<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 18, 1997
REGISTRATION NO. 333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
AMGEN INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-3540776
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1840 DEHAVILLAND DRIVE
THOUSAND OAKS, CALIFORNIA 91320-1789
(805) 447-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
GEORGE A. VANDEMAN, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
1840 DEHAVILLAND DRIVE
THOUSAND OAKS, CALIFORNIA 91320-1789
(805) 447-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
GARY OLSON, ESQ.
LATHAM & WATKINS
633 WEST FIFTH STREET, SUITE 4000
LOS ANGELES, CALIFORNIA 90071
(213) 485-1234
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration
Statement.
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, as amended (the "Securities Act"), 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 from 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. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [X]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE(1)(2) REGISTRATION FEE
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<S> <C> <C>
Debt Securities ............................... $500,000,000 $151,515.00
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</TABLE>
(1) Or, if any Debt Securities are issued at original issue discount, such
greater amount as shall result in an aggregate offering price of
$500,000,000.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) of the rules and regulations under the Securities
Act.
---------------
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 THIS 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>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
(SUBJECT TO COMPLETION, DATED NOVEMBER 18, 1997)
PROSPECTUS
$500,000,000
[LOGO OF AMGEN(R)]
DEBT SECURITIES
-----------
The Company may offer and issue from time to time in one or more series debt
securities (the "Debt Securities") with an initial aggregate offering price not
to exceed U.S. $500,000,000 (or the equivalent in foreign denominated currency
or units based on or relating to currencies, including European Currency
Units). The Company will offer Debt Securities to the public on terms
determined by market conditions. Debt Securities may be issuable in registered
form without coupons or in bearer form with or without coupons attached. Debt
Securities may be sold for U.S. dollars, foreign denominated currency or
currency units; principal of, premium, if any, and any interest on Debt
Securities may likewise be payable in U.S. dollars, foreign denominated
currency or currency units in each case, as the Company specifically
designates.
The accompanying Prospectus Supplement sets forth the specific designation,
aggregate principal amount, purchase price, maturity, interest rate (or manner
of calculation thereof), time of payment of interest (if any), listing (if any)
on a securities exchange and any other specific terms of the Debt Securities
and the name of and compensation to each dealer, underwriter or agent (if any)
involved in the sale of such Debt Securities. The managing underwriters with
respect to each series sold to or through underwriters will be named in the
accompanying Prospectus Supplement.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
Debt Securities may be offered through dealers, underwriters or agents
designated from time to time, as set forth in the accompanying Prospectus
Supplement. Net proceeds to the Company will be the purchase price in the case
of a dealer, the public offering price less discount in the case of an
underwriter or the purchase price less commission in the case of an agent--in
each case, less other expenses attributable to issuance and distribution. The
Company may also sell Debt Securities directly to investors on its own behalf.
In the case of sales made directly by the Company, no commission will be
payable. See "Plan of Distribution" for possible indemnification arrangements
for dealers, underwriters and agents.
, 1997
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SECURITIES BY
ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549 or at its Regional Offices located
at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511 and Seven World Trade Center, Suite 1300, New York, New York 10048,
and copies of such material can be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Commission maintains a Web site that contains reports,
proxy and information statements and other information regarding registrants,
including the Company, that file electronically with the Commission at
http://www.sec.gov. The common stock, par value $0.0001 per share, of the
Company is listed on The Nasdaq National Market. Reports, proxy information
and other information concerning the Company can also be inspected at the
offices of Nasdaq at 1735 K Street, N.W., Washington, D.C. 20006.
The Prospectus constitutes a part of a Registration Statement on Form S-3
filed by the Company with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus omits certain of the
information contained in the Registration Statement in accordance with the
rules and regulations of the Commission. Reference is hereby made to the
Registration Statement and related exhibits for further information with
respect to the Company and the Debt Securities. Statements contained herein
concerning the provisions of any document are not necessarily complete and, in
each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the Commission
(File No. 0-12477) and are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(2) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997; and
(3) the Company's Current Reports on Form 8-K as filed with the
Commission on February 26, 1997, February 28, 1997, March 14, 1997, April
8, 1997 and June 13, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, subsequent to the date of this Prospectus and prior
to the termination of the offering of any series of Debt Securities, shall be
deemed to be incorporated by reference in this Prospectus and be a part hereof
from the date of filing of such documents. Any statement contained herein or
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus
to the extent that a statement contained herein, or in any subsequently filed
document that also is or is deemed to
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be incorporated by reference, modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Copies of the above documents (excluding exhibits, unless such exhibits are
specifically incorporated by reference in such documents) may be obtained
without charge upon request by persons (including beneficial owners) to whom
this Prospectus is delivered from the Manager of Investor Relations of the
Company, 1840 DeHavilland Drive, Thousand Oaks, California 91320-1789
(telephone number 805-499-5725, extension 3352).
AMGEN INC.
GENERAL
Amgen Inc. ("Amgen" or the "Company") is a global biotechnology company that
discovers, develops, manufactures and markets human therapeutics based on
advances in cellular and molecular biology.
