As filed with the Securities and Exchange Commission on April 2, 1998
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Bristol-Myers Squibb Company
(Exact name of registrant as specified in its charter)
Delaware 22-079-0350
(State of Incorporation) (I.R.S. Employer Identification No.)
345 Park Avenue
New York, N.Y. 10154
(212) 546-4000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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John L. McGoldrick, Esq. Alice C. Brennan, Esq.
Senior Vice President, Law and Vice President and Secretary
Strategic Planning and General Counsel 345 Park Avenue
345 Park Avenue New York, NY 10154
New York, NY 10154 (212) 546-4000
(212) 546-4000
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Susan Webster, Esq. [Underwriter's Counsel]
Cravath, Swaine & Moore [ ]
Worldwide Plaza [ ]
825 Eighth Avenue [ ]
New York, NY 10019 [ ]
(212) 474-1000
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Approximate date of commencement of proposed sale to public: From time
to time after the effective date of this registration statement, as
determined by the registrant in light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box.[ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering.[ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.[ ]
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If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.[X]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Amount to be Registered Maximum Maximum Amount of
Title of Each Class of Offering Price Aggregate Registration
Securities to be Registered Per Unit* Offering Price* Fee
<S> <C> <C> <C> <C>
Debt Securities................... $1,000,000,000** 100% $1,000,000,000 $295,000
===================================================================================================================
</TABLE>
* Estimated solely for the purpose of calculating the registration fee.
Excludes accrued interest and accrued amortization of discount, if
any, to the date of delivery.
** Plus an additional principal amount of Debt Securities issued with
original issue discount such that the aggregate initial public
offering price of all Debt Securities will not exceed $1,000,000,000
(the initial public offering price of any Debt Securities denominated
in any foreign currencies or units based on or related to currencies
shall be the U.S. dollar equivalent thereof).
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The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that
this registration statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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<PAGE>
SUBJECT TO COMPLETION, DATED April 2, 1998
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
PROSPECTUS
BRISTOL-MYERS SQUIBB COMPANY
345 Park Avenue
New York, NY 10154
(212) 546-4000
$1,000,000,000
Debt Securities
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We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully
before you invest.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon
the adequacy or accuracy of this prospectus. Any representation to the
contrary is a criminal offense.
The date of this prospectus is April 2, 1998
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the SEC utilizing a "shelf" registration process. Under this shelf process,
we may sell any combination of the securities described in this prospectus
in one or more offerings up to a total dollar amount of $1,000,000,000.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with additional
information described under the heading WHERE YOU CAN FIND MORE
INFORMATION.
We are participating in the SEC's plain English program. This is an
initiative launched by the SEC to make prospectuses and other information
more understandable to the general investor.
WHERE YOU CAN FIND MORE
INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public
over the Internet at the SEC's web site at http://www.sec.gov. You may also
read and copy any document we file at the SEC's public reference rooms in
Washington, D.C., New York, New York and Chicago, Illinois. Please call the
SEC at 1-800-SEC-0330 for further information on the public reference
rooms.
The SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to
you by referring you to those documents. The information incorporated by
reference is an important part of this prospectus, and information that we
file later with the SEC will automatically update and supersede this
information. We incorporate by reference any future filings we make with
the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the securities and these
documents, which we have already filed with the SEC:
o Annual Report on Form 10-K for the year ended December 31, 1997.
You may request a copy of these filings, at no cost, by writing or
telephoning us at our principal executive offices at the following address:
Bristol-Myers Squibb Company
345 Park Avenue
New York, NY 10154
Attention: Secretary
(212) 546-4000
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are
not making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or
any prospectus supplement is accurate as of any date other than the date on
the front of those documents.
We have filed exhibits with this registration statement that include
the form of proposed underwriting agreement and indenture. You should read
the exhibits carefully for provisions that may be important to you.
<PAGE>
THE COMPANY
Bristol-Myers Squibb Company is a worldwide organization engaged
primarily in the manufacture and sale of a broad range of pharmaceutical
products, consumer medicines, nutritional products, medical devices, and
beauty care products. Our principal business segments are:
o Pharmaceuticals, consisting of prescription medicines, primarily
cardiovascular, anti-cancer, anti- infective and central nervous
system drugs and other pharmaceutical products;
o Consumer Medicines, consisting primarily of analgesics, skin care
products, cough/cold remedies, deodorants and anti-perspirants;
o Nutritionals, consisting primarily of infant formulas and other
nutritional products;
o Medical Devices, consisting primarily of orthopaedic implants, ostomy
and wound care products, surgical instruments and other medical
devices;
o Beauty Care, consisting primarily of hair coloring and hair care
preparations.
All references to us in this prospectus include Bristol-Myers Squibb
Company and its subsidiaries, unless the context otherwise requires.
USE OF PROCEEDS
We will use the net proceeds from the sale of the offered securities
for general corporate purposes including working capital, capital
expenditures, stock purchase programs, repayment and refinancing of debt
and acquisitions. We may invest funds not required immediately for such
purposes in marketable securities and short-term investments.
RATIO OF EARNINGS TO FIXED
CHARGES
Our ratio of earnings to fixed charges for each of the years ended is
as follows:
1993 1994 1995 1996 1997
22.67 20.84 16.20 30.40 27.46
This ratio shows the coverage of earnings before income taxes to fixed
charges, which consist primarily of interest and debt expense. Excluding
the impact of special charges, the ratio of earnings to fixed charges for
1993, 1994 and 1995 would have been 26.91, 26.70 and 24.23.
For purposes of computing the ratio of earnings to fixed charges,
"earnings" consist of income from continuing operations before provision
for income taxes and fixed charges, excluding capitalized interest. "Fixed
charges" consist of interest and debt expense, capitalized interest and
one-third of rental expense, which we believe is a reasonable approximation
of the interest factor of such rental expense.
DESCRIPTION OF DEBT SECURITIES
The debt securities covered by this prospectus will be our direct
unsecured obligations. The debt securities will be issued in one or more
series under an indenture (the "indenture") between us and The Chase
Manhattan Bank as Trustee.
This prospectus briefly outlines some of the indenture provisions. The
indenture has been filed as an exhibit to the registration statement and
you should read the indenture for provisions that may be important to you.
In the summary below, we have included
<PAGE>
references to section numbers of the indenture so that you can easily
locate these provisions.
General
The debt securities will rank equally with all of our other unsecured
and unsubordinated debt. The indenture does not limit the amount of debt we
may issue under the indenture or otherwise. We may issue the debt
securities in one or more series with the same or various maturities, at
par or a premium or with original issue discount.
The prospectus supplement relating to any series of debt securities
being offered will include specific terms relating to the offering. These
terms will include some or all of the following:
o The title and type of the debt securities;
o The total principal amount of the debt securities;
o The percentage of the principal amount at which the debt securities
will be issued and any payments due if the maturity of the debt
securities is accelerated;
o The date or dates on which the principal of the debt securities will
be payable;
o Whether the debt securities will be denominated in, and whether the
principal of and any premium and any interest on the debt securities
will be payable in, any foreign currency or foreign currency units;
o The interest rate or rates, if any, which the debt securities will
bear, the date or dates from which any interest will accrue, the
interest payment dates for the debt securities and the regular record
date for any interest payable on any interest payment date;
o Any optional or mandatory redemption periods;
o Any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the debt securities;
o Whether the debt securities are to be issued in individual
certificates to each holder or in the form of global securities held
by a depository on behalf of holders;
o Any changes to or additional Events of Default or covenants;
o Any special tax implications of the debt securities, including
provisions for original issue discount securities, if offered;
o Any terms upon which the debt securities may be convertible into or
exchanged for other debt securities or indebtedness or other
securities of any other issuer or obligor; and
o Any other specific terms of the debt securities.
