"Letter of Representations"), and a Medium-Term Note Certificate Agreement
between Citibank, N.A., as custodian and DTC, dated as of October 31, 1988, as
amended by the Amendment to Certificate Agreement dated as of December 5, 1997,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue one or more
B-2
global securities in fully registered form without
coupons (each a "Global Security") representing up to
U.S. $400,000,000 principal amount of all such Notes
that have the same Original Issue Date, Maturity Date
and other terms. Each Global Security will be dated and
issued as of the date of its authentication by the
Trustee. Each Global Security will bear an "Interest
Accrual Date," which will be (i) with respect to an
original Global Security (or any portion thereof), its
original issuance date and (ii) with respect to any
Global Security issued subsequently upon exchange of a
Global Security in lieu of a destroyed, lost or stolen
Global Security, or following a consolidation of Global
Securities, the most recent Interest Payment Date to
which interest has been paid or duly provided for on
the predecessor Global Security or Securities (or if no
such payment or provision has been made, the original
issuance date of the predecessor Global Security),
regardless of the date of authentication of such
subsequently issued Global Security. Book-Entry Notes
may be payable only in U.S. dollars. No Global Security
will represent any Certificated Note.
Denominations: Book-Entry Notes will be issued in principal amounts of
U.S. $100,000 or any amount in excess thereof that is
an integral multiple of U.S. $1,000. Global Securities
will be denominated in principal amounts not in excess
of U.S. $200,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess of U.S.
$200,000,000 would, but for the
B-3
preceding sentence, be represented by a single Global
Security, then one Global Security will be
authenticated and issued to represent each U.S.
$200,000,000 principal amount of such Book-Entry Note
or Notes and an additional Global Security will be
issued to represent any remaining principal amount of
such Book-Entry Note or Notes. In such a case, each of
the Global Securities representing such Book-Entry Note
or Notes shall be assigned the same CUSIP number.
CUSIP Numbers: The Company has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of a series of CUSIP
numbers (including tranche numbers) of which series
consists of approximately 900 CUSIP numbers and relates
to Global Securities representing the Book-Entry Notes.
The Company has obtained from the CUSIP Service Bureau
a written list of such reserved CUSIP numbers and has
delivered such list to the trustee and DTC. The Trustee
will assign CUSIP numbers to Global securities as
described below under Settlement Procedure "B". DTC
will notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Trustee has assigned to
Global Securities. At any time when fewer than 100 of
the reserved CUSIP numbers remain unassigned to Global
Securities, the Trustee shall so advise the Company
and, if it deems necessary, the Company will reserve an
additional 900 CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the Company
shall
B-4
deliver a list of such additional CUSIP numbers
to the Trustee and DTC.
Registration: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the Security
register maintained under the Indenture. The beneficial
owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect
to such Note, the "Participants") to act as agent or
agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in book-
entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to
such Note in the account of such Participants. The
ownership interest of such beneficial owner in such
Note will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in
DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants
(and, in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial
transferors and transferees of such Note.
Exchanges: The Trustee may, upon notice to the Company, deliver to
DTC and the CUSIP Service Bureau at any time a written
notice of consolidation (a copy of which shall be
attached to the Global Security resulting from such
consolidation) specifying (i)
B-5
the CUSIP numbers of two or more outstanding Global
Securities that represent Book-Entry Notes having the
same Terms, and for which interest has been paid to the
same date, (ii) a date, occurring at least thirty days
after such written notice is delivered and at least
thirty days before the next Interest Payment Date for
such Book-Entry Notes, on which such Global Securities
shall be exchanged for a single replacement Global
Security and (iii) a new CUSIP number to be assigned to
such replacement Global Security. Upon receipt of such
a notice, DTC will send to its Participants (including
the Trustee) a written reorganization notice to the
effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee will
deliver to the CUSIP Service Bureau a written notice
setting forth such exchange date and the new CUSIP
number and stating that, as of such exchange date, the
CUSIP numbers of the Global Securities to be exchanged
will no longer be valid. On the specified exchange
date, the Trustee will exchange such Global Securities
for a single Global Security bearing the new CUSIP
number and a new Interest Accrual Date and the CUSIP
numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Securities
to be exchanged exceed $200,000,000 in aggregate
principal amount, one Global Security will be
authenticated and issued to represent each $200,000,000
principal amount of
B-6
the exchanged Global Security and an additional Global
Security will be authenticated and issued to represent
any remaining principal amount of such Global
Securities (see "Denominations" above).
Maturities: Each Book-Entry Note will mature on a date more than
nine months after the settlement date for such Note.
Notice of Redemption The Trustee will give notice to DTC prior to each
or Repayment Dates: redemption or repayment date (as specified in the
Note), if any, at the time and in the manner set forth
in the Letter of Representations.
Interest: General. Interest on each Book-Entry Note will be
-------
calculated and paid in the manner described in such
Note and in the Prospectus Supplement. Interest on each
Book-Entry Note will accrue from the Interest Accrual
Date of the Global Security representing such Note.
Payments of Interest. Each payment of interest on a
--------------------
Book-Entry Note will include interest accrued to but
excluding the Interest Payment Date; provided that in
--------
the case of Floating Rate Notes that reset daily or
weekly, interest payments will include interest accrued
to and including the Record Date immediately preceding
the Interest Payment Date, except that at maturity or
redemption or repayment, the interest payable will
include interest accrued to, but excluding, the
maturity date or the date of redemption or repayment,
as the case may be. Standard & Poor's Corporation will
use the information received in the pending deposit
message described under Set
--
B-7
tlement Procedure "C" below in order to include the
amount of any interest payable and certain other
information regarding the related Global Security in
the appropriate weekly bond report published by
Standard & Poor 's Corporation.
Payments at Maturity or Upon Redemption or Repayment.
----------------------------------------------------
Interest payable at maturity or upon redemption or
repayment of a Book-Entry Note will be payable to the
person to whom the principal of such Note is payable.
Record Dates. The Record Date with respect to any
------------
Interest Payment Date shall be the date 15 calendar
days immediately preceding such Interest Payment Date,
whether or not such date shall be a Business Day.
Fixed Rate Book-Entry Notes. Unless otherwise specified
---------------------------
in the applicable Pricing Supplement, interest payments
on Fixed Rate Book-Entry Notes (other than Amortizing
Notes) will be made semi-annually on January l and July
l of each year and at maturity; Book-Entry Amortizing
Notes will pay principal and interest semi-annually
each January l and July l or quarterly each January 1,
April 1, July 1 and October l and at maturity;
provided, however, that in the case of a Fixed Rate
-------- -------
Book-Entry Note issued between a Record Date and an
Interest Payment Date, the first interest payment will
be made on the Interest Payment Date following the next
succeeding Record Date.
B-8
Floating Rate Book-Entry Notes. Unless otherwise
------------------------------
specified in the applicable Pricing Supplement,
interest payments on Floating Rate Book-Entry Notes
will be made monthly, quarterly, semi-annually or
annually. Unless otherwise agreed upon, interest will
be payable, in the case of Floating Rate Book-Entry
Notes with a daily, weekly or monthly Interest Reset
Date, on the third Wednesday of each month or on the
third Wednesday of March, June, September and December
as specified pursuant to Settlement Procedure "A"
below; in the case of Floating Rate Book-Entry Notes
with a quarterly Interest Reset Date, on the third
Wednesday of March, June, September and December of
each year; in the case of Floating Rate Book-Entry
Notes with a semi-annual Interest Reset Date, on the
third Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and in the case of
Floating Rate Book-Entry Notes with an annual Interest
Reset Date, on the third Wednesday of the month
specified pursuant to Settlement Procedure "A" below;
provided, however, that if an Interest Payment Date for
-------- -------
Floating Rate Book-Entry Notes falls on a day that is
not a Business Day, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Book Entry Notes, except that in the case
of a LIBOR Note, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date
will be the immediately preceding Business Day; and
provided, further, that in the case of a Floating Rate
-------- -------
Book-Entry Note issued between a Record
B-9
Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Record Date.
Calculation of Fixed Rate Book-Entry Notes.
Interest: ---------------------------
Unless otherwise specified in the applicable Pricing
Supplement, interest on Fixed Rate Book-Entry Notes
(including interest for partial periods) will be
calculated on the basis of 360-day year of 12 30-day
months.
Floating Rate Book-Entry Notes. Unless otherwise
------------------------------
specified in the applicable Pricing Supplement,
interest on Floating Rate Book-Entry Notes will be
determined as set forth in the form of Notes. Interest
on Floating Rate Book-Entry Notes will be calculated on
the basis of the actual number of days elapsed and a
360-day year, except that in the case of Treasury Rate
Notes, interest will be calculated on the basis of the
actual number of days in the year.
Payments of Principal Payments of Interest. Promptly after each Record Date,
and Interest: --------------------
the Trustee will deliver to the Company and DTC a
written notice specifying by CUSIP number the amount of
interest to be paid on each Global Security (other than
an Amortizing Note) on the following Interest Payment
Date (other than an Interest Payment Date coinciding
with a maturity date or a redemption or repayment date)
and the total of such amounts. DTC will confirm the
amount payable on each such Global Security on such
Interest Payment Date by reference to the daily bond
reports published by Standard &
B-10
Poor's Corporation. In the case of Amortizing Notes,
the Trustee will provide separate written notice to DTC
prior to each Interest Payment Date at the times and in
the manner set forth in the Letter of Representations.
The Company will pay to the Trustee, as paying agent,
the total amount of interest due on such Interest
Payment Date (and, in the case of an Amortizing Note,
principal and interest) (other than at a maturity date
or a redemption or repayment date), and the Trustee
will pay such amount to DTC at the times and in the
manner set forth below under "Manner of Payment."
Payments at Maturity or Upon Redemption or Repayment.
----------------------------------------------------
On or about the first Business Day of each month, the
Trustee will deliver to the Company and DTC a written
list of principal and interest to be paid on each
Global Security (other than an Amortizing Note)
maturing either at a maturity date or a redemption or
repayment date in the following month. The Company and
DTC will confirm the amounts of such principal and
interest payments with respect to each such Global
Security on or about the fifth Business Day preceding
the maturity date or redemption or repayment date of
such Global Security. In the case of Amortizing Notes,
the Trustee will provide separate written notice to DTC
prior to each Interest Payment Date at the times and in
the manner set forth in the Letter of Representations.
The Company will pay to the Trustee, as paying agent,
the principal amount of such Global Security, together
with interest due at such maturity date or redemption
or
B-11
repayment date. The Trustee will pay such amounts to
DTC at the times and in the manner set forth below
under "Manner of Payment." Promptly after payment to
DTC of the principal and interest due on the maturity
date or redemption or repayment date of such Global
Security, the Trustee will cancel such Global Security
in accordance with the terms of the Indenture and
deliver it to the Company.
Payments Not on Business Days. If any Interest Payment
-----------------------------
Date is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and
no interest shall accrue on such payment for the period
from and after such Interest Payment Date, maturity
date or redemption or repayment date, as the case may
be. If any Interest Payment Date for a Floating Rate
Book-Entry Note is not a Business Day, the payment due
on such day shall be made on the next succeeding
Business Day, except that, in the case of a Book-Entry
LIBOR Note, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date
will be the immediately preceding day that is a
Business Day with respect to such Book-Entry LIBOR
Note.
Manner of Payment. The total amount of any principal
-----------------
and interest due on Global Securities on any Interest
Payment Date or at maturity or upon redemption or
repayment shall be paid by the Company to the Trustee
in funds available for immediate use by the Trustee as
of 9:30 A.M. (New York City time) on such date. The
Company will
B-12
make such payment on such Global Securities by wire
transfer to the Trustee. The Company will confirm in
writing such instructions regarding payment to the
Trustee. Prior to 10:00 A.M. (New York City time) on
each maturity date or redemption or repayment date, or
as soon as possible thereafter, the Trustee will pay by
separate wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC) to
an account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available for
immediate use by DTC each payment of principal
(together with interest thereon) due on Global
Securities on any maturity date or redemption or
repayment date. On each Interest Payment Date, interest
payments (and, in the case of Amortizing Notes,
interest and principal payments) shall be made to DTC
in same day funds in accordance with existing
arrangements between the Trustee and DTC. Thereafter,
on each such date, DTC will pay, in accordance with its
SDFS operating procedures then in effect, such amounts
in funds available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded in
the book-entry system maintained by DTC. NEITHER THE
COMPANY NOR THE TRUSTEE SHALL HAVE ANY DIRECT
RESPONSIBILITY OR LIABILITY FOR THE PAYMENT BY DTC TO
SUCH PARTICIPANTS OF THE PRINCIPAL OF AND INTEREST ON
THE BOOK-ENTRY NOTES.