The Company manufactures and markets three human therapeutic products,
NEUPOGEN(R) (Filgrastim), EPOGEN(R) (Epoetin alfa) and INFERGEN(R) (Interferon
alfacon-1). NEUPOGEN(R) selectively stimulates the production of neutrophils,
one type of white blood cell. The Company markets NEUPOGEN(R) in the United
States, countries of the European Union ("EU"), Canada and Australia for use
in decreasing the incidence of infection in patients undergoing
myelosuppressive chemotherapy. In addition, NEUPOGEN(R) is marketed in most of
these countries for use in reducing the duration of neutropenia for patients
undergoing myeloablative therapy followed by bone marrow transplantation, for
treating patients with severe chronic neutropenia and to support peripheral
blood progenitor cell ("PBPC") transplantations. EPOGEN(R) stimulates the
production of red blood cells and is marketed by Amgen in the United States
for the treatment of anemia associated with chronic renal failure in patients
on dialysis. INFERGEN(R) is a non-naturally occurring recombinant type-I
interferon for the treatment of chronic hepatitis C viral infection.
The Company focuses its research on biological cell/tissue events and its
development efforts on human therapeutics in the areas of hematopoiesis,
neurobiology, endocrinology, inflammation and soft tissue repair and
regeneration. The Company has research facilities in the United States and
Canada and has clinical development staff in the United States, the EU,
Canada, Australia, Japan and Hong Kong. To augment internal research and
development efforts, the Company has established external research
collaborations and has acquired certain product and technology rights.
Amgen operates commercial manufacturing facilities located in the United
States and Puerto Rico. A sales and marketing force is maintained in the
United States, the EU, Canada and Australia. In addition, Amgen has entered
into licensing and co-promotion agreements to market NEUPOGEN(R), EPOGEN(R)
and INFERGEN(R) in certain geographic areas.
The Company was incorporated in California in 1980 and was merged into a
Delaware corporation in 1987. Amgen's principal executive offices are located
at 1840 DeHavilland Drive, Thousand Oaks, California 91320-1789 and its
telephone number is (805) 447-1000.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's consolidated ratio of earnings to fixed charges for the fiscal
years ended December 31, 1992, 1993, 1994, 1995 and 1996 and for the nine
months ended September 30, 1997 were 55.7x, 46.0x, 31.1x, 33.2x, 62.4x and
49.5x, respectively. For the purposes of calculating the ratio of earnings to
fixed charges, earnings consist of income before income taxes adjusted for the
equity in earnings and losses of and cash distributions from less than 50%-
owned companies accounted for under the equity method, the Company's share of
the provision for income taxes of a 50%-owned company and fixed charges
(excluding capitalized interest). Fixed charges consist of net interest
expense (including amortization of debt issuance costs and Amgen's applicable
share of interest expense of a 50%-owned company), capitalized interest and
the interest portion of operating lease expense.
3
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USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the net
proceeds from the sale of the Debt Securities will be used for general
corporate purposes, which may include additions to working capital, capital
expenditures, stock repurchases, repayment of indebtedness and acquisitions.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture dated as of January 1,
1992, as supplemented by a First Supplemental Indenture dated as of February
26, 1997 (the "Supplement") (such Indenture and Supplement are collectively
referred to herein as the "Indenture"), between the Company and Citibank,
N.A., as trustee (the "Trustee"). The following summaries of certain
provisions of the Indenture and the Debt Securities do not purport to be
complete and such summaries are subject to the detailed provisions of the
Indenture to which reference is hereby made for a full description of such
provisions, including the definition of certain terms used herein, and for
other information regarding the Debt Securities. The Indenture has been
incorporated by reference as an exhibit to the Registration Statement of which
this Prospectus is a part. Numerical references in parentheses below are to
sections in the Indenture. Wherever particular sections or defined terms of
the Indenture are referred to, such sections or defined terms are incorporated
herein by reference as part of the statement made, and the statement is
qualified in its entirety by such reference. The Debt Securities offered by
this Prospectus and the accompanying Prospectus Supplement are referred to
herein as the "Offered Debt Securities."
GENERAL
The Indenture does not limit the amount of additional indebtedness that the
Company may incur. The Debt Securities will be unsecured and will rank pari
passu with all other unsecured and unsubordinated indebtedness of the Company.
The Indenture provides that Debt Securities may be issued from time to time
in one or more series and may be denominated and payable in foreign currencies
or units based on or relating to foreign currencies, including European
Currency Units ("ECUs"). Special United States federal income tax
considerations applicable to any Debt Securities so denominated are described
in the relevant Prospectus Supplement.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Offered Debt Securities (to the extent such
terms are applicable to such Offered Debt Securities): (i) the specific
designation, aggregate principal amount, purchase price and denomination; (ii)
currency or units based on or relating to currencies in which such Offered
Debt Securities are denominated and/or in which principal of, premium, if any,
and/or any interest on such Offered Debt Securities will or may be payable;
(iii) any date of maturity; (iv) interest rate or rates (or the method by
which such rate will be determined), if any; (v) the dates on which any such
interest will be payable; (vi) the place or places where the principal of,
premium, if any, and any interest on the Offered Debt Securities will be
payable; (vii) any redemption, repayment or sinking fund provisions; (viii)
whether the Offered Debt Securities will be issuable in registered form or
bearer form ("Bearer Debt Securities") or both and, if Bearer Debt Securities
are issuable, any restrictions applicable to the exchange of one form for
another and to the offer, sale and delivery of Bearer Debt Securities; (ix)
any applicable United States federal income tax consequences, including
whether and under what circumstances the Company will pay additional amounts
on Offered Debt Securities held by a person who is not a U.S. person (as
defined in the Prospectus Supplement) in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Company will
have the option to redeem such Offered Debt Securities rather than pay such
additional amounts; and (x) any other specific terms of the Offered Debt
Securities, including any additional events of default or covenants provided
for with respect to such Offered Debt Securities, and any terms which may be
required by or be advisable under applicable laws or regulations.