Consolidation, Merger or Sale
We have agreed not to consolidate with or merge into any other
corporation or convey or transfer substantially all of our properties and
assets to any person, unless
(a) the successor corporation is organized and existing under the laws
of the United States or any State or the District of Columbia;
(b) the successor corporation expressly assumes by a supplemental
indenture the due and punctual payment of the principal of and any premium
or any interest on all
<PAGE>
the debt securities and the performance of every covenant in the indenture
that we would otherwise have to perform;
(c) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, will occur and be continuing; and
(d) we deliver to the trustee an officers' certificate and an opinion
of counsel, each stating that the consolidation, merger, conveyance or
transfer and the supplemental indenture comply with these provisions.
The successor corporation will assume all our obligations under the
indenture as if it were an original party to the indenture. After assuming
such obligations, the successor corporation will have all our rights and
powers under the indenture. (Sections 801 & 802)
Modification of indentures
Under the indenture our rights and obligations and the rights of the
holders may be modified if the holders of not less than a majority in
aggregate principal amount of the outstanding debt securities of each
series affected by the modification consent to it. No modification of the
principal or interest payment terms, and no modification reducing the
percentage required for modifications, is effective against any holder
without its consent. (Sections 901 & 902.)
Events of Default
When we use the term "Event of Default" in the indenture, here are
some examples of what we mean.
An Event of Default occurs if:
o we fail to pay the principal or any premium on any Debt Security when
due;
o we fail to deposit any sinking fund payment when due;
o we fail to pay interest when due on any Debt Security for 30 days;
o we fail to perform any other covenant in the indenture and this
failure continues for 90 days after we receive written notice of it;
o we or a court take certain actions relating to the bankruptcy,
insolvency or reorganization of our company:
The supplemental indenture or the form of security for a particular
series of debt securities may include additional Events of Default or
changes to the Events of Default described above. For the Events of Default
applicable to a particular series of debt securities, see the prospectus
supplement relating to such series. A default under our other indebtedness
will not be a default under the indenture, and a default under one series
of debt securities will not necessarily be a default under another series.
The Trustee may withhold notice to the holders of debt securities of any
default (except in the payment of principal or interest) if it considers
such withholding of notice to be in the best interests of the holders.
(Section 602.)
If an Event of Default for any series of debt securities occurs and
continues, the Trustee or the holders of at least 25% in aggregate
principal amount of the debt securities of the series may require us to
repay immediately:
o the entire principal of the debt securities of such series; or
<PAGE>
o if the debt securities are discounted securities, such portion of the
principal as may be described in the applicable prospectus supplement.
Subject to certain conditions, the holders of a majority of the
aggregate principal amount of the debt securities of the affected series
can rescind this accelerated payment requirement. (Section 502.)
Other than its duties in case of a default, the Trustee is not
obligated to exercise any of its rights or powers under the indenture at
the request, order or direction of any holders, unless the holders offer
the Trustee reasonable indemnity. (Section 603.) If they provide this
reasonable indemnity, the holders of a majority in principal amount of any
series of debt securities may, subject to certain limitations, direct the
time, method and place of conducting any proceeding or any remedy available
to the Trustee, or exercising any power conferred upon the Trustee, for any
series of debt securities. (Section 512.)
Certain Restrictive Covenants
We have agreed to certain restrictions on our activities for the
benefit of holders of the debt securities. The restrictive covenants
summarized below will apply (unless waived or amended) so long as any of
the debt securities are outstanding, unless the prospectus supplement
states otherwise. We have provided a Glossary at the end of this prospectus
to define the capitalized words used in discussing the covenants. In the
covenants, all references to us mean Bristol-Myers Squibb Company only.
Limitation on Liens. We have agreed not to create any mortgages or
other liens upon any Restricted Property without securing the debt
securities equally and ratably with all other indebtedness secured by such
lien. This covenant has certain exceptions, which permit:
(a) mortgages and liens on Restricted Property of corporations
existing at the time they become Subsidiaries;
(b) mortgages and liens on Restricted Property existing at the time
the property was acquired, or incurred to finance the purchase price,
construction, alteration, repair or improvement thereof;
(c) any mortgages and liens securing Debt of a Subsidiary that the
subsidiary owes to us or another Subsidiary;
(d) any mortgages and liens securing industrial development, pollution
control, or similar revenue bonds; and
(e) mortgages and liens otherwise prohibited by this covenant,
securing Debt which, together with the aggregate outstanding principal
amount of all other Debt of the Company and its Subsidiaries owning
Restricted Property which would otherwise be subject to such covenant and
the Value of certain existing Sale and Leaseback Transactions, does not
exceed 10% of Consolidated Net Tangible Assets. (Section 1006.)
Limitation on Sale and Leaseback Transactions. Neither we nor any
Subsidiary owning Restricted Property may enter into any Sale and Leaseback
Transaction covering Restricted Property unless we could incur Debt in a
principal amount equal to the Value of such Sale and Leaseback Transaction
and, without violating the "Limitation on Liens" covenant, secure such Debt
by liens on the facilities to be leased without equally and ratably
securing the debt securities. We, or any such Subsidiary, may also enter
into a Sale and Leaseback Transaction if, during the six months following
the effective date of such Sale and Leaseback Transaction, we
<PAGE>
apply an amount equal to the Value of such Sale and Leaseback Transaction
to the acquisition of Restricted Property or to the voluntary retirement of
debt securities or Funded Debt. We will receive a credit toward the amount
required to be applied to such acquisition of property or retirement of
indebtedness for the principal amount of any debt securities or Funded Debt
delivered to the Trustee for retirement and cancelation during the six
months immediately following the effective date of such Sale and Leaseback
Transaction. (Section 1007.)
General. Because the covenants described above cover only
manufacturing facilities in the continental United States, these covenants
do not restrict our activities with respect to approximately 37% of the net
book value of our facilities worldwide.
We do not have any mortgages or liens prohibited by the covenants
described above on any of our properties that would qualify as Restricted
Property, nor have we entered into any prohibited Sale and Leaseback
Transactions covering such properties. We do not keep records identifying
which of our properties, if any, would qualify as Restricted Property. We
will amend this prospectus to disclose or disclose in the prospectus
supplement the existence of any mortgage or lien on or any Sale and
Leaseback Transaction covering any Restricted Property which would require
us to secure the debt securities or apply certain amounts to retirement of
indebtedness or acquisitions of property.
Other than the restrictions on liens and Sale and Leaseback
Transactions described above, the indenture and the debt securities do not
contain any covenants or other provisions designed to protect holders of
the debt securities in the event of a highly leveraged transaction
involving the Company.
Payment and Transfer
We will pay principal, interest and any premium on fully registered
securities at the place or places designated by us for such purposes. We
will make payment to the persons in whose names the debt securities are
registered on the close of business on the day or days specified by us. We
will make debt securities payments in other forms at a place designated by
us and specified in a prospectus supplement. (Sections 301 & 307.)
Holders may transfer or exchange fully registered securities at the
corporate trust office of the Trustee or at any other office or agency
maintained by us for such purposes, without the payment of any service
charge except for any tax or governmental charge. (Section 1002.)
Global Securities
We may issue some or all of the debt securities of a series in the
form of one or more global securities. Global securities will be deposited
with the depository identified in the applicable prospectus supplement. A
global security is a security, typically held by a depository, that
represents the beneficial interests of a number of purchasers of such
security. Unless exchanged in whole or in part for debt securities in
definitive form, a global security may not be transferred except as a
whole:
o to a nominee of the depository for such global security;
o by a nominee of such depository to such depository; or
o to a successor of such depository or a nominee of such successor.
<PAGE>
We may, however, issue notes in certificate form registered in the name of
the noteholders. (Section 204.)
Unless otherwise stated, The Depository Trust Company, New York, New
York ("DTC") will act as depository for each series of global securities.