Withholding Taxes. The amount of any taxes required
-----------------
under applicable law to be withheld from any inter-
B-13
est payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in
DTC or other person responsible for forwarding payments
and materials directly to the beneficial owner of such
Note.
Preparation If any order to purchase a Book-Entry Note is accepted
of Pricing by or on behalf of the Company, the Company will
Supplement: prepare a pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note. The Company (i) will
arrange to file such Pricing Supplement with the
Securities and Exchange Commission in accordance with
the applicable paragraph of Rule 424(b) under the Act
and (ii) will, as soon as possible and in any event not
later than the date on which such Pricing Supplement is
filed with the Securities and Exchange Commission,
which shall be not later than the second Business Day
after the Trade Date, deliver the number of copies of
such Pricing Supplement to the Trustee and the relevant
Agent as such Agent shall request. The Agent will cause
such Pricing Supplement to be delivered to the
purchaser of the Note.
Pricing Supplements shall be sent to the applicable
Agent as indicated below:
Goldman, Sachs & Co. 85 Broad Street New York, New York
10004 Attention: Karen Robertson
(Telephone Number: (212) 902-8401)
(Telecopier Number: (212) 902-3000)
B-14
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Attention: Medium-Term Note Desk
(Telephone Number: (212) 272-5371)
(Telecopier Number: (212) 272-6227)
In each instance that a Pricing Supplement is prepared,
the relevant Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
following the applicable sale date pursuant to the
timetable for settlement set forth below unless the
Company, the Trustee and the purchaser agree to
settlement on another day, which shall be no earlier
than the second subsequent Business Day.
Settlement Settlement Procedures with regard to each Book-Entry
Procedures: Note sold by the Company to or through an Agent (unless
otherwise specified pursuant to a Terms Agreement),
shall be as follows:
A. The relevant Agent will advise the Company by
facsimile transmission or other mutually acceptable
means that such Note is a Book-Entry Note and of the
following settlement information:
l. Principal amount.
B-15
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note, the
Interest Rate, whether such Note will pay interest
annually or semiannually and whether such Note is an
Amortizing Note, and, if so, the amortization schedule,
or, in the case of a Floating Rate Book-Entry Note, the
Initial Interest Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period, Calculation
Agent, Base Rate, Index Maturity, Interest Reset
Period, Initial Interest Reset Date, Interest Reset
Dates, Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread (if any).
4. Redemption or repayment provisions, if any.
5. Settlement date and time (Original Issue Date).
6. Interest Accrual Date.
7. Price.
8. Agent's commission, if any, determined as provided
in the Distribution Agreement.
9. Whether the Note is an Original Issue Discount Note
(an "OID Note"), and if it is an OID Note, the total
amount of OID, the yield to maturity, the initial
accrual
B-16
period OID and the applicability of Modified Payment
upon Acceleration (and, if so, the Issue Price).
10. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
electronic transmission (confirmed in writing at any
time on the same date) of the information set forth in
Settlement Procedure "A" above. The Trustee will then
assign a CUSIP number to the Global Security
representing such Note and will notify the Company (and
the Company will thereafter notify the relevant Agent)
of such CUSIP number by facsimile transmission or other
mutually acceptable means.
C. The Trustee will enter a pending deposit message through
DTC's Participant Terminal System, providing the
following settlement information to DTC (which
information will be provided by DTC to the relevant
Agent and the CUSIP Service Bureau of Standard & Poor's
Corporation):
l. The information set forth in Settlement Procedure
"A".
2. The Initial Interest Payment Date for such Note, the
number of days by which such date succeeds the
related Record Date (as defined in the Note) and, if
known, the amount of interest payable on such Initial
Interest Payment Date per $l,000 principal amount.
B-17
3. The CUSIP number of the Global Security representing
such Note.
4. Whether such Global Security will represent any other
Book-Entry Note (to the extent known at such time).
5. Whether such Note is an Amortizing Note (by an
appropriate notation in the comments field of DTC's
Participant Terminal System).
6. The participant account numbers to be maintained by
DTC on behalf of such Agent and the Trustee.
D. The Trustee will complete and authenticate the Global
Security representing such Note.
E. DTC will credit such Note to the Trustee's participant
account at DTC.
F. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to (i)
debit such Note to the Trustee's participant account and
credit such Note to the relevant Agent's participant
account and (ii) debit the Agent's settlement account
and credit the Trustee's settlement account for an
amount equal to the price of such Note less the Agent's
commission, if any. The entry of such a deliver order
shall constitute a representation and warranty by the
Trustee to DTC that (a) the Global Security representing
such Book-Entry Note has been issued and authenticated
B-18
and (b) the Trustee is holding such Global Security
pursuant to the Medium-Term Note Certificate Agreement
between the Trustee and DTC.
G. Unless the relevant Agent is the end purchaser of such Note,
such Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such
Note to such Agent's participant account and credit such Note
to the participant accounts of the Participants with respect
to such Note and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such Agent
for an amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled
in accordance with SDFS operating procedures in effect on the
settlement date.
I. The Trustee will credit to the account of the Company
maintained at the Trustee, New York, New York, Account Number
40581399 (or such other account as may be designated by the
Company to the Trustee) in funds available for immediate use
in the amount transferred to the Trustee in accordance with
Settlement Procedure "F".
J. Unless the relevant Agent is the end purchaser of such Note,
such Agent will confirm the purchase of such Note to the
purchaser either by transmitting to the
B-19
Participants with respect to such Note a confirmation order or
orders through DTC's institutional delivery system or by
mailing a written confirmation to such purchaser.
K. If requested by the Company, the Trustee will send to the
Company a statement setting forth the principal amount of
Notes outstanding as of that date under the Indenture and
setting forth a brief description of any sales of which the
Company has advised the Trustee that have not yet been
settled.
Settlement For sales by the Company of Book-Entry Notes to or through an
Procedures Agent (unless otherwise specified pursuant to a Terms Agreement)
Timetable: for settlement on the first Business Day after the sale date,
Settlement Procedures "A" through "J" set forth above shall be
completed as soon as possible but not later than the respective
times in New York City set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 3:00 P.M. on settlement date
I-J 3:00 P.M. on settlement date
If a sale is to be settled more than one Business Day after the
sale date, settlement procedures "A", "B" and "C" shall be
completed as soon as practicable but no later than 11:00 A.M.,
12:00 Noon and 2:00 P.M., respec-
B-20
tively, on the first Business Day after the sale date. If the
Initial Interest Rate for a Floating Rate Book-Entry Note has not
been determined at the time that Settlement Procedure "A" is
completed, Settlement Procedure "B" and "C" shall be completed as
soon as such rate has been determined but no later than 12:00
Noon and 2:00 P.M., respectively, on the first Business Day
before the settlement date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire closing
deadlines and in the other events specified in the SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or cancelled,
the Trustee, after receiving notice from the Company or the
relevant Agent, will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect by no
later than 2:00 P.M. on the Business Day immediately preceding
the scheduled settlement date.
Failure If the Trustee fails to enter an SDFS deliver order with respect
to Settle: to a Book-Entry Note pursuant to Settlement Procedure "F", the
Trustee may deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message instructing
DTC to debit such Note to the Trustee's participant account,
provided that the Trustee's participant account contains a
principal amount of the Global Security representing such Note
that is at least equal to the principal amount to be debited. If
a withdrawal message is processed with respect to all the Book-
Entry Notes represented by a Global Security, the Trustee will
mark
B-21
such Global Security "cancelled," make appropriate entries in the
Trustee's records and send such cancelled Global Security to the
Company. The CUSIP number assigned to such Global Security shall,
in accordance with the procedures of the CUSIP Service Bureau of
Standard & Poor's Corporation, be cancelled and not immediately
reassigned. If a withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Notes represented by
a Global Security, the Trustee will exchange such Global Security
for two Global Securities, one of which shall represent such
Book-Entry Note or Notes and shall be cancelled immediately after
issuance and the other of which shall represent the remaining
Book-Entry Notes previously represented by the surrendered Global
Security and shall bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Note is not timely paid
to the Participants with respect to such Note by the beneficial
purchaser thereof (or a person, including an indirect participant
in DTC, acting on behalf of such purchaser), such Participants
and, in turn, the relevant Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the orders
entered pursuant to Settlement Procedures "F" and "G",
respectively. Thereafter, the Trustee will deliver the withdrawal
message and take the related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect.
B-22
In the event of a failure to settle with respect to one or more,
but not all, of the Book-Entry Notes to have been represented by
a Global Security, the Trustee will provide, in accordance with
Settlement Procedures "D" and "F", for the authentication and
issuance of a Global Security representing the Book-Entry Notes
to be represented by such Global Security and will make
appropriate entries in its records.
Trustee Not Nothing herein shall be deemed to require the Trustee to risk or
to Risk expend its own funds in connection with any payments to the
Funds: Company, an Agent, DTC or a Noteholder, it being understood by
all parties that payments made by the Trustee to the Company, an
Agent, DTC or a Noteholder shall be made only to the extent that
funds available for immediate use are provided to the Trustee for
such purpose.
PART II. ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection with the Certificated
Notes.
Issuance: Each Certificated Note will be dated and issued as of the date of
its authentication by the Trustee. Each Certificated Note will
bear an Original Issue Date, which will be (i) with respect to an
original Certificated Note (or any portion thereof), its original
issuance date (which will be the settlement date) and (ii) with
respect to any Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a Certificated Note or
in lieu of a destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor Certificated Note
regardless of
B-23
the date of authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully registered form
without coupons.
Transfers A Certificated Note may be presented for transfer or exchange at
and the principal corporate trust office of the Trustee. Certificated
Exchanges: Notes will be exchangeable for other Certificated Notes having
identical terms but different denominations without service
charge to the holder. Certificated Notes will not be exchangeable
for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date more than nine
months from the settlement date for such Note.
Currency: The currency denomination with respect to any Certificated Note
and the payment of principal and interest with respect to any
Certificated Note shall be set forth therein and in the
applicable Pricing Supplement.
Denominations: The denomination of any Certificated Note will be a minimum of
U.S. $100,000 or any amount in excess thereof that is an integral
multiple of U.S. $1,000 or the equivalent, as determined pursuant
to the provisions of the applicable Pricing Supplement, of U.S.
$100,000 (rounded down to an integral multiple of 1,000 units of
such Specified Currency) and any amount in excess thereof which
is an integral multiple of 1,000 units of such Specified
Currency.
Interest: General. Interest on each Certificated Note will be calculated
-------
and paid in the manner described in such Note and in the
applicable Prospectus Sup-
B-24
plement. Interest on each Certificated Note will accrue from the
Interest Accrual Date of such Note for the first interest period
and from the most recent date to which interest has been paid for
all subsequent interest periods. Each payment of interest on a
Certificated Note will include interest accrued to but excluding
the Interest Payment Date; provided that, in the case of Floating
Rate Notes which reset daily or weekly, interest payments will
include the Record Date immediately preceding the Interest
Payment Date, except that at maturity or redemption or repayment
the interest payable will include interest accrued to, but
excluding the maturity date or the date of redemption or
repayment, as the case may be.
Record Dates. The Record Date with respect to any Interest
------------
Payment Date shall be the date fifteen calendar days immediately
preceding such interest Payment Date, whether or not such date
shall be a Business Day.
Fixed Rate Certificated Notes. Unless otherwise specified
-----------------------------
pursuant to Settlement Procedure "A" below, interest payments on
Fixed Rate Certificated Notes (other than Amortizing Notes) will
be made semi-annually on January l and July 1 of each year and at
maturity; Certificated Amortizing Notes will pay principal and
interest semi-annually each January l and July l, or quarterly
each January 1, April l, July 1, and October l and at maturity;
provided, however, that in the case of a Fixed Rate Certificated
-------- -------
Note issued between a Record Date and an Interest Payment Date,
the first interest payment will be made on the Interest Payment
Date following the next succeeding Record Date.