4
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Debt Securities may be presented for exchange and registered Debt Securities
may be presented for transfer in the manner, at the places and subject to the
restrictions set forth in the Debt Securities and the Prospectus Supplement.
Subject to the limitations provided in the Indenture, such services will be
provided without charge, other than any tax or other governmental charge
payable in connection therewith. Debt Securities in bearer form and the
coupons, if any, appertaining thereto will be transferable by delivery.
Debt Securities will bear interest at a fixed rate (a "Fixed Rate Security")
or a floating rate (a "Floating Rate Security"). Debt Securities bearing no
interest or interest at a rate that at the time of issuance is below the
prevailing market rate will be sold at a discount below their stated principal
amount. Special United States federal income tax considerations applicable to
any such discounted Debt Securities or to certain Debt Securities issued at
par which are treated as having been issued at a discount for United States
federal income tax purposes are described in the relevant Prospectus
Supplement.
GLOBAL SECURITIES
The registered Debt Securities of a series may be issued in the form of one
or more fully registered global Debt Securities (a "Registered Global
Security") that will be deposited with a depositary (a "Depositary") or with a
nominee for a Depositary identified in the Prospectus Supplement relating to
such series and registered in the name of the Depositary or a nominee thereof.
In such case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding registered Debt Securities of the series to be
represented by such Registered Global Security or Registered Global
Securities. Unless and until it is exchanged in whole for Debt Securities in
definitive registered form, a Registered Global Security may not be
transferred except as a whole by the Depositary for such Registered Global
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor of such Depositary or a nominee of such
successor. The Depositary currently accepts only Debt Securities that are
denominated in U.S. dollars.
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Registered Global
Security will be described in the Prospectus Supplement relating to such
series. The Company anticipates that the following provisions will apply to
all depositary arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Registered Global Security, the
Depositary for such Registered Global Security will credit, on its book-entry
registration and transfer system, the participants' accounts with the
respective principal amounts of the Debt Securities represented by such
Registered Global Security beneficially owned by such participants. The
accounts to be credited shall be designated by any dealers, underwriters or
agents participating in the distribution of such Debt Securities. Ownership of
beneficial interests in such Registered Global Security will be shown on, and
the transfer of such ownership interests will be effected only through,
records maintained by the Depositary for such Registered Global Security (with
respect to interests of participants) and on the records of participants (with
respect to interests of persons holding through participants). The laws of
some states may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to own, transfer or pledge beneficial interests in
Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder
of the Debt Securities represented by such Registered Global Security for all
purposes under the Indenture. Except as set forth below, owners of beneficial
interests in a Registered Global Security will not be entitled to have the
Debt Securities represented by such Registered Global Security registered in
their names, will not receive or be entitled to receive physical delivery of
such Debt Securities in definitive form and will not be considered the owners
or holders thereof under the Indenture. Accordingly, each person owning a
beneficial
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interest in a Registered Global Security must rely on the procedures of the
Depositary for such Registered Global Security and, if such person is not a
participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a holder under the Indenture. The
Company understands that under existing industry practices, if the Company
requests any action of holders or if an owner of a beneficial interest in a
Registered Global Security desires to give or take any action which a holder
is entitled to give or take under the Indenture, the Depositary for such
Registered Global Security would authorize the participants holding the
relevant beneficial interests to give or take such action, and such
participants would authorize beneficial owners owning through such
participants to give or take such action or would otherwise act upon the
instructions of beneficial owners holding through them.
Payments of principal of, premium, if any, and any interest on Debt
Securities represented by a Registered Global Security registered in the name
of a Depositary or its nominee will be made to such Depositary or its nominee,
as the case may be, as the registered owner of such Registered Global
Security. None of the Company, the Trustee or any other agent of the Company
or agent of the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in such Registered Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depositary for any Debt Securities represented
by a Registered Global Security, upon receipt of any payment of principal,
premium, if any, or any interest in respect of such Registered Global
Security, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in such
Registered Global Security as shown on the records of such Depositary. The
Company also expects that payments by participants to owners of beneficial
interests in such Registered Global Security held through such participants
will be governed by standing customer instructions and customary practices, as
is now the case with securities held for the accounts of customers in bearer
form or registered in "street name," and will be the responsibility of such
participants.
If the Depositary for any Debt Securities represented by a Registered Global
Security is at any time unwilling or unable to continue as Depositary or
ceases to be a clearing agency registered under the Exchange Act, and a
successor Depositary registered as a clearing agency under the Exchange Act is
not appointed by the Company within 90 days, the Company will issue such Debt
Securities in definitive form in exchange for such Registered Global Security.