Beneficial interests in global securities will be shown on, and transfers
of global securities will be effected only through, records maintained by
DTC and its participants.
DTC has provided the following information to us: DTC is a
limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a
member of the United States Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and
a "clearing agency" registered under the provisions of Section 17A of the
Securities Exchange Act of 1934. DTC holds securities that its participants
("Direct Participants") deposit with DTC. DTC also facilitates the
settlement among Direct Participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic
computerized book-entry changes in such Direct Participant's accounts. This
eliminates the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations.
DTC is owned by a number of its Direct Participants and by the New
York Stock Exchange, Inc., The American Stock Exchange, Inc. and The
National Association of Securities Dealers, Inc. Securities brokers and
dealers, banks, trust companies and others that clear through or maintain a
custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"), also have access to DTC's book-entry
system. You can find the rules applicable to DTC and its Direct and
Indirect Participants on file with the SEC.
Principal and interest payments on global securities registered in the
name of DTC's nominee will be made in immediately available funds to DTC's
nominee as the registered owner of the global securities. We and the
Trustee will treat DTC's nominee as the owner of the global securities for
all other purposes as well. Accordingly, we, the Trustee and any paying
agent will have no direct responsibility or liability to pay amounts due on
the global securities to owners of beneficial interests in the global
securities. It is DTC's current practice, upon receipt of any payment of
principal or interest, to credit Direct Participants' accounts on the
payment date according to their respective holdings of beneficial interests
in the global securities as shown on DTC's records. Payments by Direct and
Indirect Participants to owners of beneficial interests in the global
securities will be governed by standing instructions and customary
practices, as is the case with securities held for the account of customers
in bearer form or registered in "street name". Such payments will be the
responsibility of such Direct and Indirect Participants and not of DTC, the
Trustee or us.
Debt securities represented by a global security will be exchangeable
for debt securities in definitive form of like tenor in authorized
denominations only if DTC notifies us that it is unwilling or unable to
continue as Depository or if DTC ceases to be a clearing agency registered
under applicable law and a successor depository is not appointed by us
within 90 days or we, in our discretion, determine not to require all of
the debt securities of a series to be represented by a global security and
notify the Trustee of our decision.
<PAGE>
Defeasance
When we use the term defeasance, we mean discharge from some or all of
our obligations under the indenture. If we deposit with the Trustee
sufficient cash or government securities to pay the principal, interest,
any premium and any other sums due to the stated maturity date or a
redemption date of the debt securities of a particular series, then at our
option:
o we will be discharged from our obligations with respect to the debt
securities of such series or
o we will no longer be under any obligation to comply with certain
restrictive covenants under the indenture, and certain Events of
Default will no longer apply to us.
If this happens, the holders of the debt securities of the affected
series will not be entitled to the benefits of the indenture except for
registration of transfer and exchange of debt securities and replacement of
lost, stolen or mutilated debt securities. Such holders may look only to
such deposited funds or obligations for payment.
We must deliver to the Trustee an opinion of counsel to the effect
that the deposit and related defeasance would not cause the holders of the
debt securities to recognize income, gain or loss for Federal income tax
purposes. We must also deliver a ruling to such effect received from or
published by the United States Internal Revenue Service if we are
discharged from our obligations with respect to the debt securities.
(Section 403.)
Concerning the Trustee
The Trustee has loaned money to us in the past and may do so in the
future as a part of its regular business.
PLAN OF DISTRIBUTION
We may sell the offered securities (a) through underwriters or
dealers; (b) through agents; or (c) directly to one or more purchasers.
Sale Through Underwriters
If we use underwriters in the sale, such underwriters will acquire the
debt securities for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the
time of sale. The obligations of the underwriters to purchase the
securities will be subject to certain conditions. The underwriters will be
obligated to purchase all the securities of the series offered if any of
the securities are purchased. The underwriters may change from time to time
any initial public offering price and any discounts or concessions allowed
or re-allowed or paid to dealers.
Sale Through Agents
We may sell offered securities through agents designated by us. Unless
indicated in the prospectus supplement, the agents have agreed to use their
reasonable best efforts to solicit purchases for the period of their
appointment.
Direct Sales
We also may sell offered securities directly. In this case, no
underwriters or agents would be involved.
General Information
Underwriters, dealers and agents that participate in the distribution
of the offered securities may be underwriters as defined in the Securities
Act of 1933 (the "Act"), and any discounts or commissions received by them
from us and any profit on the resale of
<PAGE>
the offered securities by them may be treated as underwriting discounts and
commissions under the Act. We will identify any underwriters or agents, and
describe their compensation, in a prospectus supplement.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities
under the Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make. Underwriters,
dealers and agents may engage in transactions with, or perform services
for, us or our subsidiaries in the ordinary course of their businesses.
LEGAL OPINIONS
John L. McGoldrick, Esq., who is our Senior Vice President, Law and
Strategic Planning and General Counsel, or another of our lawyers, or
Cravath, Swaine & Moore, our outside counsel, will issue an opinion about
the legality of the offered securities for us. Any underwriters will be
advised about other issues relating to any offering by their own legal
counsel.
EXPERTS
The consolidated financial statements and related schedules
incorporated in this prospectus by reference to the Company's Annual Report
on Form 10-K for the year ended December 31, 1997, have been so
incorporated in reliance on the report of Price Waterhouse LLP, independent
accountants, given upon their authority as experts in auditing and
accounting.
GLOSSARY
We have summarized below definitions of some of the terms used in the
indenture. In the definitions, all references to us mean Bristol-Myers
Squibb Company only.
"Consolidated Net Tangible Assets" means the total amount of our
assets after deducting:
(a) all current liabilities; and
(b) all goodwill, tradenames, trademarks, patents, unamortized debt
discount and expense and other like intangible assets,
all as set forth on our most recent consolidated balance sheet and
determined on a consolidated basis in accordance with generally accepted
accounting principles.
In calculating the total amount of our assets, we must subtract
applicable reserves and other properly deductible items. In calculating our
current liabilities, we must exclude the amount of liabilities which are by
their terms extendable or renewable at the option of the obligor to a date
more than 12 months after the date as of which the amount is being
determined.
"Debt" means:
(a) all obligations represented by notes, bonds, debentures or similar
evidences of indebtedness;
(b) all indebtedness for borrowed money or for the deferred purchase
price of property or services other than, in the case of any such deferred
purchase price, on normal trade terms; and
(c) all rental obligations as lessee under leases which shall have
been or should be, in accordance with generally accepted
<PAGE>
accounting principles, recorded as capital leases.
"Funded Debt" means:
(a) our Debt or Debt of a Subsidiary owning Restricted Property
maturing by its terms more than one year after its creation, and
(b) Debt classified as long-term debt under generally accepted
accounting principles.
The definition of Funded Debt only includes Debt incurred by us
meeting one of the above requirements if it ranks at least equally with the
debt securities.
"Restricted Property" means:
(a) any manufacturing facility, or portion thereof, owned or leased by
us or any of our Subsidiaries and located within the continental United
States which, in our Board of Directors' opinion, is of material importance
to our business and the business of our Subsidiaries taken as a whole, and
(b) any shares of capital stock or indebtedness of any Subsidiary
owning any such manufacturing facility.
In this definition, "manufacturing facility" means property, plant and
equipment used for actual manufacturing and for activities directly related
to manufacturing. The definition excludes sales offices, research
facilities and facilities used only for warehousing, distribution or
general administration. The definition provides that no manufacturing
facility, or portion thereof, shall be deemed of material importance if its
gross book value before deducting accumulated depreciation is less than 2%
of Consolidated Net Tangible Assets.