B-25
Floating Rate Certificated Notes. Interest payments on Floating
--------------------------------
Rate Certificated Notes will be made monthly, quarterly, semi-
annually or annually. Unless otherwise agreed upon, interest will
be payable, in the case of Floating Rate Certificated Notes with
a daily, weekly or monthly Interest Reset Date, on the third
Wednesday of each month or on the third Wednesday of March, June,
September and December, as specified pursuant to Settlement
Procedure "A" below; in the case of Floating Rate Certificated
Notes with a quarterly Interest Reset Date, on the third
Wednesday of March, June, September and December of each year; in
the case of Floating Rate Certificated Notes with a semi-annual
Interest Reset Date, on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A" below; and in the
case of Floating Rate Certificated Notes with an annual Interest
Reset Date, an the third Wednesday of the month specified
pursuant to Settlement Procedure "A" below; provided, however,
-------- -------
that if an Interest Payment Date for a Floating Rate Certificated
Note falls on a day that is not a Business Day, such Interest
Payment Date will be the next succeeding Business Day with
respect to such Floating Rate Certificated Note, except that in
the case of a LIBOR Note, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date will be the
immediately preceding Business Day; and provided, further, that
-------- -------
in the case of a Floating Rate Certificated Note issued between a
Record Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following the
next succeeding Record Date.
B-26
Calculation of Fixed Rate Certificated Notes. Unless otherwise specified in the
Interest: applicable Pricing Supplement and Note, interest on Fixed Rate
Certificated Notes (including interest for partial periods) will
be calculated on the basis of a 360-day year of 12 30-day
months.
Floating Rate Certificated Notes.
--------------------------------
Interest on Floating Rate Certificated Notes will be determined
as set forth in the applicable Pricing Supplement and Note.
Unless otherwise specified in the applicable Pricing Supplement
and Note, interest on Floating Rate Certificated Notes will be
determined on the basis of the actual number of days elapsed and
a 360-day year, except that in the case of Treasury Rate Notes,
interest will be calculated on the basis of the actual number of
days in the year.
Payments of Payments of Interest. The Trustee will pay the principal amount
and Interest: --------------------
of each Certificated Note at maturity or upon redemption or
repayment upon presentation and surrender of such Note to the
Trustee. Such payment, together with payment of interest due at
maturity or upon redemption or repayment of such Note will be
made in funds available for immediate use by the Trustee and in
turn by the holder of such Note. Certificated Notes presented to
the Trustee at maturity or upon redemption or repayment for
payment will be cancelled and destroyed by the Trustee and a
certificate of disposition delivered to the Company. All
interest payments on a Certificated Note (other than interest
due at maturity or upon redemption or repayment) will be made by
check drawn on the Trustee (or another person appointed the
Trustee) and mailed by the Trustee to the per-
B-27
son entitled thereto as provided in such Note and the Indenture;
provided, however, (i) that the holder of $10,000,000 or more of
-------- -------
Notes having the same Interest Payment will, upon compliance
with the notification requirements set forth in the Notes, be
entitled to receive payment by wire transfer of immediately
available funds and (ii) unless otherwise specified in the
applicable Pricing Supplement or unless alternative arrangements
are made, payments on Notes in a currency other than U.S.
dollars will be made by wire transfer of immediately available
funds to an account maintained by the payee with a bank located
outside the United States and the holder of such Notes will
provide the Trustee with the appropriate wire transfer
instructions on or before the relevant Record Date. Following
each Record Date, the Trustee will furnish the Company with a
list of interest payments to be made the following Interest
Payment Date for each Certificated Note and in total for all
Certificated Notes. Interest at maturity or upon redemption or
repayment will be payable to the person to whom the payment of
principal is payable. The Trustee will provide monthly to the
Company lists of principal and interest, to the extent
ascertainable, to be paid on Certificated Notes maturing or to
be redeemed or repaid in the next month. The Trustee will be
responsible for withholding taxes on interest paid on
Certificated Notes only as required by applicable law and not
otherwise.
Payments Not on Business Days. If any Interest Payment Date or
-----------------------------
the maturity date or redemption or repayment date of a Fixed
Rate Certificated Note is not a Business Day, the payment due on
B-28
such day shall be made on the next succeeding Business Day and
no interest shall accrue on such payment for the period from and
after such Interest Payment Date, maturity date or redemption or
repayment date, as the case may be. If any Interest Payment Date
for a Floating Rate Certificated Note is not a Business Day, the
payment due on such day shall be made on the next succeeding
Business Day, except that, in the case of a Certificated LIBOR
Note, if such Business Day is in the next succeeding calendar
month such Interest Payment Date will be the immediately
preceding day that is a Business Day with respect to such
Certificated LIBOR Note. If the maturity date or any redemption
or repayment date of a Floating Rate Certificated Note would
fall on a day that is not a Business Day, the payment due on
such day shall be made on the next succeeding Business Day and
no interest on such payment shall accrue for the period from and
after such maturity date or redemption or repayment date, as the
case may be.
Preparation of If any order to purchase a Certificated Note is accepted by or
Pricing on behalf of the Company, the Company will prepare a Pricing
Supplement: Supplement reflecting the terms of such Note. The Company (i)
will arrange to file such Pricing Supplement with the Securities
and Exchange Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act and (ii) will, as soon as
possible and in any event not later than the date on which such
Pricing Supplement is filed with the Securities and Exchange
Commission, which shall be no later than the second Business Day
after the Trade Date, deliver the number of copies of such
Pricing Supplement to the Trustee and
B-29
the relevant Agent as such Agent shall request. The Agent will
cause such Pricing Supplement to be delivered to the purchaser
of the Notes.
Pricing Supplements shall be sent to the applicable Agent as
indicated below:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Karen Robertson
(Telephone Number: (212) 902-8401)
(Telecopier Number: (212) 902-3000)
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Attention: Medium-Term Note Desk
(Telephone Number: (212) 272-5371)
(Telecopier Number: (212) 272-6227)
In each instance that a Pricing Supplement is prepared, the
relevant Agent will affix the Pricing Supplement to a Prospectus
prior to their use. Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other than those
retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
exchange for an authenticated Certificated Note delivered to the
relevant Agent and such Agent's delivery of such Note against
receipt of immediately available funds shall constitute
"settlement" with respect to such Note. All offers accepted by
the Company will be settled on or before the third Business Day
next succeeding the date of acceptance pursuant to the timetable
for settlement set forth below, unless the Company, the Trustee
and the pur-
B-30
chaser agree to settlement on another date.
Settlement Settlement Procedures with regard to each Certificated Note sold
Procedures: by the Company to or through an Agent (unless otherwise
specified pursuant to a Terms Agreement) shall be as follows:
A. The relevant Agent will advise the Company by telephone that
such note is a Certificated Note and of the following
settlement information:
l. Name in which such Note is to be registered ("Registered
Owner").
2. Address of the Registered Owner and address for payment of
principal and interest.
3. Taxpayer identification number of the Registered Owner (if
available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note, the
Interest Rate, whether such Note will pay interest
annually or semi-annually and whether such Note is an
Amortizing Note and, if so, the amortization schedule, or,
in the case of a Floating Rate Certificated Note, the
Initial Interest Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period, Calculation
Agent, Base
B-31
Rate, Index Maturity, Interest Reset Period, initial
Interest Reset Date, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum Interest Rate (if
any), Maximum Interest Rate (if any) and the Alternate
Rate Event Spread (if any).
7. Redemption or repayment provisions, if any.
8. Settlement Date and time (Original Issue Date).
9. Interest Accrual Date.
10. Price.
11. Agent's commission, if any, determined as provided in the
Distribution Agreement.
12. Denominations.
13. Specified Currency.
14. Whether the Note is an OID Note, and if it is an OID Note,
the total amount of OID, the yield to maturity, the
initial accrual period OID and the applicability of
Modified Payment upon Acceleration (and if so, the issue
price).
15. Any other applicable terms.
B. The Company will advise the Trustee by telephone or electronic
transmission (confirmed in writing at any time on the sale
date) of the information set forth in Settlement Procedure "A"
above.
B-32
C. The Company will have delivered to the Trustee a pre-printed
four-ply packet for such Note, which packet will contain the
following documents in forms that have been approved by the
Company, the Agents and the Trustee:
l. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and authenticate such Note
and deliver it (with the confirmation) and Stubs One and Two
to the relevant Agent at the following applicable address:
If to Goldman, Sachs & Co.:
--------------------------
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Receive and Deliver Department
Attention: William Connell
If to Bear, Stearns & Co. Inc.:
------------------------------
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Attention: Medium-Term Note Desk
The relevant Agent will acknowledge receipt of the Note by
stamping or otherwise marking Stub One and returning it to the
Trustee. Such delivery will be made only against such
acknowledgment of receipt and evidence that instructions
B-33
have been given by such Agent for payment to the account of
the Company at the Trustee, New York, New York, or to such
other account as the Company shall have specified to such
Agent and the Trustee in funds available for immediate use, of
an amount equal to the price of such Note less such Agent's
commissions, if any. In the event that the instructions given
by such Agent for payment to the account of the Company are
revoked, the Company will as promptly as possible wire
transfer to such Agent's account an amount of immediately
available funds equal to the amount of such payment made.
E. Unless the relevant Agent is the end purchaser of the Note,
such Agent will deliver such Note (with confirmation) to the
customer against payment in immediately payable funds. Such
Agent will obtain the acknowledgment of receipt of such Note
by retaining Stub Two.
F. The Trustee will send Stub Three to the Company by first class
mail. If requested by the Company, the Trustee will also send
to the Company a statement setting forth the principal amount
of the Notes outstanding as of that date under the Indenture
and setting forth a brief description of any sales of which
the Company has advised the Trustee that have not yet been
settled.
B-34
Settlement For sales by the Company of CertiProcedures ficated Notes to
Procedures or through an Agent (unless otherwise specified pursuant to a
Timetable: Terms Agreement), Settlement Procedures "A" through "F" set
forth above shall be completed on or before the respective
times in New York City set forth below:
Settlement
Procedure
---------
Time
----
A 2:00 P.M. on day before
settlement date
B 3:00 P.M. on day before
settlement date
C-D 2:15 P.M. on settlement
date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure If a purchaser fails to accept delivery of and make payment
to Settle: for any Certificated Note, the relevant Agent will notify the
Company and the Trustee by telephone and return such Note to
the Trustee. Upon receipt of such notice, the Company will
immediately wire transfer to such Agent's account an amount
equal to the amount previously credited thereto in respect of
such Note. Such wire transfer will be made on the settlement
date, if possible, and in any event not later than the
Business Day following the settlement date. If the failure
shall have occurred for any reason other than a default by
such Agent in the performance of its obligations hereunder and
under the Distribution Agreement, then the Company will
reimburse such Agent or the Trustee, appropriate, on an
equitable basis for its loss of the use of the funds
B-35
during the period when they were credited to the account of
the Company. Immediately upon receipt of the Certificated Note
in respect of which such failure occurred, the Trustee will
mark such Note "cancelled," make appropriate entries in the
Trustee's records and dispose of such Note and send a
certificate of disposition to the Company.
Trustee Not to Nothing herein shall be deemed to require the Trustee to risk
Risk Runds: or expend its own funds in connection with any payments to the
Company, an Agent or a Noteholder, it being understood by all
parties that payments made by the Trustee to the Company, an
Agent or a Noteholder shall be made only to the extent that
funds available for immediate use are provided to the Trustee
for such purpose.