In addition, the Company may at any time and in its sole discretion determine
not to have any of the Debt Securities of a series represented by one or more
Registered Global Securities and, in such event, will issue Debt Securities of
such series in definitive form in exchange for all of the Registered Global
Security or Registered Global Securities representing such Debt Securities.
Any Debt Securities issued in definitive form in exchange for a Registered
Global Security will be registered in such name or names as the Depositary
shall instruct the Trustee. It is expected that such instructions will be
based upon directions received by the Depositary from participants with
respect to ownership of beneficial interests in such Registered Global
Security. The Debt Securities of a series may also be issued in the form of
one or more bearer global Securities (a "Bearer Global Security") that will be
deposited with a common depositary for Euroclear and CEDEL, or with a nominee
for such depositary identified in the Prospectus Supplement relating to such
series. The specific terms and procedures, including the specific terms of the
depositary arrangement, with respect to any portion of a series of Debt
Securities to be represented by a Bearer Global Security will be described in
the Prospectus Supplement relating to such series.
CERTAIN COVENANTS OF THE COMPANY
Limitation on Liens. The Indenture provides with respect to each series of
Debt Securities that, unless the terms of such series of Debt Securities
provide otherwise, the Company covenants not to create or assume, or permit
any Restricted Subsidiary to create or assume, any mortgage, pledge or lien
("Mortgage") upon any Principal Property or any shares of capital stock or
indebtedness of any Restricted Subsidiary owned or acquired, unless the Debt
Securities of such series are secured by such Mortgage equally and ratably
with all other indebtedness thereby secured. Such covenant does not apply to
(a) Mortgages on any Principal Property, shares
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of stock or indebtedness of any corporation existing at the time such
corporation becomes a Restricted Subsidiary, (b) Mortgages on any Principal
Property acquired, constructed or improved by the Company or any Restricted
Subsidiary after the date of the Indenture which are created or assumed
contemporaneously with such acquisition, construction or improvement or within
120 days after the latest of the acquisition, completion of construction
(including any improvement on an existing property) or commencement of
commercial operation of such property, to secure or provide for payment of all
or any substantial part of the purchase price of such property or the cost of
such construction or improvement incurred after the date of the Indenture, (c)
Mortgages on any Principal Property or shares of stock or indebtedness
acquired from a corporation merged with or into the Company or a Restricted
Subsidiary and Mortgages on any Principal Property existing at the time of
acquisition, (d) Mortgages on any Principal Property to secure indebtedness of
a Restricted Subsidiary to the Company or another Restricted Subsidiary, (e)
Mortgages on any Principal Property in favor of the United States of America
or any State thereof or The Commonwealth of Puerto Rico or any political
subdivision thereof, to secure progress or other payments or to secure
indebtedness incurred for the purpose of financing the cost of acquiring,
constructing or improving such Principal Property (including Mortgages
incurred in connection with pollution control, industrial revenue, Title XI
maritime financings or similar financings), (f) Mortgages existing as of the
date of the Indenture, (g) Mortgages for taxes, assessments, government
charges or claims which are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and if a reserve or
other appropriate provision, if any, as shall be required in conformity with
generally accepted accounting principles shall have been made therefor, (h)
Mortgages created or deposits made to secure the performance of tenders, bids,
leases, statutory obligations, surety and appeal bonds, government contracts,
performance and return-of-money bonds and other obligations of a like nature
incurred in the ordinary course of business (exclusive of obligations for the
payment of borrowed money), and (i) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole or in part, of any
Mortgage referred to in the foregoing clauses (a) to (h), inclusive. (Section
3.6)
Notwithstanding the foregoing, the Company and its Restricted Subsidiaries
may, without securing the Debt Securities of any series, create or assume
Mortgages (which would otherwise be subject to the foregoing restrictions)
securing indebtedness in an aggregate amount which, together with all other
Exempted Debt (as defined herein) of the Company and its Restricted
Subsidiaries, does not at the time exceed 10% of Consolidated Adjusted Net
Tangible Assets (defined in the Indenture as total assets less current
liabilities and intangible assets on the consolidated balance sheet contained
in the latest report on Form 10-Q or on Form 10-K, of the Company and its
subsidiaries). (Section 3.6)
Limitation on Sale and Lease-Back Transactions. The Indenture provides with
respect to each series of Debt Securities that, unless the terms of such
series of Debt Securities provides otherwise, a Sale and Lease-Back
Transaction (as defined herein) is prohibited except in the event that (a) the
Company or such Restricted Subsidiary would be entitled to incur indebtedness
secured by a Mortgage on the property to be leased in an amount equal to the
Attributable Debt (as defined herein) with respect to such Sale and Lease-Back
Transaction without equally and ratably securing the Debt Securities of such
series pursuant to the first paragraph of "Limitation on Liens" above; or (b)