"Sale and Leaseback Transaction" means any arrangement pursuant to
which we or any Subsidiary leases any Restricted Property that has been or
is to be sold or transferred by us or the Subsidiary to another person,
other than:
(a) temporary leases for a term, including renewals at the option of
the lessee, of three years or less,
(b) leases between us and a Subsidiary or between Subsidiaries,
(c) leases executed within 12 months after the latest of the
acquisition, the completion of construction or improvement, or the
commencement of commercial operation, of such Restricted Property, and
(d) arrangements pursuant to any provision of law with an effect
similar to that under former Section 168(f)(8) of the Internal Revenue Code
of 1954.
"Subsidiary" means a corporation of which we or one or more
corporations meeting this definition owns, directly or indirectly, the
majority of the outstanding voting stock.
"Value" means, with respect to a Sale and Leaseback Transaction, an
amount equal to the present value of the lease payments remaining on the
date as of which the amount is being determined, without regard to any
renewal or extension options contained in the lease. To determine such
present value, we use a discount rate equal to the weighted average
interest rate on the debt securities of all series which are outstanding on
the effective date of the Sale and Leaseback Transaction and which have the
benefit of the covenant limiting Sale and Leaseback Transactions.
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
SEC registration fee................................... $295,000
Fees and expenses of the Trustee....................... 20,000*
Printing and engraving expenses........................ 75,000*
Rating agency fees..................................... 125,000*
Accounting fees........................................ 75,000*
Legal fees............................................. 150,000*
Qualification under state securities laws.............. 1,000*
Miscellaneous.......................................... 10,000*
---------
$751,000*
=========
- ----------
* Estimated and subject to future contingencies.
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with
specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation--a "derivative action"), if they acted in good faith and in
a manner they reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful.
A similar standard is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or
settlement of such action, and the statute requires court approval before
there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is
not exclusive of other indemnification that may be granted by a
corporation's by-laws, disinterested director vote, stockholder vote,
agreement or otherwise.
Under the terms of our Bylaws and subject to the applicable provisions
of Delaware law, we have indemnified each of our directors and officers
and, subject to the discretion of the Board of Directors, any other person,
against expenses incurred or paid in connection with any claim made against
such director or officer or any actual or threatened action, suit or
proceeding in which such director or officer may be involved by reason of
being or having been a director or officer of us, or of serving or having
served at our request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by
reason of any action taken or not taken by such director or officer in such
capacity, and against the amount or amounts paid by such director or
officer in settlement of any such claim, action, suit or proceeding or any
judgment or order entered therein.
Section 102(b)(7) of the DGCL permits a provision in the certificate
of incorporation of each corporation organized thereunder, such as the
Company, eliminating or limiting, with certain exceptions, the personal
<PAGE>
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director. Our Restated
Certificate of Incorporation eliminates the liability of directors to the
extent permitted by the DGCL.
We carry directors' and officers' liability insurance that covers
certain liabilities and expenses of our directors and officers.
Item 16. Exhibits
1 -- Form of proposed Underwriting Agreement.
4.1 -- Indenture, dated as of June 1, 1993, between Bristol-Myers Squibb
Company and The Chase Manhattan Bank, as trustee (Incorporated by
reference to Exhibit 4.2 to the Form 8-K dated May 27, 1993 and
filed on June 3, 1993)
5 -- Opinion with consent of Cravath, Swaine & Moore, counsel to the
Company.
12 -- Statement of computation of ratio of earnings to fixed charges.
23.1 -- Consent of Cravath, Swaine & Moore, counsel to the Company
(included in Exhibit 5).
23.2 -- Consent of Price Waterhouse LLP.
24 -- Powers of Attorney.
25 -- Statement of Eligibility of Trustee.
- ---------------
Item 17. Undertakings.
A. Undertaking Pursuant to Rule 415.
The Company hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement;
provided, however, that paragraphs A(l)(i) and A(l)(ii) do not apply if the
Registration Statement is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in the Registration Statement.
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, each such posteffective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
B. Undertaking Regarding Filings Incorporating Subsequent Exchange Act
Documents by Reference.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed the initial bona fide offering thereof.
C. Undertaking in Respect of Indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of New York, State of New York, on
April 2, 1998.
BRISTOL-MYERS SQUIBB COMPANY,
By:............*.............
Charles A. Heimbold, Jr.
Chairman of the Board,
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
........*........... Corporate Staff Senior Vice President April 2, 1998
(Michael F. Mee) and Chief Financial Officer
(principal financial officer)
........*........... Corporate Staff Senior Vice President April 2, 1998
(Frederick S. Schiff) Financial Operations, and
Controller (principal accounting
officer)
........*........... Director April 2, 1998
(Robert E. Allen)
.................... Director April 2, 1998
(Vance D. Coffman)
........*........... Director April 2, 1998
(Ellen V. Futter)
........*........... Director April 2, 1998
(Louis V. Gerstner, Jr.)
........*........... Director April 2, 1998
Laurie H. Glimcher, M.D.)
........*........... Director April 2, 1998
(John D. Macomber)
.................... Executive Vice President and April 2, 1998
(Kenneth E. Weg) President, Worldwide Medicines
Group and Director
........*........... Director April 2, 1998
(James D. Robinson III)
........*........... Director April 2, 1998
(Andrew C. Sigler)
........*........... Director April 2, 1998
(Louis W. Sullivan, M.D.)
</TABLE>
----------
* The undersigned, by signing her name hereto, does hereby sign this
registration statement or amendment thereto on behalf of each of the
above-indicated directors or officers of Bristol-Myers Squibb Company
pursuant to powers of attorney executed by each such director or
officer.
....../s/ ALICE C. BRENNAN..........
(Alice C. Brennan, Attorney-in-fact)
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
1 -- Form of proposed Underwriting Agreement
4.1 -- Indenture, dated as of June 1, 1993, between Bristol-Myers Squibb
Company and The Chase Manhattan Bank, as trustee (Incorporated by
reference to Exhibit 4.2 to the Form 8-K dated May 27, 1993 and
filed on June 3, 1993)
5 -- Opinion with consent of Cravath, Swaine & Moore, counsel to the
Company
12 -- Statement of computation of Ratio of Earnings to Fixed Charges
23.1 -- Consent of Cravath, Swaine & Moore, counsel to the company
(included in Exhibit 5)
23.2 -- Consent of Price Waterhouse LLP
24 -- Powers of Attorney
25 -- Statement of Eligibility of Trustee
- -----------
Exhibit 1
Bristol-Myers Squibb Company
Underwriting Agreement
New York, New York
To the Representatives
named in Schedule I
hereto of the several
Underwriters named in
Schedule II hereto
Dear Sirs:
Bristol-Myers Squibb Company, a Delaware corporation (the
"Company"), proposes to sell to the several underwriters named in Schedule
II hereto (the "Underwriters"), for whom the firms named in Schedule I
hereto (the "Representatives") are acting as representatives, the principal
amount of its securities identified in Schedule I hereto (the
"Securities"), issued under an indenture (the "Indenture") dated as of June
1, 1993, between the Company and The Chase Manhattan Bank (National
Association), as trustee (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives", as used
herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Under writer as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph
(c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed Offering (as
specified in Schedule I hereto), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form
S-3 under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus,
for registration
<PAGE>
2
under the Act of the Securities. The Company may have filed one
or more amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to you.
Such registration statement, as so amended, has become effective.
The offering of the Securities is a Delayed Offering and,
although the Basic Prospectus may not include all the information
with respect to the Securities and the offering thereof required
by the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the respective rules and regulations
of the Commission thereunder to be included in the Final
Prospectus, the Basic Prospectus includes all such information
required by the Act and the Trust Indenture Act and the
respective rules and regulations of the Commission thereunder to
be included therein as of the Effective Date. The Company will
next file with the Commission pursuant to Rules 415 and 424(b)(2)
or (5) a final supplement to the form of prospectus included in
such registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supple ment
shall include all required information with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to the
Representatives prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained
in the Basic Prospectus and any Preliminary Final Prospectus) as
the Company has advised the Representatives, prior to the
Execution Time, will be included or made therein. The Company
agrees that it will not, without your agreement, file a Rule
462(b) Registration Statement.