B-36
Exhibit C
Opinion of George A. Vandeman,
General Counsel for the Company
The opinion of George A. Vandeman, General Counsel for the Company, to
be delivered pursuant to Section 4(b)(i) of the Agreement, shall be
substantially to the effect that:
(i) the Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware, with
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus. Based solely on certificates from public officials, such
counsel shall confirm that the Company is qualified to do business in the
states set forth on Annex A;
(ii) based solely on certificates from public officials, such
counsel shall confirm that Kirin-Amgen, Inc. has been duly incorporated and
is validly existing and in good standing under the laws of the State of
Delaware, and, based solely on the certificate of incorporation of Kirin-
Amgen, Inc., has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus;
(iii) each of the Agreement and any applicable Terms Agreement
has been duly authorized, executed and delivered by the Company;
(iv) the execution and delivery by the Company of, and the
issuance and sale of the Notes pursuant to the Agreement and any applicable
Terms Agreement (A) will not contravene (i) the certificate of
incorporation or by-laws of the Company or (ii) any agreement or other
instrument identified as an exhibit to the Company's most recent annual
report on Form 10-K or any quarterly report on Form 10-Q or current report
on Form 8-K filed subsequently thereto, and (B) to the best of such
counsel's knowledge (i) will not contravene any provision of applicable
law, (ii) will not contravene any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company,
C-1
Kirin-Amgen, Inc. or their respective business or assets, and (iii) no
consent, approval or authorization or order of or qualification with any
governmental body or agency is required for the issuance and sale of the
Notes by the Company under this Agreement or any applicable Terms
Agreement, except such as are specified and have been obtained and as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes;
(v) to the best of such counsel's knowledge, there are no (A)
legal or governmental proceedings pending or threatened to which the
Company is a party or to which any of the properties of the Company is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described, or (B) contracts or other
documents of a character required to be filed as exhibits to the
Registration Statement that are not filed as required; and
(vi) each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for financial
statements, schedules and other financial data included or incorporated
therein as to which such counsel need not express any opinion) complied
when so filed as to form in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company and
representatives of the Agents, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and, although
such counsel does not pass upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus and has not made any independent check
or verification thereof, during the course of such participation (relying as to
materiality to the extent such counsel deemed appropriate upon the statements of
officers and other representatives of the Company), no facts came to such
counsel's attention that caused such counsel to believe that the Registration
Statement, at the time it became effective, 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 the
C-2
Prospectus, as of its date and as of the date hereof, contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; it being understood that such counsel need not express any
belief with respect to the financial statements, schedules and other financial
data included in the Registration Statement or the Prospectus or incorporated
therein by reference or with respect to the Form T-1.
Counsel for the Company may limit his opinion to the laws of the
States of Delaware and California, and the federal laws of the United States;
provided, that with respect to the laws of the State of California such counsel
- --------
may either (A) rely upon an opinion or opinions (in the form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel or counsels
admitted to practice law in the State of California or (B) state in his opinion
that his opinion is based on the advice of counsel or counsels who are admitted
to practice law in the State of California; provided, further, that such counsel
-------- -------
or counsels may be employees of the Company. If such counsel shall rely on the
opinion of another counsel with regard to the laws of the State of California,
the opinion of such counsel for the Company shall state that the opinion or
opinions, as the case may be, of any other such counsel or counsels is or are in
form satisfactory to such counsel and, in such counsel's opinion, the Agents and
they are justified in relying thereon. In addition, such counsel may take
customary assumptions, limitations and exceptions that such counsel deems
reasonably necessary and that are reasonably acceptable to the Agents.
C-3
ANNEX A
-------
California North Carolina
Florida Ohio
Massachusetts Pennsylvania
Michigan Tennessee
Missouri Virginia
New Jersey Wisconsin
New York
C-4
Exhibit D
Opinion of Latham & Watkins,
Special Counsel for the Company
The opinion of counsel to the Company, to be delivered pursuant to
Section 4(b)(ii) of the Agreement shall be substantially to the effect that:
(i) the Indenture has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery by the
Trustee) is the legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms;
(ii) the Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof in accordance with the
terms of the Agreement and any applicable Terms Agreement, will be entitled
to the benefits provided by the Indenture and will be a legally valid and
binding obligation of the Company, enforceable against the Company in
accordance with their terms;
(iii) the statements in the Prospectus Supplement under the caption
"Description of the Notes" and in the Basic Prospectus under the caption
"Description of Debt Securities" insofar as such statements constitute
summaries of the legal matters or documents referred to therein, are
accurate in all material respects; and
(iv) the Registration Statement and Prospectus (except for financial
statements, schedules and other financial data included or incorporated
herein as to which such counsel need not express any opinion), comply as to
form in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
Counsel for the Company may limit its opinion to the laws of the
States of Delaware, California and New York and the federal laws of the United
States. Such counsel's opinion shall be subject to the following exceptions,
limitations and qualifications: (A) the effect of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to or affecting the rights and
D-1
remedies of creditors; (B) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or law, and the discretion
of the court before which any proceeding therefor may be brought; (C) such
counsel need express no opinion concerning the enforceability of the waiver of
rights or defenses contained in the Indenture; (D) such counsel need express no
opinion with respect to whether the acceleration of the Notes may affect the
collectibility of that portion of the stated principal amount thereof which
might be determined to constitute unearned interest thereon; and (E) the
unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to
public policy. With respect to paragraph (iv) above, such counsel may state that
such counsel's opinion assumes that the statements made and incorporated by
reference in the Registration Statement and the Prospectus are correct and
complete.
D-2
Exhibit E
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
Counsel for the Agents
The opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for
the Agents, to be delivered pursuant to Section 4(b)(iii) of the Distribution
Agreement, shall be substantially to the effect that:
(i) the Distribution Agreement has been duly authorized, executed and
delivered by the Company;
(ii) the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended, and has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding
at law or in equity);
(iii) the issuance and sale of the Notes have been duly authorized by
the Company, and the Notes, when (a) executed by the Company, (b) completed
to reflect the terms thereof and authenticated in accordance with the
provisions of the Indenture and (c) delivered to and paid for by the
purchasers thereof in accordance with the terms of the Distribution
Agreement and any applicable Terms Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company enforceable in accordance with their terms except to the extent
that enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity), (iii) requirements that a claim with respect to any Notes
denominated other than in United States dollars (or a judgment denominated
other than in United States dollars in respect of such claim) be converted
into United States dollars at a rate of exchange prevailing on a date
deter-
E-1
mined pursuant to applicable law and (iv) governmental authority to
limit, delay or prohibit the making of payments outside the United States
or in foreign currency or composite currency.
(iv) The Registration Statement, as of its effective date, and the
Prospectus, as of the date of the Prospectus Supplement, appeared on their
face to be appropriately responsive in all material respects to the
requirements of the Act and the rules and regulations promulgated by the
Commission thereunder, except that in each case (A) we express no opinion
as to (i) the financial statements, schedules and other financial data
included or incorporated by reference therein or excluded therefrom, (ii)
the documents incorporated by reference therein or (iii) the exhibits to
the Registration Statement, including the Form T-1, (B) and we do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus.
In addition, we have participated in conferences with officers and other
representatives of the Company, counsel for the Company, representatives of the
independent accountants of the Company and the Agents at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and have made no independent check or
verification thereof, on the basis of the foregoing, no facts have come to our
attention that have led us to believe that the Registration Statement, at the
time it became effective, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of the
date of the Prospectus Supplement and as of the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that we express
no opinion or belief with respect to (i) the financial statements, schedules and
other financial data included therein or excluded therefrom or (ii) the exhibits
to the Registration Statement, including the Form T-1.
E-2
EXHIBIT 4.1
FORM OF
FLOATING RATE MEDIUM-TERM NOTE
[FACE OF NOTE]
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (THE "DEPOSITARY") OR A NOMINEE THEREOF. THIS NOTE IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY, TO THE CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN./1/
- --------------------------
/1/ These paragraphs apply to global Notes only.
AMGEN INC.
MEDIUM-TERM NOTE
(Floating Rate)
REGISTERED No.: CUSIP No._________: PRINCIPAL AMOUNT:
FLR-______ $__________
ORIGINAL ISSUE DATE: STATED MATURITY:
INTEREST PAYMENT DATE(S): INITIAL INTEREST RATE: RECORD DATE(S):
REDEMPTION COMMENCEMENT INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: ___% PERCENTAGE REDUCTION: ___ %
OPTIONAL REPAYMENT [_] CHECK IF AN ORIGINAL ISSUE DISCOUNT NOTE
DATE(S): Issue Price:$
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: CALCULATION AGENT
[_] United States dollars [_] $1,000 and integral (if other than CITIBANK, N.A.):
[_] Other: multiples thereof
[_] Other
MINIMUM INTEREST RATE: MAXIMUM INTEREST RATE: INITIAL INTEREST RESET DATE:
INTEREST RESET PERIOD: INTEREST DETERMINATION INTEREST RESET DATE(S):
DATE:
INDEX MATURITY: DEFAULT RATE: _____% per annum
SPREAD (plus or minus): _______ SPREAD MULTIPLIER: ______ % EXCHANGE RATE AGENT
(if other than CITIBANK, N.A.):
INTEREST CATEGORY: DAY COUNT CONVENTION:
[_] Regular Floating Rate Note [_] Actual/360 for the period
[_] Floating Rate/Fixed Rate Note [_] Actual/Actual for the period
Fixed Rate Commencement Date: [_] 30/360 for the period
Fixed Interest Rate: % from to
2
[_] Inverse Floating Rate Note
Fixed Interest Rate: % from to
INTEREST RATE BASIS OR BASES:
[_] CD Rate
[_] Prime Rate
[_] Federal Funds Rate
[_] Commercial Paper Rate
[_] LIBOR:
[_] Reuters Page: _________
[_] Telerate Page: _________
Index Currency:
[_] Treasury Rate
[_] CMT Rate
[_] Dow Jones Telerate Page 7055
[_] Dow Jones Telerate Page 7052
[_] Other Telerate Page:________
CMT Maturity Index:_________
[_] Other:
ADDENDUM ATTACHED:
[_] Yes
[_] No
OTHER/ADDITIONAL PROVISIONS:
3
Amgen Inc., a Delaware corporation (the "Corporation", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _________, or registered assigns,
the principal sum of _________, on the Stated Maturity specified above (or any
Redemption Date or Repayment Date, each as defined on the reverse hereof)
(each such Stated Maturity, Redemption Date or Repayment Date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon, at the Interest Rate to be determined in
accordance with the provisions below, depending on the Interest Rate Basis shown
above (the "Floating Interest Rate"), until the principal hereof is paid or duly
made available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) at the Default Rate per annum specified above on
any overdue principal, premium and/or interest. The Corporation will pay
interest in arrears on each Interest Payment Date, if any, specified above
(each, an "Interest Payment Date"), commencing with the first Interest Payment
Date next succeeding the Original Issue Date specified above, and on the
Maturity Date; provided, however, that unless otherwise specified on the face
hereof, if the Original Issue Date occurs between a Record Date (as defined
below) and the next succeeding Interest Payment Date, interest payments will
commence on the second Interest Payment Date next succeeding the Original Issue
Date to the registered holder of this Note (the "Holder") on the Record Date
with respect to such second Interest Payment Date.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
Interest on this Note will accrue from and including the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from and including the Original Issue Date if no interest has been paid
or duly provided for) to but excluding the applicable Interest Payment Date or
the Maturity Date, as the case may be (each, an "Interest Period"). However, in
case the interest rate on this Note is reset daily or weekly, unless otherwise
specified on the face hereof, the interest payments will include interest
accrued only from but excluding the Record Date through which interest has been
paid (or from and including the Original Issue Date, if no interest has been
paid with respect to this Note) through and including the Record Date next
preceding the applicable Interest Payment Date, except that the interest payment
on Maturity will include interest accrued to but excluding such date. Accrued
interest is calculated by multiplying the face amount
4
of this Note by an accrued interest factor. Such accrued interest factor is
computed by adding the interest factor calculated for each day from the Original
Issue Date, or from the last date to which interest has been paid or duly
provided for, to the date for which accrued interest is being calculated. The
interest factor for each day is computed by dividing the interest rate
applicable to such day by 360 in the case of CD Rate Notes, Commercial Paper
Rate Notes, Federal Funds Rate Notes, LIBOR Notes or Prime Rate Notes, or by the
actual number of days in the year in the case of CMT Rate Notes or Treasury Rate
Notes. The interest factor for Notes for which the interest rate is calculated
with reference to two or more Interest Rate Bases will be calculated in each
period in the same manner as if only the lowest of the applicable Interest Rates
Bases applied. If any Interest Payment Date other than the Maturity Date for
this Note falls on a day that is not a Business Day with respect to this Note,
such Interest Payment Date for this Note will be postponed to the next
succeeding Business Day for this Note, except that, in the case of a LIBOR Note
(or a Note for which LIBOR is an applicable Interest Rate Basis), if such
Business Day is in the next succeeding calendar month, such Interest Payment
Date will be the immediately preceding day that is a Business Day for this Note.