the Company applies an amount equal to the fair value of the property sold to
the purchase of Principal Property or to the retirement of Long-Term
Indebtedness (as defined herein) within 120 days of the effective date of any
such Sale and Lease-Back Transaction. In lieu of applying such amount to such
retirement the Company may deliver Debt Securities to the Trustee for
cancellation, such Debt Securities to be credited at the cost thereof to the
Company. (Section 3.7)
Notwithstanding the foregoing, the Company or any Restricted Subsidiary may
enter into any Sale and Lease-Back Transaction (which would otherwise be
subject to the foregoing restrictions) as long as the Attributable Debt
resulting from such Sale and Lease-Back Transaction, together with all other
Exempted Debt of the Company and its Restricted Subsidiaries, does not at any
time exceed 10% of Consolidated Adjusted Net Tangible Assets. (Section 3.7)
Limitation on Indebtedness of Subsidiaries. The Indenture provides with
respect to each series of Debt Securities that, unless the terms of such
series of Debt Securities provide otherwise, the Company will not permit
7
<PAGE>
any Subsidiary to create or assume any Indebtedness if such Indebtedness
together with all other aggregate Indebtedness of its Subsidiaries exceeds 20%
of Consolidated Adjusted Net Tangible Assets. (Section 3.8)
CERTAIN DEFINITIONS
The term "Attributable Debt," when used in connection with a Sale and Lease-
Back Transaction, means, as of any particular time, the lesser of (a) the fair
value of the property subject to such arrangement and (b) the then present
value (computed by discounting at the Composite Rate (as defined in the
Indenture)) of the obligation of a lessee for net rental payments during the
remaining term of any lease (including any period for which such lease has
been extended or may, at the option of the lessor, be extended). The term "net
rental payments" under any lease for any period means the sum of the rental
and other payments required to be paid in such period by the lessee
thereunder, not including, however, any amounts required to be paid by such
lessee (whether or not designated as rental or additional rental) on account
of maintenance and repairs, insurance, taxes, assessments, water rates or
similar charges required to be paid by such lessee thereunder or any amounts
required to be paid by such lessee thereunder contingent upon the amount of
sales, maintenance and repairs, insurance, taxes, assessments, water rates or
similar charges. (Section 1.1)
The term "Exempted Debt" means the sum of the following items outstanding as
of the date Exempted Debt is being determined: (a) indebtedness of the Company
and its Restricted Subsidiaries incurred after the date of the Indenture and
secured by mortgages created or assumed pursuant to the final paragraph of
"Limitation on Liens" and (b) Attributable Debt of the Company and its
Restricted Subsidiaries in respect of every Sale and Lease-Back Transaction
entered into after the date of the Indenture and pursuant to the second
paragraph of "Limitation on Sale and Lease-Back Transactions." (Section 1.1)
The term "Long Term Indebtedness" means all Indebtedness of the Company and
its Restricted Subsidiaries maturing by its terms more than one year after, or
which is renewable or extendible at the option of the Company for a period
ending more than one year after, the date as of which Long-Term Indebtedness
is being determined. (Section 1.1) The term "Indebtedness" means obligations
(other than non-recourse obligations, or any series of Debt Securities when
determining whether an Event of Default has occurred with respect to such
series of Debt Securities) of, or guaranteed or assumed by, the Company for
borrowed money or evidenced by bonds, debentures, notes or other similar
instruments. (Section 5.1)
The term "Principal Property" means the Company's principal office buildings
and each manufacturing plant or research facility located within the
territorial limits of the States of the United States of America or The
Commonwealth of Puerto Rico (including any other territorial possession of the
United States of America) of the Company or a Subsidiary except such as the
Board of Directors by resolution reasonably determines (taking into account,
among other things, the importance of such property to the business, financial
condition and earnings of the Company and its consolidated subsidiaries taken
as a whole) not to be a Principal Property. (Section 1.1)
The term "Sale and Lease-Back Transaction" means any arrangement with any
person (other than the Company or any Restricted Subsidiary) providing for the
leasing by the Company or a Restricted Subsidiary of any Principal Property
for a term of more than three years, which property has been or is to be sold
or transferred by the Company or such Restricted Subsidiary to such person.
(Section 3.7)
The term "Subsidiary" means any corporation the outstanding securities of
which having ordinary voting power to elect a majority of the board of
directors of such corporation (whether or not any other class of securities
has or might have voting power by reason of the happening of a contingency)
are at the time owned or controlled directly or indirectly by the Company or
by one or more Subsidiaries or by the Company and one or more Subsidiaries;
provided, however, that the term "Subsidiary" shall not mean any corporation
engaged primarily in financing receivables, making loans, extending credit,
providing financing from foreign sources or other activities of a character
conducted by a finance company. The term "Restricted Subsidiary" means any
Subsidiary that owns a Principal Property. (Section 1.1)
8
<PAGE>
Unless otherwise indicated in the applicable Prospectus Supplement, neither
the Debt Securities nor the Indenture contain covenants specifically designed
to protect holders of Debt Securities in the event of a highly leveraged
transaction involving the Company.