(ii) The Company meets the requirements for the use of Form
S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospec tus,
for registration under the Act of the offer ing and sale of the
Securities. The Company may have filed one or more amendments
thereto, includ ing a Preliminary Final Prospectus, each of which
<PAGE>
3
has previously been furnished to you. The Company will next file
with the Commission either (x) a final prospectus supplement
relating to the Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) prior to the effective ness of such
registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In
the case of clause (x), the Company has included in such
registration statement, as amended at the Effec tive Date, all
information (other than Rule 430A Information) required by the
Act and the Trust Indenture Act and the respective rules and
regulations of the commission thereunder to be included in the
Final Prospectus with respect to the Securities and the offering
thereof. As filed, such final prospectus supplement or such
amendment and form of final prospectus supplement shall contain
all Rule 430A Information, together with all other such required
information, with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised the
Representatives, prior to the Execution Time, will be included or
made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final Pro
spectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") and the Trust Indenture Act
and the respective rules and regulations of the commission thereunder;
on the Effective Date, the Registration Statement did not or will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or neces sary to make the
statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and
<PAGE>
4
the rules thereunder; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes
no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term the "Effective Date" shall mean
each date that the Registration Statement, any post-effective
Amendment or amendments thereto and any Rule 462(b) Registration
Statement became or become effective. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred
to in paragraph (a) above contained in the Registration Statement at
the Effective Date including, in the case of a Non-Delayed Offering,
any Preliminary Final Prospectus. "Preliminary Final Prospectus" shall
mean any preliminary prospectus supplement to the Basic Prospectus
which describes the Securities and the offering thereof and is used
prior to filing of the Final Prospectus. "Final Prospectus" shall mean
the prospectus supplement relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time, together with
the Basic Prospectus or, if, in the case of a Non-Delayed Offering, no
filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Securities, including the Basic
Prospectus, included in the Registration Statement at the Effective
Date. "Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including
<PAGE>
5
incorporated documents, exhibits and financial statements, as amended
at the Execution Time (or, if not effective at the Execution Time, in
the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement, as the case may be. Such term
shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A. "Rule 415", "Rule
424", "Rule 430A", Rule 462" and "Regulation S-K" refer to such rules
or regulation under the Act. "Rule 430A Information" means information
with respect to the Securities and the offering thereof permitted to
be omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A "Rule 462(b) Registration Statement" shall mean
a registration statement and any amendments thereto filed pursuant to
Rule 462(b) relating to the offering covered by the initial
registration statement (File Number [ ]). Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of
securities which is intended to commence promptly after the effective
date of a registration statement, with the result that, pursuant to
Rules 415 and 430A, all information (other than Rule 430A Information)
with respect to the secu rities so offered must be included in such
registration statement at the effective date thereof. A "Delayed
offering" shall mean an offering of securities pursuant to Rule 415
which does not commence promptly after the
<PAGE>
6
effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration state ment at the effective date thereof with respect to
the securities so offered. Whether the offering of the Securities is a
Non-Delayed Offering or a Delayed Offering shall be set forth in
Schedule I hereto.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby,
to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and war ranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto, the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule II
hereto, except that, if Schedule I hereto provides for the sale of
Securities pursuant to delayed delivery arrangements, the respective
principal amounts of Securities to be purchased by the Underwriters shall
be as set forth in Schedule II hereto less the respective amounts of
Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Secur ities to be purchased pursuant to
Delayed Delivery Contracts as hereinafter provided are herein called
"Contract Securities".
If so provided in Schedule I hereto, the Under writers are
authorized to solicit offers to purchase Secu rities from the Company
pursuant to delayed delivery con tracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes
therein as the Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation therefor, the
Company will pay to the Representatives, for the accounts of the several
Underwriters, on the Closing Date, the percentage set forth in Schedule I
hereto of the principal amount of the Securities for which Delayed Delivery
Contracts are made. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies,
pension funds, invest ment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in
<PAGE>
7
all cases where sales of Contract Securities arranged by the Underwriters
have been approved by the Company but, except as the Company may otherwise
agree, each such Delayed Delivery Contract must be for not less than the
minimum principal amount set forth in Schedule I hereto and the aggregate
principal amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The Underwriters
will not have any responsibility in respect of the validity or performance
of Delayed Delivery Contracts. The principal amount of Secu rities to be
purchased by each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to the total
principal amount of Contract Securities as the principal amount of
Securities set forth opposite the name of such Underwriter bears to the
aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in
such proportion and so advise the Company in writing; provided, however,
that the total prin cipal amount of Securities to be purchased by all Under
writers shall be the aggregate principal amount set forth in Schedule II
hereto less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time
specified in Schedule I hereto (or such later date not later than five
business days after such specified date as the Representatives shall
designate), which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such
date and time of delivery and payment for the Underwriters' securities
being herein called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the
order of the Company by wire transfer payable in same-day funds. Delivery
of the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Securities shall be made at
the office specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than two full
business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available
for inspection, checking and packaging
<PAGE>
8
by the Representatives in New York, New York, not later than 1:00 PM on the
business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supple ment (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished the Representatives a copy for their review
prior to filing. Subject to the foregoing sentence, the Company will
cause the Final Prospectus, properly completed, to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Company will promptly
advise the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall have been
filed with the Commission, (iii) when, prior to termination of the
offering of the Securities, any amendment to the Registration
Statement, or any Rule 462(b) Registration Statement, shall have been
filed or become effective, (iv) of any request by the Commission for
any amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) 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 (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Securities 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 and,
if issued, to obtain as soon as possible the withdrawal thereof.
<PAGE>
9
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein in the
light of the circumstances under which they were made not misleading,
or if it shall be necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 4, an amendment or supplement which
will correct such statement or omis sion or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earning statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representa tives and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhib its thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for the qualifica tion of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided, however, that the Company shall not be required to (i)
qualify to do business in any jurisdiction where it would not
otherwise be required to qualify, (ii) file a general consent to
service of process or (iii) subject itself to taxation in any
jurisdiction where it would not otherwise be subject to taxation.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the
<PAGE>
10
Representatives, offer, sell or contract to sell, or otherwise dispose
of (or enter into any transaction which is designed to, or could be
expected to, result in the disposition by any person of), directly or
indirectly, or announce the offering of, any debt securities covered
by the Registration Statement or any other registration statement
filed under the Act.
5. Conditions to the Obligations of the Under writers. The
obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accu racy of the representations and warranties on
the part of the Company contained herein as of the Execution Time and the
Closing Date, to the accuracy of the statements of the company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will become effective not
later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or
(ii) 12:00 Noon on the business day following the day on which the
public offering price was determined, if such determination occurred
after 3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Cravath, Swaine & Moore, counsel to the Company, dated the
Closing Date, to the effect that:
(i) based solely on a certificate from the Secretary of
State of the State of Delaware, the Company is a corporation
validly existing and in good standing under the laws of the State
of Delaware;
<PAGE>
11
(ii) none of the issue and sale of the Securities, the
consummation of any other of the transactions herein contemplated
or the performance of the terms hereof or of any Delayed Delivery
Contract will conflict with, result in a breach of, or constitute
a default under, the Certificate of Incorporation or By-laws of
the Company;
(iii) the Indenture and the Securities conform in all
material respects to the description thereof contained in the
Final Prospectus; the Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act and constitutes a legal, valid and
binding obligation of the Company enforceable against the Company
in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from
time to time in effect and to general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law); and the
Securities 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 Underwriters pursuant to
this Agreement, in the case of the Underwriters' Securities, or
by the purchasers thereof pursuant to Delayed Delivery Contracts,
will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing,
regardless of whether in a proceeding in equity or at law);
(iv) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company;
<PAGE>
12
(v) the Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effec
tiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending
or contemplated under the Act; and
(vi) if the Securities are to be listed on any securities
exchange, authorization therefor has been given, subject to
official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing
application and all required supporting documents with respect to
the Securities with such securities exchange and such counsel has
no reason to believe that the Securities will not be authorized
for listing, subject to official notice of issuance and evidence
of satisfactory distribution.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of New York or the Federal laws of the United States,
to the extent deemed proper and specified in such opinion, upon the
opinion of other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials. References
to the Final Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date.