If the Maturity Date of this Note falls on a day that is not a Business Day, the
payment of principal, premium, if any, and interest will be made on the next
succeeding Business Day, as if made on the date such payment was due, and no
interest on such payment shall accrue on such payment for the period from and
after Maturity Date to the date of such payment on the next succeeding Business
Day.
Unless otherwise specified on the face hereof, the interest so payable
and punctually paid or duly provided for on any Interest Payment Date will,
subject to certain exceptions described herein, be paid to the person in whose
name this Note (or one or more predecessor Notes) is registered at the close of
business on the fifteenth calendar day (whether or not a Business Day, as
defined below) immediately preceding such Interest Payment Date (the "Record
Date"); provided, however, that interest payable on the Maturity Date will be
payable to the person to whom the principal hereof and premium, if any, hereon
shall be payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the Holder on any
Record Date, and shall be paid to the person in whose name this Note is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee (as defined on the reverse hereof), notice whereof shall be given to the
Holder of this Note by the Trustee not less than 15 calendar days prior to such
Special Record Date.
5
Payment of principal, premium, if any, and interest in respect of this Note
due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at (i) the corporate trust office of the Trustee currently
located at Citibank, N.A., 111 Wall Street, 15th Floor, New York, N.Y. 10043 or
(ii) the office or agency maintained by the Company for such purpose in the
Borough of Manhattan, The City of New York, currently the offices of the Trustee
located at Citibank, N.A., 111 Wall Street, 15/th/ Floor, New York, N.Y. 10043;
provided, however, that if such payment is to be made in a Specified Currency
other than United States dollars as set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the Holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed repayment election form) is presented
and surrendered at the aforementioned office of the Trustee in time for the
Trustee to make such payment in such funds in accordance with its normal
procedures. Unless otherwise specified on the face hereof, payment of interest
due on any Interest Payment Date other than the Maturity Date will be made at
the office or agency referred to above maintained by the Corporation for such
purpose or, at the option of the Corporation, may be made by check mailed to the
address of the person entitled thereto as such address shall appear in the
security register of the Corporation maintained at the aforementioned office of
the Trustee; provided, however, that a holder of U.S. $10,000,000 (or, if the
Specified Currency specified above is other than United States dollars, the
equivalent thereof in the Specified Currency) or more in aggregate principal
amount of Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments on such Interest Payment Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such Holder.
As used herein, "Business Day" means any day except a Saturday, Sunday
or a legal holiday in The City of New York on which banking institutions are
authorized or required by law, regulation or executive order to close; provided,
however, that if the Specified Currency is other than United States dollars and
any payment is to be made in the Specified Currency in accordance with the
provisions hereof, such day is also not a day on which banking institutions are
authorized or required by law, regulation or executive order to close in the
Principal Financial Center (as defined below) of the country issuing the
Specified Currency (or, in the
6
case of European Currency Units ("ECU"), is not a day that appears as an ECU
non-settlement day on the display designated as "ISDE" on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association) or,
if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market); provided, further, that, if this is a LIBOR
Note, such day is also a London Business Day. "London Business Day" means (i) if
the Index Currency (as defined below) is other than ECU, any day on which
dealings in such Index Currency are transacted in the London interbank market or
(ii) if the Index Currency is ECU, any day that does not appear as an ECU non-
settlement day on the display designated as "ISDE" on the Reuter Monitor Money
Rates Service (or a day so designated by the ECU Banking Association) or, if ECU
non-settlement days do not appear on that page (and are not so designated), is
not a day on which payments in ECU cannot be settled in the international
interbank market. "Principal Financial Center" means (i) the capital city of the
country issuing the Specified Currency (except as described above in this
paragraph with respect to ECU) or (ii) the capital city of the country to which
the Index Currency, if applicable relates (or, in the case of ECU, Luxembourg),
except, in each case, that with respect to United States dollars, Australian
dollars, Canadian dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss
francs and ECU, the "Principal Financial Center" shall be The City of New York,
Sydney, Toronto, Frankfurt, Amsterdam, Milan (solely in the case of clause (i)
above), Zurich and Luxembourg, respectively.
The "Floating Interest Rate" on this Note will be calculated by
reference to the Interest Rate Basis or Bases, as specified on the first page
hereof, (a) plus or minus the Spread, if any, and/or (b) multiplied by the
Spread Multiplier, if any. The Interest Rate Basis may be one or more of: (a)
the CD Rate, (b) the CMT Rate, (c) the Commercial Paper Rate, (d) the Federal
Funds Rate, (e) LIBOR, (f) the Treasury Rate, (g) the Prime Rate or (h) such
other Interest Rate Basis or interest rate formula as is set forth on the first
page hereof. The "Index Maturity" is the period to maturity of the instrument
or obligation with respect to which the related Interest Rate Basis or Bases are
calculated. In addition, this Note may bear interest at the lowest of two or
more Interest Rate Basis or Bases determined in the same manner as the Floating
Interest Rates described above (except the interest rate for such Notes will not
be determined with reference to the Treasury Rate). Except as otherwise
provided herein, all percentages resulting from any calculation will be rounded,
if necessary, to the nearest one hundred- thousandth of a percentage point, with
five one-millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all amounts used in
7
or resulting from such calculation will be rounded to the nearest cent or, in
the case of a foreign currency or composite currency, to the nearest unit (with
one-half cent or unit being rounded upward).
Notwithstanding the foregoing, if this Note is designated above as
having an Addendum attached, this Note shall bear interest in accordance with
the terms described in such Addendum.
Unless otherwise specified on the face hereof, the "Regular Record
Date" with respect to this Note shall be the fifteenth calendar day immediately
preceding the related Interest Payment Date or Dates, whether or not such date
shall be a Business Day, and interest will be payable, in the case of Notes
which reset daily, weekly or monthly, on the third Wednesday of each month or on
the third Wednesday of each March, June, September and December of each year, as
specified on the face hereof; in the case of Notes which reset quarterly, on the
third Wednesday of March, June, September and December of each year; in the
case of Notes which reset semi-annually, on the third Wednesday of the two
months of each year specified on the face hereof; and in the case of Notes which
reset annually, on the third Wednesday of the month specified on the face hereof
(each an "Interest Payment Date"), and in each case, on the Maturity Date.
Except as provided on the face hereof, the rate of interest on this
Note will be reset daily, weekly, monthly, quarterly, semi-annually or annually
(each an "Interest Reset Period"), as specified on the face hereof. Except as
provided on the face hereof, if this Note resets daily, the Interest Reset Date
will be each Business Day; if this Note resets weekly, the Interest Reset Date
will be the Wednesday of each week (with the exception of weekly reset Treasury
Rate Notes, which reset Tuesday of each week except as provided below); if this
Note resets monthly, the Interest Reset Date will be the third Wednesday of each
month; if this Note resets quarterly, the Interest Reset Date will be the third
Wednesday of each March, June, September and December of each year; if this Note
resets semi-annually, the Interest Reset Date will be the third Wednesday of
each of the two months of each year specified on the face hereof; and if this
Note resets annually, the Interest Reset Date will be the third Wednesday of the
month of each year as specified on the face hereof. The interest rate in effect
on each day that is not an Interest Reset Date will be the interest rate
determined as of the Interest Determination Date pertaining to the immediately
preceding Interest Reset Date and the interest rate in effect on any day that is
an Interest Reset Date will be the interest rate determined as of the Interest
Determination Date pertaining to such Interest Reset Date; provided, however,
that
8
the interest rate in effect for the period, if any, from the date of issue
to the Initial Interest Reset Date will be the Initial Interest Rate; provided,
further, that if this Note is a Floating Rate/Fixed Rate Note the interest rate
in effect for the period commencing on the Fixed Rate Commencement Date to the
Maturity Date shall be the Fixed Interest Rate specified on the face hereof or,
if no interest rate is specified, the interest rate in effect on the day
immediately preceding the Fixed Rate Commencement Date. If any Interest Reset
Date would otherwise be a day that is not a Business Day, the Interest Reset
Date shall be postponed to the next succeeding day that is a Business Day,
except that in the case of a LIBOR Note or a Note for which LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Reset Date will be the immediately
preceding Business Day. In addition, if the Treasury Rate is an applicable
Interest Rate Basis and the Interest Determination Date would otherwise fall on
an Interest Reset Date, then such Interest Reset Date will be postponed to the
next succeeding Business Day.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date will be the rate determined as of the
applicable Interest Determination Date on or prior to the Calculation Date (as
defined below). The Interest Determination Date with respect to the CD Rate, the
CMT Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate
will be the second Business Day preceding the applicable Interest Reset Date;
and the Interest Determination Date with respect to LIBOR will be the second
London Business Day preceding the applicable Interest Reset Date, unless the
Index Currency (as defined below) is British pounds sterling, in which case the
Interest Determination Date will be the applicable Interest Reset Date. The
Interest Determination Date with respect to the Treasury Rate will be the day in
the week in which the applicable Interest Reset Date falls on which day Treasury
Bills (as defined below) are normally auctioned (Treasury Bills are normally
sold at an auction held on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday); provided,
however, that if an auction is held on the Friday of the week preceding the
applicable Interest Reset Date, the Interest Determination Date shall be such
preceding Friday. If the interest rate of this Note is determined with
reference to two or more Interest Rate Bases the Interest Determination Date
will be the most recent Business Day which is at least two Business Days prior
to the applicable Interest Reset Date on which each Interest Rate Basis shall be
determinable. Each Interest Rate Basis shall be determined and compared on such
date, and the applicable interest rate shall take effect on the applicable
Interest Reset Date.
9
The Calculation Agent (which shall be Citibank, N.A. unless otherwise
specified on the face hereof and which may be changed by the Corporation from
time to time) shall calculate the Floating Interest Rate on this Note on or
before each Calculation Date and, upon request, provide the holders of the Notes
the Floating Interest Rate then in effect and, if determined, the interest rate
which will become effective as a result of a determination made for the next
succeeding Interest Reset Date with respect to this Note. The Calculation
Agent's determination of any Floating Interest Rate will be final and binding in
the absence of manifest error. Unless otherwise specified on the face hereof or
in an Addendum hereto, the "Calculation Date", where applicable, pertaining to
any Interest Determination Date will be the earlier of (a) the tenth calendar
day after such Interest Determination Date, or if any such day is not a Business
Day, the next succeeding Business Day, or (b) the Business Day immediately
preceding the applicable Interest Payment Date or the Maturity Date, as the case
may be.
Notwithstanding the other provisions herein, the Floating Interest
Rate hereon which may accrue during any interest period shall not be greater
than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate,
if any, shown on the first page hereof and, in addition, the Floating Interest
Rate shall in no event be higher than the maximum rate permitted by New York
law, as the same may be modified by United States law of general application.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse Floating Rate Note",
this Note shall be designated as a "Regular Floating Rate Note" and, except as
set forth below or on the face hereof, shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases (a) plus
or minus the Spread, if any, and/or (b) multiplied by the Spread Multiplier, if
any, in each case as specified on the face hereof. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note shall be payable
shall be reset as of each Interest Rate Date specified on the face hereof;
provided, however, that the interest rate in effect for the period, if any, from
the Original Issue Date to the Initial Interest Reset Date shall be the Initial
Interest Rate.
(ii) If the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", then, except as set forth below or
on the face hereof, this Note shall bear interest at the rate determined by
reference to the applicable
10
Interest Rate Basis or Bases (a) plus or minus the Spread, if any, and/or (b)
multiplied by the Spread Multiplier, if any. Commencing on the Initial Interest
Reset Date, the rate at which interest on this Note shall be payable shall be
reset as of each Interest Reset Date; provided, however, that (y) the interest
rate in effect for the period, if any, from the Original Issue Date to the
Initial Interest Reset Date shall be the Initial Interest Rate and (z) the
interest rate in effect for the period commencing on the Fixed Rate Commencement
Date specified on the face hereof to the Maturity Date shall be the Fixed
Interest Rate specified on the face hereof or, if no such Fixed Interest Rate is
specified, the interest rate in effect hereon on the day immediately preceding
the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on the face
hereof as an "Inverse Floating Rate Note", then, except as set forth below or on
the face hereof, this Note shall bear interest at the Fixed Interest Rate minus
the rate determined by reference to the applicable Interest Rate Basis or Bases
(a) plus or minus the Spread, if any, and/or (b) multiplied by the Spread
Multiplier, if any; provided, however, that, unless otherwise specified on the
face hereof, the interest rate hereon shall not be less than zero. Commencing
on the Initial Reset Date, the rate at which interest on this Note shall be
payable shall be reset as of each Interest Reset Date; provided, however, that
the interest rate in effect for the period, if any, from the Original Issue Date
to the Initial Interest Reset Date shall be the Initial Interest Rate.