LIMITATION ON MERGERS AND SALE OF ASSETS
The Company may not consolidate with, merge into or be merged into, or
transfer or lease its property and assets substantially as an entirety to
another entity unless the successor entity assumes all the obligations of the
Company under the Indenture and the Debt Securities and after giving effect
thereto, no default or Event of Default (as defined below) shall have occurred
and be continuing and such successor entity shall be a United States
corporation. Thereafter, except in the case of a lease, all such obligations
of the Company shall terminate. (Section 9.1) The Indenture further provides
with respect to each series of Debt Securities that, unless the terms of such
series of Debt Securities provide otherwise, the Company will not, and will
not permit any Restricted Subsidiary to, merge or consolidate with another
corporation, or sell all or substantially all of its assets to another
corporation for a consideration other than the fair value thereof in cash, if
such other corporation has outstanding obligations secured by a Mortgage
which, after such transaction, would extend to any Principal Property owned by
the Company or such Restricted Subsidiary prior to such transaction, unless
the Company or such Restricted Subsidiary shall have effectively provided that
the Debt Securities of such series will be secured by a Mortgage which, upon
completion of the aforesaid transaction, will rank prior to such Mortgage of
such other corporation on any Principal Property. (Section 3.6)
EVENTS OF DEFAULT
An Event of Default with respect to any series of Debt Securities is defined
under the Indenture as being: (a) default in payment of any principal of the
Debt Securities of such series, either at maturity (or upon any redemption),
by declaration or otherwise; (b) default for 30 days in payment of any
interest on any Debt Securities of such series; (c) default for 90 days after
written notice in the observance or performance of any other covenant or
agreement in the Debt Securities of such series or the Indenture other than a
covenant included in such Indenture solely for the benefit of a series of Debt
Securities other than such series; (d) certain events of bankruptcy,
insolvency or reorganization; (e) failure by the Company to make any payment
at maturity, including any applicable grace period, in respect of Indebtedness
in an amount in excess of $10,000,000 and continuance of such failure for a
period of 30 days after written notice thereof to the Company by the Trustee,
or to the Company and the Trustee by the holders of not less than 25% in
principal amount of the outstanding Debt Securities (treated as one class)
issued under the Indenture; (f) a default with respect to any Indebtedness,
which default results in the acceleration of Indebtedness in an amount in
excess of $10,000,000 without such Indebtedness having been discharged or such
acceleration having been cured, waived, rescinded, or annulled for a period of
30 days after written notice thereof to the Company by the Trustee, or to the
Company and the Trustee by the holders of not less than 25% in principal
amount of the outstanding Debt Securities (treated as one class) issued under
the Indenture; or (g) default in the payment of any sinking fund installment
of the Debt Securities of such series as and when the same shall become due
and payable; provided, however, that if any such failure, default or
acceleration referred to in clause (e) or (f) above shall cease or be cured,
waived, rescinded or annulled, then the Event of Default by reason thereof
shall be deemed likewise to have been thereupon cured. (Section 5.1)
The Indenture provides that (a) if an Event of Default due to the default in
payment of principal of, premium, if any, or any interest on, any series of
Debt Securities or due to the default in the performance or breach of any
other covenant or warranty of the Company applicable to the Debt Securities of
such series but not applicable to all outstanding Debt Securities or due to
the default in the payment of any sinking fund installment of the Debt
Securities of such series shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of the Debt
Securities of each affected series (treated as one class) then outstanding may
then declare the principal of all Debt Securities of each such affected series
and interest accrued thereon to be due and payable immediately; and (b) if an
Event of Default due to a default in the performance of any other of the
covenants or agreements in the Indenture applicable to all outstanding Debt
9
<PAGE>
Securities or due to certain events of bankruptcy, insolvency and
reorganization of the Company or due to a default described in clauses (e) or
(f) of the preceding paragraph shall have occurred and be continuing, either
the Trustee or the holders of not less than 25% in principal amount of all
Debt Securities then outstanding (treated as one class) may declare the
principal of all such Debt Securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal of, premium, if any, or any interest on such Debt
Securities) by the holders of a majority in principal amount of the Debt
Securities of all such affected series then outstanding. (Section 5.1)
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during a default to act with the required standard of
care, to be indemnified by the holders of Debt Securities (treated as one
class) before proceeding to exercise any right or power under the Indenture at
the request of such holders. (Section 5.6) Subject to such provisions in the
Indenture for the indemnification of the Trustee and certain other
limitations, the holders of a majority in principal amount of the outstanding
Debt Securities of each affected series (treated as one class) may direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee.