In addition to the foregoing, such opinion shall also include a
statement as follows:
During the course of the preparation of the Registration
Statement, such counsel has participated in conferences with certain
officers of, and with the accountants and counsel for, the Company,
representatives of the Underwriters and representatives of counsel for
the Underwriters, at which conferences the contents of the
Registration Statement and the
<PAGE>
13
Prospectus and related matters were discussed, and, although such
counsel has not independently verified and is not passing on the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus, such counsel confirms to
the Underwriters, on the basis of information gained in the course of
the performance of the services rendered above that, the Registration
Statement, at the time it became effective, and the Prospectus, as of
the Closing Date, (except the financial statements and other
information of a statistical, accounting, or financial nature included
therein, as to which such counsel need not express any view), appeared
on their face to be appropriately responsive in all material respects
to the requirements of the Act and the applicable rules and
regulations thereunder. Furthermore, subject to the foregoing, such
counsel hereby advises the Underwriters that such counsel's work in
connection with this matter did not disclose any information that gave
such counsel reason to believe that the Registration Statement, at the
time the Registration Statement 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 Prospectus, at the Closing Date,
includes an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (in each case except for the financial statements and other
information of a statistical, accounting or financial nature included
therein, as to which such counsel need not express any view).
(c) The Company shall have furnished to the Representatives the
opinion of its general counsel or associate general counsel, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of
its business or the ownership or leasing of property requires
such qualification, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse
effect on the Company;
<PAGE>
14
(ii) none of the issue and sale of the Securities, the
consummation of any other of the transactions herein contemplated
or the fulfillment of the terms hereof or of any Delayed Delivery
Contract will conflict with, result in a breach or violation of,
or constitute a default under, any law or the terms of any
indenture or other agreement or instrument known to such counsel
and to which the Company is a party or bound (except for such
conflicts, breaches, violations or defaults that would not have a
material adverse effect on the holders of the securities, and
provided that no opinion need be expressed pursuant to this
paragraph (ii) as to any securities laws) or any judgement, order
or decree known to such counsel to be applicable to the Company
of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company;
(iii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the trans actions contemplated herein or in any
Delayed Delivery Contracts, except such as have been obtained
under the Act and the Trust Indenture Act in connection with the
purchase and distribution of the Securities by the Underwriters
and such other approvals (specified in such opinion) as have been
obtained; and
(iv) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement which is
not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a charac ter required to
be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit, which is not Described or filed as
required; and the statements included or incorpo rated in the
Final Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly summarize
such matters.
<PAGE>
15
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the State of New York or the Federal laws of the
United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for
the Underwriters and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Final Prospectus
in this paragraph (c) include any supplements thereto at the
Closing Date.
(d) The Representatives shall have received from [ ],
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, any Delayed Delivery Contracts, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives
a certificate of the Company, signed by the Chairman of the
Board, the President or any Executive Vice President and by the
principal financial officer, the principal accounting officer,
the Treasurer or the Controller of the Company, dated the Closing
Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final
Prospectus, any supplements to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effective ness of the
Registration Statement has been issued and no proceedings
for that purpose have been
<PAGE>
16
instituted or, to the Company's knowledge, threat ened; and
(iii) since the date of the most recent finan cial
statements included in the Final Prospectus (exclusive of
any supplement thereto), there has been no material adverse
change, or any develop ment involving a prospective material
adverse change, in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) At the Closing Date, Price Waterhouse LLP shall have
furnished to the Representatives a letter or letters (which may
refer to letters previously deliv ered to one or more of the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published
rules and regulations thereunder and that they have performed a
review of the unaudited interim financial information of the
Company for the -month period ended , 19 , and as at , 19 , in
accordance with Statement of Accounting Standards No. 71 and
stating in effect that:
(i) in their opinion the audited financial statements
and related financial statement schedules included or
incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply in form in all
material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but
not an examina tion in accordance with generally accepted
audit ing standards) which would not necessarily reveal
matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and executive and
audit committees of
<PAGE>
17
the Company; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to
transactions and events subse quent to the date of the most
recent audited financial statements in or incorporated in
the Final Prospectus, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the
Final Prospectus do not comply in form in all material
respects with applicable accounting requirements and
with the published rules and regulations of the
Commission with respect to financial state ments
included or incorporated in quarterly reports on Form
10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subse quent to the
date of the most recent finan cial statements (other
than any capsule information), audited or unaudited, in
or incorporated in the Registration Statement and the
Final Prospectus, there were any changes, at a
specified date not more than five business days prior
to the date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the
Company (other than due to changes resulting from
changes in foreign currency translation and changes
resulting from transactions in the normal course of
business) or decreases in the stockholders' equity of
the Company (other than changes due to the granting of
employee stock options and stock repurchases pursuant
to the Company's stock repurchase plan, and changes in
the cumulative translation account) as compared with
the amounts shown on the most recent consolidated
balance sheet included or incorporated in the
Registration Statement and the Final Prospec tus, or
for the period from the date of the
<PAGE>
18
most recent financial statements included or
incorporated in the Registration Statement and the
Final Prospectus to such specified date there were any
decreases, as compared with the corresponding period in
the preced ing year in net sales, earnings before
income taxes or net earnings of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives; and
(3) the information included in the Registration
Statement and Prospectus in response to Regulation S-K,
Item 503(d) (Ratio of Earnings to Fixed Charges) is not
in conformity with the applicable disclosure
requirements of Regulation S-K;
(iii) they have performed certain other speci fied
procedures as a result of which they deter mined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical informa tion derived from the
general accounting records of the Company and its
subsidiaries) set forth or incorporated in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Regis tration Statement, agrees with the accounting records
of the Company and its subsidiaries, excluding any questions
of legal interpretation; and
(iv) if pro forma financial statements are included or
incorporated in the Registration Statement and the Final
Prospectus, on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain specified
proce dures, inquiries of certain officials of the Company
and the acquired company who have respon sibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial
statements, nothing came to their attention which caused
them to believe that the pro forma financial statements do
not comply in form in all material respects
<PAGE>
19
with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of such statements.
References to the Final Prospectus in this para graph (f) include
any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Final Prospectus (exclusive of
any supplement to such Final Prospectus), there shall not have been
(i) any change or decrease specified in the letter referred to in
paragraph (f) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the
reasonable judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Repre sentatives may reasonably request.
(i) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract securities arranged by the
Underwriters have been approved by the Company.