DETERMINATION OF CD RATE.
The "CD Rate" will be determined by the Calculation Agent in
accordance with the following provisions:
"CD Rate" means, with respect to any Interest Determination Date
relating to a CD Rate Note or any Floating Rate Note for which the interest rate
is determined with reference to the CD Rate (a "CD Rate Interest Determination
Date"), the rate on such date for negotiable United States dollar certificates
of deposit having the Index Maturity specified on the face hereof as published
by the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates", or any successor publication ("H.15(519)"),
under the heading "CDs (Secondary Market)," or, if not so published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such CD Rate
Interest Determination Date, the CD Rate will be the rate on such CD Rate
Interest Determination Date for negotiable United States dollar certificates of
deposit of the specified Index Maturity as published
11
by the Federal Reserve Bank of New York in its daily statistical release
"Composite 3:30 P.M. Quotations for U.S. Government Securities" or any successor
publication ("Composite Quotations") under the heading "Certificates of
Deposit". If such rate is not published in either H.15(519) or the Composite
Quotations by 3:00 P.M., New York City time, on such related Calculation Date,
then the CD Rate on such CD Rate Interest Determination Date will be calculated
by the Calculation Agent and will be the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable United States
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable United States dollar certificates of deposit of
major United States money market banks with a remaining maturity closest to the
Index Maturity specified on the face hereof in an amount that is representative
for a single transaction in that market at that time; provided, however, that if
the dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the CD Rate determined as of such CD Rate Interest Determination
Date will be the CD Rate in effect on such CD Rate Interest Determination Date.
DETERMINATION OF CMT RATE.
The "CMT Rate" will be determined by the Calculation Agent in
accordance with the following provisions:
Unless otherwise specified on the face hereof, "CMT Rate" means, with
respect to any Interest Determination Date relating to a Floating Rate Note for
which the interest rate is determined with reference to the CMT Rate (a "CMT
Rate Interest Determination Date"), the rate displayed on the Designated CMT
Telerate Page under the caption "Treasury Constant Maturities Federal Reserve
Board Release H.15 Mondays Approximately 3:45 P.M.," under the column for the
Designated CMT Maturity Index for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the related CMT Rate Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page or is not displayed by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such treasury constant maturity rate for the Designated CMT
Maturity Index (as defined below) as published in the relevant H.15(519). If
such rate is no longer published or is not published by 3:00 P.M., New York
City time, on the related Calculation Date, then the
12
CMT Rate on such CMT Rate Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index (or other United
States Treasury rate for the Designated CMT Maturity Index) for the CMT Rate
Interest Determination Date with respect to such Interest Reset Date as may then
be published by either the Board of Governors of the Federal Reserve System or
the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in the relevant H.15(519). If such information is
not provided by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate on the CMT Rate Interest Determination Date will be calculated
by the Calculation Agent and will be a yield to maturity, based on the
arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 P.M., New York City time, on such CMT Rate Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a "Reference
Dealer") in The City of New York selected by the Calculation Agent (from five
such Reference Dealers selected by the Calculation Agent) and eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest), for the most
recently issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the Designated
CMT Maturity Index and a remaining term to maturity of not less than such
Designated CMT Maturity Index minus one year.
If the Calculation Agent is unable to obtain such Treasury Note
quotations, the CMT Rate on such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on the
arithmetic mean of the secondary market offer side prices as of approximately
3:30 P.M., New York City time, on such CMT Rate Interest Determination Date of
three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100 million. If
three or four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers so
selected by the Calculation Agent are quoting as mentioned herein, the
13
CMT Rate determined as of such CMT Rate Interest Determination Date will be the
CMT Rate in effect on such CMT Rate Interest Determination Date. If two Treasury
Notes with an original maturity as described in the second preceding sentence
have remaining terms to maturity equally close to the Designated CMT Maturity
Index, the Calculation Agent will obtain from five Reference Dealers quotations
for the Treasury Note with the shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Markets Service on the page specified on the face hereof (or any other page as
may replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)). If no such page is specified on
the face hereof, the Designated CMT Telerate Page shall be 7052 for the most
recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be 2 years.
DETERMINATION OF COMMERCIAL PAPER RATE.
The "Commercial Paper Rate" will be determined by the Calculation
Agent in accordance with the following provisions:
"Commercial Paper Rate" means, with respect to any Interest Deter-
mination Date relating to a Floating Rate Note for which the interest rate is
determined with reference to the Commercial Paper Rate (a "Commercial Paper
Rate Interest Determination Date"), the Money Market Yield (as defined below) on
such date of the rate for commercial paper having the Index Maturity specified
on the first page hereof as published in H.15(519) under the heading "Commercial
Paper" or such other heading, in each case representing commercial paper issued
by non-financial entities whose bond rating is "Aa," or the equivalent, from a
nationally recognized statistical rating organization. In the event such rate
is not published by 3:00 P.M., New York City time, on the related Calculation
Date, then the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date shall be the Money Market Yield of the rate for commercial
paper having the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Commercial Paper" (with an Index
Maturity of one month or three months being
14
deemed to be equivalent to the Index Maturity of 30 days or 90 days,
respectively). If such rate is not yet published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date, of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial paper of the
specified Index Maturity placed for an industrial issuer whose bond rating is
"Aa", or the equivalent, from a nationally recognized statistical rating
organization; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate determined as of such Commercial Paper Rate Interest Determination
Date will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" shall be the yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = 100 x 360 x D
----------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which interest is being calculated.
DETERMINATION OF FEDERAL FUNDS RATE.
The "Federal Funds Rate" will be determined by the Calculation Agent
in accordance with the following provisions:
"Federal Funds Rate" means, with respect to any Interest Determina-
tion Date relating to a Floating Rate Note for which the interest rate is
determined with reference to the Federal Funds Rate (a "Federal Funds Rate
Interest Determination Date"), the rate on such date for United States dollar
federal funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not so published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Federal Funds Rate Interest Determination
Date, as published in Composite Quotations under the heading "Federal
Funds/Effective Rate". If such rate is not published in either
15
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, then the Federal Funds Rate on such Federal Funds Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be the arithmetic mean of the rates for the last transaction in overnight United
States dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent prior to
9:00 A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; provided, however, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate then in effect on such Federal Funds Rate Interest
Determination Date.
DETERMINATION OF LIBOR.
"LIBOR" will be determined by the Calculation Agent in accordance with
the following provisions:
(i) With respect to any Interest Determination Date relating to
a Floating Rate Note for which the interest rate is determined with
reference to LIBOR (a "LIBOR Interest Determination Date"), LIBOR will be
either: (a) if "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page by
its terms provides only for a single rate, in which case such single rate
shall be used) for deposits in the Index Currency having the Index
Maturity specified on the face hereof, commencing on the applicable
Interest Reset Date, that appear (or, if only a single rate is required as
aforesaid, appears) on the Designated LIBOR Page as of 11:00 A.M., London
time, on such LIBOR Interest Determination Date, or (b) if "LIBOR Telerate"
is specified on the face page hereof or if neither "LIBOR Reuters" nor
"LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the rate for deposits in the Index Currency having the
Index Maturity specified on the face hereof, commencing on such Interest
Reset Date, that appears on the Designated LIBOR Page as of 11:00 A.M.,
London time, on such LIBOR Interest Determination Date. If fewer than two
such offered rates appear, or if no such rate appears, as applicable, LIBOR
on such LIBOR Interest Determination Date will be determined in accordance
with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates appear, or no rate appears, as the case
may
16
be, on the Designated LIBOR Page, as specified in clause (i) above, the
Calculation Agent will request the principal London offices of each of four
major reference banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Index Currency for the period of the Index
Maturity specified on the face hereof, commencing on the applicable
Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination
Date and in a principal amount that is representative for a single
transaction in such Index Currency in such market at such time. If at least
two such quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of such quotations. If fewer
than two such quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., in the applicable Principal Financial Center (as
defined above), on such LIBOR Interest Determination Date by three major
banks in such Principal Financial Center selected by the Calculation Agent
for loans in the Index Currency to leading European banks, having the Index
Maturity specified on the face hereof and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time; provided, however, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined as of such LIBOR Interest Determination Date will be LIBOR in
effect on such LIBOR Interest Determination Date.
"Index Currency" means the currency or composite currency specified on
the face hereof as to which LIBOR shall be calculated. If no such currency or
composite currency is specified on the face hereof, the Index Currency shall be
United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency, or (b) if "LIBOR Telerate" is
specified on the face hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified on the face hereof as the method for calculating LIBOR, the display on
the Dow Jones Markets Service (or any successor service) for the purpose of
displaying the London interbank rates of major banks for the applicable Index
Currency.
17
DETERMINATION OF PRIME RATE.
The "Prime Rate" will be determined by the Calculation Agent in
accordance with the following provisions:
"Prime Rate" means, with respect to any Interest Determination Date
relating to a Floating Rate Note for which the interest rate is determined with
reference to the Prime Rate (a "Prime Rate Interest Determination Date"), the
rate on such date as such rate is published in H.15(519) under the heading "Bank
Prime Loan". If such rate is not published prior to 3:00 P.M., New York City
time, on the related Calculation Date, then the Prime Rate will be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen USPRIME1 (as defined below) as such bank's prime
rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 for the Prime Rate Interest Determination Date, then the Prime Rate
will be determined by the Calculation Agent and will be the arithmetic mean of
the prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks in The City of New
York selected by the Calculation Agent. If fewer than four such quotations are
so provided, then the Prime Rate shall be the arithmetic mean of four prime
rates quoted on the basis of the actual number of days in the year divided by a
360- day year as of the close of business on such Prime Rate Interest
Determination Date as furnished in The City of New York by the major money
center banks, if any, that have provided such quotations and by as many
substitute banks or trust companies as necessary in order to obtain four such
prime rate quotations, provided such substitute banks or trust companies are
organized and doing business under the laws of the United States, or any State
thereof, each having total equity capital of at least $500 million and being
subject to supervision or examination by Federal or State authority, selected
by the Calculation Agent to provide such rate or rates; provided, however, that
if the banks or trust companies so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Prime Rate determined as of such
Prime Rate Interest Determination Date will be the Prime Rate in effect on such
Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1" means the display designated as page
"USPRIME1" on the Reuter Monitor Money Rates Service (or such other page as may
replace the USPRIME1 page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
18
DETERMINATION OF TREASURY RATE.
The "Treasury Rate" will be determined by the Calculation Agent in
accordance with the following provisions:
"Treasury Rate" means, with respect to any Interest Determination Date
relating to a Floating Rate Note for which the interest rate is determined by
reference to the Treasury Rate (a "Treasury Rate Interest Determination Date"),
the rate from the auction held on such Treasury Rate Interest Determination Date
(the "Auction") of direct obligations of the United States ("Treasury Bills")
having the Index Maturity specified on the face hereof, as such rate is
published in H.15(519) under the heading "Treasury Bills-auction average
(investment)" or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, the auction average rate of such Treasury Bills
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced by the United
States Department of the Treasury. In the event that the results of the Auction
of Treasury Bills having the Index Maturity specified in the applicable Pricing
Supplement are not reported as provided by 3:00 P.M., New York City time, on the
related Calculation Date, or if no such Auction is held, then the Treasury Rate
will be calculated by the Calculation Agent and will be a yield to maturity
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers selected by the Calculation Agent,
for the issue of Treasury Bills with a remaining maturity closest to the Index
Maturity specified in the applicable Pricing Supplement; provided, however, that
if the dealers so selected by the Calculation Agent are not quoting as mentioned
in this sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
The Corporation is obligated to make payments of principal, premium,
if any, and interest, if any, in respect of this Note in the Specified Currency
(or, if the Specified Currency is not at the time of such payment legal tender
for the payment of public and private debts, in such other coin or currency of
the country which issued the Specified Currency as at the time of such payment
is legal tender for the payment of such debts). If the Specified Currency is
other than United States dollars, any such amounts so payable by the Corporation
will be converted by the
19
Exchange Rate Agent specified above into United States dollars for payment to
the Holder of this Note; provided, however, that the Holder of this Note may
elect to receive such amounts in such Specified Currency pursuant to the
provisions set forth below.