(Section 5.9)
The Indenture provides that no holder of Debt Securities may institute any
action against the Company under the Indenture (except actions for payment of
overdue principal or interest) unless such holder previously shall have given
to the Trustee written notice of default and continuance thereof and unless
the holders of not less than 25% in principal amount of the Debt Securities of
each affected series (treated as one class) then outstanding shall have
requested the Trustee to institute such action and shall have offered the
Trustee reasonable indemnity, the Trustee shall not have instituted such
action within 60 days of such request and the Trustee shall not have received
direction inconsistent with such written request by the holders of a majority
in principal amount of the outstanding Debt Securities of each affected series
(treated as one class). (Section 5.6 and Section 5.7)
The Indenture contains a covenant that the Company will file annually,
commencing March 31, 1992, with the Trustee a certificate that no default
existed or a certificate specifying any default that existed, each as of the
preceding December 31. (Section 3.5)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides with respect to each series of Debt Securities that
the Company may elect either (a) except to the extent the terms of such series
of Debt Securities provide otherwise, to defease and be discharged from any
and all obligations with respect to the Debt Securities of such series (except
for the obligations to register the transfer or exchange of the Debt
Securities of such series, to replace temporary or mutilated, destroyed, lost
or stolen Debt Securities of such series, to maintain an office or agency in
respect of the Debt Securities of such series and to hold moneys for payment
in trust) ("legal defeasance") or (b) to be released from its obligations with
respect to the Debt Securities of such series under Sections 3.6, 3.7, 3.8 and
9.1 of the Indenture (being the restrictions described under "Certain
Covenants of the Company") ("covenant defeasance"), upon the deposit with the
Trustee (or other qualifying trustee), in trust for such purpose, of money or,
in the case of Debt Securities payable in U.S. dollars, U.S. Government
Obligations (as defined in the Indenture) which through the payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient to pay the principal of, premium, if any, and any interest
on the Debt Securities of such series, and any mandatory sinking fund or
analogous payments thereon, on the due date thereof. Such a trust may (except
to the extent the terms of the Debt Securities of such series otherwise
provide) only be established if, among other things, the Company has delivered
to the Trustee an opinion of counsel (as specified in the Indenture) to the
effect that the Holders of the Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such legal defeasance or covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such legal defeasance or covenant defeasance had
not occurred. Such opinion, in the case of legal defeasance under clause (a)
above, must (except to the extent the terms of the Debt Securities of the
relevant
10
<PAGE>
series otherwise provide) refer to and be based upon a ruling of the Internal
Revenue Service or a change in applicable Federal income tax law occurring
after the date of the Indenture. The Prospectus Supplement may further
describe the provisions, if any, permitting such legal defeasance or covenant
defeasance with respect to the Offered Debt Securities of the series to which
such Prospectus Supplement relates. (Section 10.1)
MODIFICATION OF THE INDENTURE
The Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of Debt Securities
to: (a) secure any Debt Securities, (b) evidence the assumption by a successor
corporation of the obligations of the Company, (c) add covenants for the
protection of the holders of Debt Securities, (d) cure any ambiguity or
correct any inconsistency in the Indenture or make any other provisions as the
Company may deem necessary or desirable; provided that no such action shall
adversely affect the interests of the holders of Debt Securities, (e)
establish the forms or terms of Debt Securities of any series and (f) evidence
the acceptance of appointment by a successor trustee. (Section 8.1)
The Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a 66 2/3% in
principal amount of Debt Securities of each series then outstanding and
affected (voting as one class), to (i) add any provisions to the Indenture,
(ii) change in any manner or eliminate any of the provisions of the Indenture,
or (iii) modify in any manner the rights of the holders of the Debt Securities
of each series so affected; provided that the Company and the Trustee may not,
without the consent of the holder of each outstanding Debt Security affected
thereby, (a) extend the stated maturity of the principal of any Debt Security,
or reduce the principal amount thereof or reduce the rate or extend the time
of payment of interest thereon, or reduce any amount payable on the redemption
thereof or change the currency in which the principal thereof (including any
amount in respect of original issue discount), premium, if any, or any
interest thereon is payable or reduce the amount of any original issue
discount security payable upon acceleration or provable in bankruptcy or alter
certain provisions of the Indenture relating to the Debt Securities issued
thereunder not denominated in U.S. dollars or impair the right of any holder
to institute suit for the enforcement of any payment on any Debt Security when
due or (b) reduce the aforesaid percentage in principal amount of Debt
Securities of any series, the consent of the holders of which is required for
any such modification. (Section 8.2)
At such time as the Debt Securities issued after February 26, 1997 are the
only Debt Securities then outstanding under the Indenture, then, without any
further action on the part of the Company or the Trustee, the Indenture shall
automatically reduce the principal amount of Debt Securities of each series
then outstanding and affected (voting as one class) necessary to consent to
the actions referred to in clauses (i) through (iii) of the foregoing
paragraph from 66 2/3% to a majority in principal amount of such Debt
Securities.
CONCERNING THE TRUSTEE
The Company and its subsidiaries maintain ordinary banking relationships
with Citibank, N.A. and its affiliates and a number of other banks. Citibank,
N.A. and its affiliates along with a number of other banks have extended
credit facilities to the Company and its subsidiaries.
11
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby in four ways:
(i) directly to purchasers, (ii) through agents, (iii) through underwriters
and (iv) through dealers.
Offers to purchase Debt Securities may be solicited directly by the Company.
Offers to purchase Debt Securities may also be solicited by agents designated
by the Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the
offer or sale of the Debt Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent set forth, in the Prospectus Supplement. Unless otherwise indicated in
the Prospectus Supplement, any such agent will be acting on a best efforts
basis for the period of its appointment. Agents may be entitled under
agreements which may be entered into with the Company to indemnification by
the Company against certain civil liabilities, including liabilities under the
Securities Act, and may be customers of, engage in transactions with or
perform services for the Company in the ordinary course of business.