If any of the conditions specified in this Sec tion 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
else where in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives, this
Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not
<PAGE>
20
consummated (i) because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied, (ii) because
of any refusal, inability or failure on the part of the Company to perform
any agreement herein or to comply with any provision hereof other than by
reason of a default by any of the Underwriters or (iii) because of the
termination of this Agreement under Section 9(iv) hereof, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
7. Indemnification and Contribution. (a) The company agrees to
indemnify and hold harmless each Under writer, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Under writer within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabili ties, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof 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
agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the -------- ------- Company will 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 any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein and (ii) such indemnity with respect to
any Preliminary Final Prospectus will not inure to the benefit of any
Underwriter from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if (A)
such Underwriter did not deliver a copy of the Final Prospectus (or the
Final
<PAGE>
21
Prospectus as then amended or supplemented) to such person at or prior to
the confirmation of the sale of such Securities to such person in any case
where such delivery is required by the Act, (B) the untrue statement or
omission of a material fact contained in such Preliminary Final Prospectus
was corrected in the Final Prospectus (or the Final Prospectus as then
amended or supplemented) and (C) the Company has previously furnished
copies of the Final Prospectus (or of the Final Prospectus as then amended
or supplemented) to such Underwriter. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indem nify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act against any and all
losses, claims damages or labilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in
any amendment thereof 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 agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the foregoing indemnity will
apply only to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have. The Company acknowledges that the
statements set forth (i) in the last paragraph of the cover page, (ii) in
the [ ] [paragraphs] under "Underwriting" and (iii) if Schedule I hereto
provides for sales of Securities pursuant to delayed delivery arrangements,
in the [ ] [paragraphs] under "Delayed Delivery Arrangements" in any
Preliminary Final Prospectus or the Final Prospectus constitute the only
<PAGE>
22
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and the Representatives confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writ ing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemni fying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indem nified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party
and, subject to the next sentence, the indemnifying party shall only be
required to bear the expense of one counsel (plus any local counsel) for
all indemnified parties. Notwithstanding the indemnifying party's election
to appoint counsel to represent the indem nified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reason
able fees, costs and expenses of such separate counsel and shall reimburse
the indemnified party, as incurred, for such fees, costs and expenses as
well as for related costs of investigation, if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time
<PAGE>
23
after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at
the expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemni fied party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by
the Company and by the Underwriters from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of
the Securi ties) be responsible for any amount in excess of the under
writing discount or commission applicable to the Securities purchased by
such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavail able for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deduct ing
expenses) received by it, and benefits received by the Underwriters shall
be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Final Prospectus.
Relative fault shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided by the Company
or the Underwriters. The Company and the Underwriters agree that it would
not be just and equitable if contribution were determined by pro rata
<PAGE>
24
allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter,
and each person who controls the Company within the meaning of either the
Act or the Exchange Act, each officer of the Company who shall have signed
the Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in Schedule
II hereto bears to the aggregate amount of Securities set forth opposite
the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Company. In the event of
a default by any Underwriter as set forth in this Section 8, the Closing
Date shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
and any
<PAGE>
25
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representa tives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or the Pacific
Stock Exchange or trading in securities generally on the New York Stock
Exchange or the Pacific Stock Exchange shall have been suspended or limited
or minimum prices shall have been established on any such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, the effect of which on financial markets of the United
States is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Final Prospectus (exclusive of any
supplement thereto) or (iv) subsequent to the Execution Time, there shall
have been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating organization"
(as defined by the Commission for purposes of Rule 436(g)(2) under the Act)
or any public notice given by such organization of any intended or
potential decrease in any such rating.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, If sent to the Representatives, will be
mailed, delivered or telecopied and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or telecopied and confirmed to it at Bristol-Myers Squibb
Company, 345 Park Avenue, New York,
<PAGE>
26
N.Y. 10154, telecopier number (212) 546-9966, attention of the General
Counsel.
12. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
14. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
If the foregoing is in accordance with your under standing of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
Bristol-Myers Squibb Company,
By:
..........................
Name:
Title:
<PAGE>
27
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[name of manager]
[name of comanager, if any]
By: [name of manager]
By:
...............................................
Name:
Title:
<PAGE>
28
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
or
[name of manager]
By:
...............................................
Name:
Title:
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
29
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued interest or
amortization of original issue discount, if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed
Offering]
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
<PAGE>
30
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
- --------------- -----------------
$
---------------------
Total............................... $
=====================
<PAGE>
1
SCHEDULE III
Delayed Delivery Contract
[Date]
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Bristol-Myers
Squibb Company (the "Company"), and the Company agrees to sell to the
undersigned, on , 19 , (the "Delivery Date"), $ principal amount of the
Company's (the "Securities") offered by the Company's Prospectus dated , 19
, and related Prospectus Supplement dated , 19 , receipt of a copy of which
is hereby acknowledged, at a purchase price of % of the principal amount
thereof, plus [accrued interest] [amortization of original issue discount],
if any, thereon from , 19 , to the date of payment and delivery, and on the
further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned
shall be made on or before 11:00 AM, New York City time, on the Delivery
Date to or upon the order of the Company in New York Clearing House (next
day) funds, at your office or at such other place as shall be agreed
between the Company and the undersigned, upon delivery to the under signed
of the Securities in definitive fully registered form and in such
authorized denominations and registered in such names as the undersigned
may request by written or tele graphic communication addressed to the
Company not less than five full business days prior to the Delivery Date.
If no request is received, the Securities will be registered in the name of
the undersigned and issued in a denomination equal to the aggregate
principal amount of Securities to be purchased by the undersigned on the
Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the
Company to sell and deliver Securities on the Delivery Date, shall be
subject to the conditions (and neither party shall incur any liability by
reason of the failure thereof) that (1) the purchase of Securities to be
made by the undersigned, which purchase the undersigned
<PAGE>
2
represents is not prohibited on the date hereof, shall not on the Delivery
Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery
Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus
Supplement mentioned above. Promptly after completion of such sale to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in
connection therewith. The obligation of the undersigned to take delivery of
and make payment for the Securities, and the obligation of the Company to
cause the Securities to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective succes sors, but will not be
assignable by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discre tion and, without
limiting the foregoing, need not be on a first come, first served basis. If
this contract is acceptable to the Company, it is required that the Company
sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the undersigned, as
of the date first above written, when such counterpart is so mailed or
delivered.
<PAGE>
3
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Very truly yours,
...................................
(Name of Purchaser)
By
...................................
(Signature and Title of Officer)
...................................
(Address)
Accepted:
Bristol-Myers Squibb Company,
By
..............................................
(Authorized Signature)
Exhibit 5
[Letterhead of]
CRAVATH, SWAINE & MOORE
[New York Office]
April 2, 1998
Bristol-Myers Squibb Company
Registration Statement on Form S-3
Dear Sirs:
We have acted as counsel to Bristol-Myers Squibb Company (the
"Company") in connection with the preparation and filing with the
Securities and Exchange Commission of a Registration Statement on Form S-3
(the "Registration Statement") under the Securities Act of 1933 (the "Act")
relating to the registration under the Act of debt securities of the
Company to be issued in one or more series in an aggregate principal amount
not to exceed $1,000,000,000 (the "Debt Securities").
In connection with this opinion, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of such
corporate records, certificates of corporate officers and government
officials and such other documents as we have deemed necessary or
appropriate for the purposes of this opinion. As to various questions of
fact material to this opinion, we have relied upon representations of
officers or directors of the Company and documents furnished to us by the
Company without independent verification of their accuracy. We have also
assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to authentic
original documents of all documents submitted to us as copies.
Based upon the foregoing, we are of opinion that the filing of
the Registration Statement and the registration of the Debt Securities
under the Act and the
<PAGE>
2
execution and delivery by the Company of the Indenture (the "Indenture")
dated as of June 1, 1993, between the Company and The Chase Manhattan Bank
(National Association) (the "Trustee"), which Indenture is Exhibit 4.1 to
the Registration Statement, have been duly authorized by the Company, and
that, assuming (i) the authorization by the Board of Directors of the
Company, or by persons authorized by such Board of Directors, of the
issuance, execution and delivery of any series of Debt Securities, (ii) the
due execution and delivery of the Indenture by the Company and (iii) the
due authorization, execution and delivery of the Indenture by the Trustee,
the Debt Securities of that series, when duly executed by the Company, duly
authenticated by the Trustee, and duly issued and delivered against payment
therefor in the manner set forth in the Indenture, will have been legally
issued and will constitute valid and binding obligations of the Company,
entitled to the benefits of the Indenture, and enforceable against the
Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws affecting
the enforcement of creditors' rights generally from time to time in effect
and to general principles of equity, regardless of whether such
enforceability is considered in a proceeding at law or in equity.