If the Specified Currency is other than United States dollars and the
Holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest,
if any, in respect of this Note in the Specified Currency, any United States
dollar amount to be received by the Holder of this Note will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Corporation for the purchase by the quoting
dealer of the Specified Currency for United States dollars for settlement on
such payment date in the aggregate amount of the Specified Currency payable to
all holders of Notes scheduled to receive United States dollar payments and at
which the applicable dealer commits to execute a contract. All currency
exchange costs will be borne by the Holder of this Note by deductions from such
payments. If three such bid quotations are not available, payments on this Note
will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest, if any, in respect of
this Note in the Specified Currency by submitting a written request for such
payment to the Trustee at its Corporate Trust Office in the Borough of
Manhattan, The City of New York on or prior to the applicable Record Date or at
least 15 calendar days prior to the Maturity Date, as the case may be. Such
written request may be mailed or hand delivered or sent by cable, telex or other
form of facsimile transmission. The Holder of this Note may elect to receive
all or a specified portion of all future payments in the Specified Currency in
respect of such principal, premium, if any, and/or interest, if any, and need
not file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice of any
such revocation must be received by the Trustee on or prior to the applicable
Record Date or at least 15 calendar days prior to the Maturity Date, as the case
may be.
20
If the Specified Currency is other than United States dollars or a
composite currency and the Holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest, if any, in respect of this Note in the Specified Currency
and if the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Corporation, or is no
longer used by the government of the country issuing such currency or for the
settlement of transactions by public institutions within the international
banking community, then the Corporation will be entitled to satisfy its
obligations to the Holder of this Note by making such payment in United States
dollars on the basis of the Market Exchange Rate (as defined below) on the
second Business Day prior to such payment date or, if such Market Exchange Rate
is not then available, on the basis of the most recently available Market
Exchange Rate; provided, however, that if such Specified Currency is replaced by
a single European currency, the payment of principal of, premium, if any, or
interest, if any, on this Note denominated in such currency shall be effected in
the new single European currency in conformity with legally applicable measures
taken pursuant to, or by virtue of, the treaty establishing the European
Community, as amended by the treaty on European Unity. The "Market Exchange
Rate" for the Specified Currency means the noon dollar buying rate in The City
of New York for cable transfers for the Specified Currency as certified for
customs purposes by (or if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York. Any payment made under such circumstances in
United States dollars or a new single European currency where the required
payment is in a Specified Currency other than United States dollars or such
single European currency, respectively, will not constitute an Event of Default
(as defined in the Indenture) under the Indenture with respect to the Notes.
If the Specified Currency is a composite currency and the Holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest, if any, in
respect of this Note in the Specified Currency and if such composite currency is
unavailable due to the imposition of exchange controls or other circumstances
beyond the control of the Corporation, then the Corporation will be entitled to
satisfy its obligations to the Holder of this Note by making such payment in
United States dollars. The amount of each payment in United States dollars
shall be computed by the Exchange Rate Agent on the basis of the equivalent of
the composite currency in United States dollars. The component currencies of
the composite currency for this purpose (collectively, the "Component
Currencies" and each, a "Component Currency") shall be the currency amounts that
were components of the composite currency as of the
21
last day on which the composite currency was used. The equivalent of the
composite currency in United States dollars shall be calculated by aggregating
the United States dollar equivalents of the Component Currencies. The United
States dollar equivalent of each of the Component Currencies shall be determined
by the Exchange Rate Agent on the basis of the most recently available Market
Exchange Rate for each such Component Currency, or as otherwise specified on the
face hereof. Any payment made under such circumstances in United States dollars
where the required payment is in a Specified Currency that is a composite
currency will not constitute an Event of Default (as defined in the Indenture)
under the Indenture with respect to the Notes.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Unless the Certificate of Authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
22
IN WITNESS WHEREOF, the Corporation has caused this Note to be duly
executed under its corporate seal.
AMGEN INC.
By: ________________________________
Name:
Title:
(SEAL)
Dated:
23
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities referred to in the within-mentioned
Indenture.
CITIBANK, N.A.,
as Trustee
By: ____________________________
Authorized Signatory
24
[REVERSE OF NOTE]
AMGEN INC.
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Corporation issued and to be issued under an Indenture,
dated as of January 1, 1992, as supplemented by a First Supplemental Indenture,
dated as of February 26, 1997 (as amended or supplemented from time to time, the
"Indenture"), between the Corporation and Citibank, N.A., as Trustee (the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Corporation, the Trustee and the holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes" (the "Notes"). All terms used but not defined
in this Note specified on the face hereof or in an Addendum hereto shall have
the meanings assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or repayable prior to the
Stated Maturity.
This Note will be subject to redemption at the option of the
Corporation on any date on or after the Redemption Commencement Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S.$1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S.$1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined
below), together with unpaid interest accrued thereon to the date fixed for
redemption (each, a "Redemption Date"), on notice given not more than 60 nor
less than 30 calendar days prior to the Redemption
25
Date and in accordance with the provisions of the Indenture. The "Redemption
Price" shall initially be the Initial Redemption Percentage specified on the
face hereof multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary of
the Redemption Commencement Date by an amount equal to the Annual Redemption
Percentage Reduction, if any, specified on the face hereof until the Redemption
Price is equal to 100% of the unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the Holder hereof upon the presentation and surrender
hereof.
This Note will be subject to repayment by the Corporation at the
option of the Holder hereof on the Optional Repayment Date(s), if any, specified
on the face hereof, in whole or in part in increments of U.S.$1,000 or the
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S.$1,000 or such minimum Authorized Denomination), at
a repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued hereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, this Note must be
received, together with the form hereon entitled "Option to Elect Repayment"
duly completed, by the Trustee at its Corporate Trust Office in the Borough of
Manhattan, The City of New York (or at such other address of which the
Corporation shall from time to time designate and notify holders of the Notes)
not more than 60 nor less than 30 calendar days prior to the Repayment Date.
Exercise of such repayment option by the Holder hereof will be irrevocable. In
the event of repayment of this Note in part only, a new Note of like tenor for
the unrepaid portion hereof and otherwise having the same terms as this Note
shall be issued in the name of the Holder hereof upon the presentation and
surrender hereof.
If this is a Global Security representing Book-Entry Notes, only the
Depositary may exercise the repayment option in respect of this Note.
Accordingly, if this is a Global Security representing Book-Entry Notes and the
beneficial owner desires to have all or any portion of the Book-Entry Note
represented by this Global Security repaid, the beneficial owner must instruct
the Participant through which he owns his interest to direct the Depositary to
exercise the repayment option on his behalf by delivering this Note and duly
completed election form to the Trustee as aforesaid.
26
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the Holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(i) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this Note
(if applicable), multiplied by the Initial Redemption Percentage (as adjusted by
the Annual Redemption Percentage Reduction, if applicable) and (ii) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-
day year convention, a compounding period that, except for the Initial Period
(as defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption that
the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial Period")
is shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become due and payable in the manner, with the
effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions requiring the consent of the holders of
each of the affected Securities, at such time as the Notes are the only
Securities then outstanding under the Indenture, the Indenture or the Notes may
be amended or supplemented with the consent of the holders of not less than a
majority in principal amount of the Notes then outstanding affected by such
amendment or supplement. Any past default or compliance with any provision as to
the Notes may be waived with the consent of the holders of a majority in
principal amount of the Notes then outstanding. Without the consent of any
holder of Notes, the Corporation and the Trustee may amend or supplement the
Indenture or the Notes to, among other things,
27
cure any ambiguity, defect or inconsistency or to make any change that does not
materially adversely affect the rights of any holder.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in the
security register of the Corporation upon surrender of this Note for
registration of transfer at the office or agency of the Corporation in any place
where the principal hereof and any premium or interest hereon are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Trustee duly executed by, the Holder
hereof or by his attorney duly authorized in writing, and thereupon one or more
new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denominations but otherwise
having the same terms and conditions, as requested by the Holder hereof
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Note,
the Corporation, the Trustee, any paying agent and any security registrar may
deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the security registrar)
for the purpose of receiving payment of or on account of the principal hereof
(and premium, if any) and interest due hereon and for all other purposes, and
neither the Corporation nor the Trustee nor any paying agent nor any security
registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present or future, as
such, of the Corporation or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or
28
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Indenture and the Notes are deemed to be a contract made under the
laws of the State of New York, and for all purposes shall be construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws.
29
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to ___% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office in the Borough of Manhattan, The City of New York, currently
located at 111 Wall Street, 15th Floor, New York, N.Y. 10043, not more than 60
nor less than 30 calendar days prior to the Repayment Date, this Note with this
"Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion thereof (which shall be in increments of U.S.$1,000 (or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof)) which the Holder elects
to have repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount to be Repaid: $_____________
Date:____________ __________________________________
(Signature)
Notice: The signature(s) on this Option to Elect Repayment
must correspond with the name(s) as written upon the
face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
30
EXHIBIT 4.2
FORM OF
FIXED RATE MEDIUM-TERM NOTE
[FACE OF NOTE]
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (THE "DEPOSITARY") OR A NOMINEE THEREOF. THIS NOTE IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY, TO THE CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN./1/
- ----------------
/1/ These paragraphs apply to global Notes only.
AMGEN INC.
MEDIUM-TERM NOTE
(Fixed Rate)
REGISTERED No.: CUSIP No.:__________ PRINCIPAL AMOUNT:
FXR-______ $_____________
ORIGINAL ISSUE DATE: INTEREST RATE: ___ % STATED MATURITY:
DEFAULT RATE: ___% per annum
INTEREST PAYMENT DATE(S): RECORD DATE(S):
[_] June 1 and December 1 [_] Fifteenth day (whether or not a
[_] Other: Business Day) immediately preceding
the related Interest Payment Date
[_] Other:
REDEMPTION COMMENCEMENT INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: ___% PERCENTAGE
REDUCTION: ___%
OPTIONAL REPAYMENT [_] CHECK IF AN ORIGINAL ISSUE DISCOUNT NOTE
DATE(S): Issue Price: $___________
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[_] United States dollars [_] $1,000 and integral AGENT (if other than
[_] Other: multiples thereof CITIBANK, N.A.):
[_] Other:
ADDENDUM ATTACHED: OTHER/ADDITIONAL PROVISIONS:
[_] Yes
[_] No
2
Amgen Inc., a Delaware corporation (the "Corporation", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ____________, or registered
assigns, the principal sum of ______________, on the Stated Maturity specified
above (or any Redemption Date or Repayment Date, each as defined on the reverse
hereof) (each such Stated Maturity, Redemption Date or Repayment Date being
hereinafter referred to as the "Maturity Date" with respect to the principal
repayable on such date) and to pay interest thereon, at the Interest Rate per
annum specified above, until the principal hereof is paid or duly made available
for payment, and (to the extent that the payment of such interest shall be
legally enforceable) at the Default Rate per annum specified above on any
overdue principal, premium and/or interest. The Corporation will pay interest
in arrears on each Interest Payment Date, if any, specified above (each, an
"Interest Payment Date"), commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above, and on the Maturity Date;
provided, however, that unless otherwise specified on the face hereof, if the
Original Issue Date occurs between a Record Date (as defined below) and the next
succeeding Interest Payment Date, interest payments will commence on the second
Interest Payment Date next succeeding the Original Issue Date to the registered
holder of this Note (the "Holder") on the Record Date with respect to such
second Interest Payment Date. Interest on this Note will be computed on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions."