We are admitted to practice only in the State of New York and
express no opinion as to matters governed by any laws other than the laws
of the State of New York, the Delaware General Corporation Law and the
Federal laws of the United States of America.
We hereby consent to the references to us under the heading
"Legal Opinions" in the prospectus forming part of the Registration
Statement and to the filing of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not thereby admit
that we are within the category of persons whose consent is
<PAGE>
3
required under Section 7 of the Act or the Rules and Regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
CRAVATH, SWAINE & MOORE
Bristol-Myers Squibb Company
345 Park Avenue
New York, NY 10154
Attention of John L. McGoldrick, Esq.
Exhibit 12
BRISTOL-MYERS SQUIBB COMPANY
Ratio of Earnings to Fixed Charges
For purposes of computing the ratio of earnings to fixed charges,
"earnings" consist of income before provision for income taxes and fixed
charges (excluding capitalized interest), and "fixed charges" consist of
interest and debt expense, capitalized interest and one-third of rental
expenses (which the Company believes is a reasonable approximation of the
interest factor of such rental expense).
The following table sets forth the ratio of earnings to fixed charges for
the Company (in millions, except ratio amounts) for each of the years ended
December 31,
<TABLE>
<CAPTION>
Earnings 1993 1994 1995 1996 1997
- -------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Earnings before
income taxes $ 2,571 $ 2,555 $ 2,402 $ 4,013 $ 4,482
Fixed charges 118 128 157 136 169
Capitalized interest (14) (15) (15) (15) (10)
------- ------- ------- ------- -------
Total Earnings $ 2,675 $ 2,668 $ 2,544 $ 4,134 $ 4,641
======= ======= ======= ======= =======
Fixed Charges
Interest and debt
expense $ 57 $ 68 $ 97 $ 78 $ 118
Capitalized interest 14 15 15 15 10
One-third of rental
expense 47 45 45 43 41
------- ------- ------- ------- -------
Total Fixed Charges $ 118 $ 128 $ 157 $ 136 $ 169
======= ======= ======= ======= =======
Ratio of Earnings to 22.67(a) 20.84(b) 16.20(c) 30.40 27.46
Fixed Charges ======= ======= ======= ======= =======
</TABLE>
- --------
(a) Earnings in 1993 reflect a $500 million charge before taxes for
pending and future product liability claims. Excluding this charge, the
ratio of earnings to fixed charges for 1993 would have been 26.91.
(b) Earnings in 1994 reflect a $750 million charge before taxes for
pending and future product liability claims. Excluding this charge,the
ratio of earnings to fixed charges for 1994 would have been 26.70.
(c) Earnings in 1995 reflect a $950 million charge before taxes for
pending and future product liability claims and a $310 million charge
before taxes for restructuring. Excluding this charge, the ration of
earnings to fixed charges would have been 24.23.
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on Form S-3 of
our report dated January 22, 1998 appearing on page 57 of Bristol-Myers
Squibb Company's Annual Report on Form 10-K for the year ended December 31,
1997. We also consent to the reference to us under the heading "Experts" in
such Prospectus.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
New York, New York
April 2, 1998
Exhibit 24
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
directors and officers of Bristol-Myers Squibb Company (the "Company")
constitutes and appoints John L. McGoldrick, Esq., Senior Vice President,
Law and Strategic Planning and General Counsel of the Company, and Alice C.
Brennan, Vice President and Secretary of the Company, as his or her true
and lawful attorneys-in-fact and agents, each acting alone, with full
powers of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign a Registration
Statement to be filed with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1933 of up to
$1,000,000,000 aggregate initial public offering price of debt securities,
and any or all amendments to such Registration Statement, including
post-effective amendments, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and
Exchange Commission and other appropriate governmental agencies, and grants
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intent and purposes as he or she
might or could do in person, and hereby ratifies and confirms all that said
<PAGE>
2
attorneys-in-fact and agents, each acting alone, or his or her substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have duly signed this Power
of Attorney this 3rd day of March, 1998.
/s/ Charles A. Heimbold, Jr. /s/ Robert E. Allen
Charles A. Heimbold, Jr. Robert E. Allen
/s/ Louis V. Gerstner, Jr. /s/ Ellen V. Futter
Louis V. Gerstner, Jr. Ellen V. Futter
/s/ John D. Macomber /s/ Laurie H. Glimcher, M.D.
John D. Macomber Laurie H. Glimcher, M.D.
/s/ James D. Robinson III /s/ Michael F. Mee
James D. Robinson III Michael F. Mee
/s/ Andrew C. Sigler /s/ Frederick S. Schiff
Andrew C. Sigler Frederick S. Schiff
/s/ Louis W. Sullivan, M.D.
Louis W. Sullivan, M.D.
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)4
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
Bristol-Myers Squibb Company
(Exact name of obligor as specified in its charter)
Delaware 22-079-0350
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
345 Park Avenue
New York, NY 10154
(Address of principal executive offices) (Zip Code)
------------------------------------------------
Debt Securities
(Title of the indenture securities)
------------------------------------------------------------
<PAGE>
2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement
No. 333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference. On
July 14, 1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank (National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4
to Form T-1 filed in connection with Registration Statement No. 333-06249,
which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14,
1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank (National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or
examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939
the Trustee, The Chase Manhattan Bank, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 13th
day of March, 1998.
THE CHASE MANHATTAN BANK
By /s/ James P. Freeman
-----------------------
James P. Freeman
Assistant Vice President
<PAGE>
4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .....................................$ 12,428
Interest-bearing balances .............................. 3,428
Securities:
Held to maturity securities ........................... 2,561
Available for sale securities ............................... 43,058
Federal funds sold and securities purchased under
agreements to resell .................................. 29,633
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,260
Less: Allowance for loan and lease losses 2,783
Less: Allocated transfer risk reserve ..... 0
-------
Loans and leases, net of unearned income,
allowance, and reserve ................................. 126,477
Trading Assets .............................................. 62,575
Premises and fixed assets (including capitalized
leases) ................................................ 2,943
Other real estate owned ..................................... 295
Investments in unconsolidated subsidiaries and
associated companies ................................... 231
Customers' liability to this bank on acceptances
outstanding ............................................ 1,698
Intangible assets ........................................... 1,466
Other assets ................................................ 10,268
-------
TOTAL ASSETS ................................................ $297,061
========
<PAGE>
5
LIABILITIES
Deposits
In domestic offices ..................................... $ 94,524
Noninterest-bearing .................$39,487
Interest-bearing .................... 55,037
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .................................. 71,162
Noninterest-bearing ..................... $ 3,205
Interest-bearing ........................ 67,957
Federal funds purchased and securities sold under agree-
ments to repurchase .......................................... 43,181
Demand notes issued to the U.S. Treasury ..................... 1,000
Trading liabilities .......................................... 48,903
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ........... 3,599
With a remaining maturity of more than one year
through three years .............................. 253
With a remaining maturity of more than three years ..... 132
Bank's liability on acceptances executed and outstanding ..... 1,698
Subordinated notes and debentures ............................ 5,715
Other liabilities ............................................ 9,896
TOTAL LIABILITIES ............................................ 280,063
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................ 0
Common stock ................................................. 1,211
Surplus (exclude all surplus related to preferred stock) .... 10,291
Undivided profits and capital reserves ....................... 5,502
Net unrealized holding gains (losses)
on available-for-sale securities ............................. (22)
Cumulative foreign currency translation adjustments .......... 16
TOTAL EQUITY CAPITAL ......................................... 16,998
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ......................... $ 297,061
=========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