Interest on this Note will accrue from and including the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from and including the Original Issue Date if no interest has been paid
or duly provided for) to but excluding the applicable Interest Payment Date or
the Maturity Date, as the case may be (each, an "Interest Period"). Unless
otherwise specified on the face hereof, the interest so payable and punctually
paid or duly provided for on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on the
fifteenth day (whether or not a Business Day, as defined below) immediately
preceding such Interest Payment Date (the "Record Date"); provided, however,
that interest payable on the Maturity Date will be payable to the person to whom
the principal hereof and premium, if any, hereon
3
shall be payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the Holder on any
Record Date, and shall be paid to the person in whose name this Note is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee (as defined on the reverse hereof), notice whereof shall be given to the
Holder of this Note by the Trustee not less than 15 calendar days prior to such
Special Record Date.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at (i) the corporate trust office of the Trustee currently
located at Citibank, N.A., 111 Wall Street, 15th Floor, New York, N.Y. 10043 or
(ii) the office or agency maintained by the Corporation for such purpose in the
Borough of Manhattan, The City of New York, currently the offices of the Trustee
located at Citibank, N.A., 111 Wall Street, 15/th/ Floor, New York, N.Y. 10043;
provided, however, that if such payment is to be made in a Specified Currency
other than United States dollars as set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the Holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed repayment election form) is presented
and surrendered at the aforementioned office of the Trustee in time for the
Trustee to make such payment in such funds in accordance with its normal
procedures. Unless otherwise specified on the face hereof, payment of interest
due on any Interest Payment Date other than the Maturity Date will be made at
the office or agency referred to above maintained by the Corporation for such
purpose or, at the option of the Corporation, may be made by check mailed to the
address of the person entitled thereto as such address shall appear in the
security register of the Corporation maintained at the aforementioned office of
the Trustee; provided, however, that a holder of U.S. $10,000,000 (or, if the
Specified Currency specified above is other than United States dollars, the
equivalent thereof in the Specified Currency) or more in aggregate principal
amount of Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments on such Interest Payment Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such Holder.
4
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day except a Saturday, Sunday
or a legal holiday in The City of New York on which banking institutions are
authorized or required by law, regulation or executive order to close; provided,
however, that if the Specified Currency is other than United States dollars and
any payment is to be made in the Specified Currency in accordance with the
provisions hereof, such day is also not a day on which banking institutions are
authorized or required by law, regulation or executive order to close in the
Principal Financial Center (as defined below) of the country issuing the
Specified Currency (or, in the case of European Currency Units ("ECU"), is not a
day that appears as an ECU non-settlement day on the display designated as
"ISDE" on the Reuter Monitor Money Rates Service (or a day so designated by the
ECU Banking Association) or, if ECU non-settlement days do not appear on that
page (and are not so designated), is not a day on which payments in ECU cannot
be settled in the international interbank market). "Principal Financial Center"
means the capital city of the country issuing the Specified Currency, except
that with respect to United States dollars, Australian dollars, Canadian
dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss francs and ECU, the
"Principal Financial Center" shall be The City of New York, Sydney, Toronto,
Frankfurt, Amsterdam, Milan, Zurich and Luxembourg, respectively.
The Corporation is obligated to make payments of principal, premium,
if any, and interest, if any, in respect of this Note in the Specified Currency
(or, if the Specified Currency is not at the time of such payment legal tender
for the payment of public and private debts, in such other coin or currency of
the country which issued the Specified Currency as at the time of such payment
is legal tender for the payment of such debts). If the Specified Currency is
other than United States dollars, any such amounts so payable by the Corporation
will be converted by the Exchange Rate Agent specified above into United States
dollars for payment to the Holder of this Note; provided, however, that the
Holder of this Note may elect to receive such amounts in such Specified Currency
pursuant to the provisions set forth below.
5
If the Specified Currency is other than United States dollars and the
Holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest,
if any, in respect of this Note in the Specified Currency, any United States
dollar amount to be received by the Holder of this Note will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Corporation for the purchase by the quoting
dealer of the Specified Currency for United States dollars for settlement on
such payment date in the aggregate amount of the Specified Currency payable to
all holders of Notes scheduled to receive United States dollar payments and at
which the applicable dealer commits to execute a contract. All currency
exchange costs will be borne by the Holder of this Note by deductions from such
payments. If three such bid quotations are not available, payments on this Note
will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest, if any, in respect of
this Note in the Specified Currency by submitting a written request for such
payment to the Trustee at its Corporate Trust Office in the Borough of
Manhattan, The City of New York on or prior to the applicable Record Date or at
least 15 calendar days prior to the Maturity Date, as the case may be. Such
written request may be mailed or hand delivered or sent by cable, telex or other
form of facsimile transmission. The Holder of this Note may elect to receive
all or a specified portion of all future payments in the Specified Currency in
respect of such principal, premium, if any, and/or interest, if any, and need
not file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice of any
such revocation must be received by the Trustee on or prior to the applicable
Record Date or at least 15 calendar days prior to the Maturity Date, as the case
may be.
If the Specified Currency is other than United States dollars or a
composite currency and the Holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest, if any, in respect of this Note in the Specified Currency
and if the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Corporation, or is no
longer used by the
6
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Corporation will be entitled to satisfy its obligations to the Holder
of this Note by making such payment in United States dollars on the basis of the
Market Exchange Rate (as defined below) on the second Business Day prior to such
payment date or, if such Market Exchange Rate is not then available, on the
basis of the most recently available Market Exchange Rate; provided, however,
that if such Specified Currency is replaced by a single European currency, the
payment of principal of, premium, if any, or interest, if any, on this Note
denominated in such currency shall be effected in the new single European
currency in conformity with legally applicable measures taken pursuant to, or by
virtue of, the treaty establishing the European Community, as amended by the
treaty on European Unity. The "Market Exchange Rate" for the Specified Currency
means the noon dollar buying rate in The City of New York for cable transfers
for the Specified Currency as certified for customs purposes by (or if not so
certified, as otherwise determined by) the Federal Reserve Bank of New York. Any
payment made under such circumstances in United States dollars or a new single
European currency where the required payment is in a Specified Currency other
than United States dollars or such single European currency, respectively, will
not constitute an Event of Default (as defined in the Indenture) under the
Indenture with respect to the Notes.
If the Specified Currency is a composite currency and the Holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest, if any, in
respect of this Note in the Specified Currency and if such composite currency is
unavailable due to the imposition of exchange controls or other circumstances
beyond the control of the Corporation, then the Corporation will be entitled to
satisfy its obligations to the Holder of this Note by making such payment in
United States dollars. The amount of each payment in United States dollars
shall be computed by the Exchange Rate Agent on the basis of the equivalent of
the composite currency in United States dollars. The component currencies of
the composite currency for this purpose (collectively, the "Component
Currencies" and each, a "Component Currency") shall be the currency amounts that
were components of the composite currency as of the last day on which the
composite currency was used. The equivalent of the composite currency in United
States dollars shall be calculated by aggregating the United States dollar
equivalents of the Component Currencies. The United States dollar equivalent of
each of the Component Currencies shall be determined by the Exchange Rate Agent
on the basis of the most recently available Market Exchange Rate for each such
Component Currency, or as otherwise specified on the face hereof. Any
7
payment made under such circumstances in United States dollars where the
required payment is in a Specified Currency that is a composite currency will
not constitute an Event of Default (as defined in the Indenture) under the
Indenture with respect to the Notes.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Unless the Certificate of Authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
8
IN WITNESS WHEREOF, the Corporation has caused this Note to be duly
executed under its corporate seal.
AMGEN INC.
By: ________________________________
Name:
Title:
(SEAL)
Dated:
9
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities referred to in the within-mentioned
Indenture.
CITIBANK, N.A.,
as Trustee
By: ____________________________
Authorized Signatory
10
[REVERSE OF NOTE]
AMGEN INC.
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Corporation issued and to be issued under an Indenture,
dated as of January 1, 1992, as supplemented by a First Supplemental Indenture,
dated as of February 26, 1997 (as amended or supplemented from time to time, the
"Indenture"), between the Corporation and Citibank N.A., as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Corporation, the Trustee and the holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes" (the "Notes"). All terms used but not defined
in this Note specified on the face hereof or in an Addendum hereto shall have
the meanings assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or repayable prior to the
Stated Maturity.
This Note will be subject to redemption at the option of the
Corporation on any date on or after the Redemption Commencement Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S.$1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S.$1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(each, a "Redemption Date"), on notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the provisions
of the Indenture. The "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face hereof multiplied by the unpaid
principal amount of this Note to be redeemed. The
11
Initial Redemption Percentage shall decline at each anniversary of the
Redemption Commencement Date by an amount equal to the Annual Redemption
Percentage Reduction, if any, specified on the face hereof until the Redemption
Price is equal to 100% of the unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the Holder hereof upon the presentation and surrender
hereof.
This Note will be subject to repayment by the Corporation at the
option of the Holder hereof on the Optional Repayment Date(s), if any, specified
on the face hereof, in whole or in part in increments of U.S.$1,000 or the
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S.$1,000 or such minimum Authorized Denomination), at
a repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued hereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, this Note must be
received, together with the form hereon entitled "Option to Elect Repayment"
duly completed, by the Trustee at its Corporate Trust Office in the Borough of
Manhattan, The City of New York (or at such other address of which the
Corporation shall from time to time designate and notify holders of the Notes)
not more than 60 nor less than 30 calendar days prior to the Repayment Date.
Exercise of such repayment option by the Holder hereof will be irrevocable. In
the event of repayment of this Note in part only, a new Note of like tenor for
the unrepaid portion hereof and otherwise having the same terms as this Note
shall be issued in the name of the Holder hereof upon the presentation and
surrender hereof.
If this is a Global Security representing Book-Entry Notes, only the
Depositary may exercise the repayment option in respect of this Note.
Accordingly, if this is a Global Security representing Book-Entry Notes and the
beneficial owner desires to have all or any portion of the Book-Entry Note
represented by this Global Security repaid, the beneficial owner must instruct
the Participant through which he owns his interest to direct the Depositary to
exercise the repayment option on his behalf by delivering this Note and duly
completed election form to the Trustee as aforesaid.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the Holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(i) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined
12
below) and, in the event of any redemption of this Note (if applicable),
multiplied by the Initial Redemption Percentage (as adjusted by the Annual
Redemption Percentage Reduction, if applicable) and (ii) any unpaid interest on
this Note accrued from the Original Issue Date to the Redemption Date, Repayment
Date or date of acceleration of maturity, as the case may be. The difference
between the Issue Price and 100% of the principal amount of this Note is
referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-
day year convention, a compounding period that, except for the Initial Period
(as defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption that
the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial Period")
is shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable in the manner, with the
effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions requiring the consent of the holders of
each of the affected Securities, at such time as the Notes are the only
Securities then outstanding under the Indenture, the Indenture or the Notes may
be amended or supplemented with the consent of the holders of not less than a
majority in principal amount of the Notes then outstanding affected by such
amendment or supplement. Any past default or compliance with any provision as to
the Notes may be waived with the consent of the holders of a majority in
principal amount of the Notes then outstanding. Without the consent of any
holder of Notes, the Corporation and the Trustee may amend or supplement the
Indenture or the Notes to, among other things, cure any ambiguity, defect or
inconsistency or to make any change that does not materially adversely affect
the rights of any holder.
13
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in the
security register of the Corporation upon surrender of this Note for
registration of transfer at the office or agency of the Corporation in any place
where the principal hereof and any premium or interest hereon are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Trustee duly executed by, the Holder
hereof or by his attorney duly authorized in writing, and thereupon one or more
new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denominations but otherwise
having the same terms and conditions, as requested by the Holder hereof
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Note,
the Corporation, the Trustee, any paying agent and any security registrar may
deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the security registrar)
for the purpose of receiving payment of or on account of the principal hereof
(and premium, if any) and interest due hereon and for all other purposes, and
neither the Corporation nor the Trustee nor any paying agent nor any security
registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present or future, as
such, of the Corporation or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
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The Indenture and the Notes are deemed to be a contract made under the
laws of the State of New York, and for all purposes shall be construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to _____% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
---------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office in the Borough of Manhattan, The City of New York, currently
located at 111 Wall Street, 15/th/ Floor, New York, N.Y. 10043, not more than 60
nor less than 30 calendar days prior to the Repayment Date, this Note with this
"Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion thereof (which shall be in increments of U.S.$1,000 (or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof)) which the Holder elects
to have repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount to be Repaid: $_________________
Date:____________ ____________________________
Signature
Notice: The signature(s) on this Option to Elect Repayment
must correspond with the name(s) as written upon the
face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
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