If any underwriters are utilized in the sale, the Company will enter into an
underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set
forth in the Prospectus Supplement, which will be used by the underwriters to
make resales of the Debt Securities in respect of which this Prospectus is
delivered to the public. The underwriters may be entitled, under the relevant
underwriting agreement, to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company
in the ordinary course of business.
If a dealer is utilized in the sale of the Debt Securities in respect of
which this Prospectus is delivered, the Company will sell such Debt Securities
to the dealer, as principal. The dealer may then resell such Debt Securities
to the public at varying prices to be determined by such dealer at the time of
resale. Dealers may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may
be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters or dealers to solicit offers by certain purchasers to
purchase Offered Debt Securities from the Company at the public offering price
set forth in the Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. Such
contracts will be subject to only those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the commission
payable for solicitation of such offers.
LEGAL MATTERS
The validity of the Offered Debt Securities offered hereby will be passed
upon for the Company by Latham & Watkins, Los Angeles, California. Certain
legal matters with respect to the Offered Debt Securities will be passed upon
for the Company by George A. Vandeman, Esq., Senior Vice President, General
Counsel and Secretary of the Company. Certain legal matters in connection with
offerings made by this Prospectus may be passed on for any underwriters,
agents or dealers by counsel named in the Prospectus Supplement.
EXPERTS
The consolidated financial statements and related schedule of the Company
for the year ended December 31, 1996, appearing in the Company's Annual Report
on Form 10-K have been audited by Ernst & Young LLP, independent auditors, as
set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm
as experts in accounting and auditing.
12
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses, other than underwriting discounts and commissions,
in connection with this offering are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee...................... $151,515
Rating Agency Fees................................................. 130,000
Fees and Expenses of Indenture Trustee............................. 25,000
Printing Expenses.................................................. 50,000
Accountants' Fees and Expenses..................................... 50,000
Legal Fees and Expenses............................................ 100,000
Blue Sky Fees and Expenses......................................... 2,000
Miscellaneous Expenses............................................. 12,500
--------
Total............................................................ $521,015
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, the Restated
Certificate of Incorporation, as amended, and the Amended and Restated Bylaws
of the Company contain provisions covering indemnification of corporate
directors and officers against certain liabilities and expenses incurred as a
result of proceedings involving such persons in their capacities as directors
and officers, including proceedings under the Securities Act of 1933, as
amended (the "Securities Act") and the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
The Company has authorized the entering into of indemnity contracts and
provides indemnity insurance pursuant to which officers and directors are
indemnified or insured against liability or loss under certain circumstances
which may include liability or related loss under the Securities Act and the
Exchange Act.
Any agents, dealers or underwriters, who execute the agreements filed as
Exhibit 1 to this Registration Statement, will agree to indemnify the
Company's directors and its officers against certain liabilities which may
arise under the Securities Act from information furnished to the Company by or
on behalf of any such indemnifying party.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
*1.1 Form of Distribution Agreement for Debt Securities.
*1.2 Form of Underwriting Agreement for Debt Securities.
4.1 Indenture dated as of January 1, 1992 between Amgen Inc. and Citibank,
N.A., as trustee (filed as Exhibit 4-a to the Company's Registration
Statement on Form S-3 (Registration Statement No. 33-44454) and
incorporated herein by reference).
4.2 First Supplement to Indenture dated as of February 26, 1997 between the
Company and Citibank, N.A., as trustee (filed as an exhibit to the Form
8-K Current Report dated March 14, 1997 on March 14, 1997 and
incorporated herein by reference).
*4.3 Form of Floating Rate Note.
*4.4 Form of Fixed Rate Note.
5 Opinion of Latham & Watkins regarding the validity of the Debt
Securities, including consent.
12 Computation of Ratio of Earnings to Fixed Charges.
</TABLE>
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<PAGE>
<TABLE>
<C> <S>
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5).
24 Power of Attorney (contained on page II-4).
25 Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- --------
* To be filed by amendment or incorporated by reference in connection with
the offering of the securities.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant 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, as amended (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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective 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)(1)(i) and (a)(1)(ii) do not apply if
the Registration Statement is on Form S-3 or For S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective 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) The undersigned registrant hereby undertakes, that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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 to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
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
II-2
<PAGE>
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 registrant 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 Securities Act and will be governed
by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
II-3
<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 Thousand Oaks, State of California, on the 18th day
of November, 1997.
AMGEN INC.
/s/ Robert S. Attiyeh
By: _________________________________
Robert S. Attiyeh
Senior Vice President, Finance
and Corporate
Development, and Chief Financial
Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Amgen Inc., and each of us, do
hereby constitute and appoint each and any of Gordon M. Binder, Robert S.
Attiyeh and George A. Vandeman, our true and lawful attorney and agent, with
full power of substitution and resubstitution, to do any and all acts and
things in our name and behalf in any and all capacities and to execute any and
all instruments for us in our names, in connection with this Registration
Statement or any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933, and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, including
specifically, but without limitation, power and authority to sign for us or
any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereto; and we hereby ratify
and confirm all that said attorney and agent, or his substitute, shall do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Gordon M. Binder Chairman of the Board, Chief November 18, 1997
____________________________________ Executive Officer and
Gordon M. Binder Director (Principal
Executive Officer)
/s/ Kevin W. Sharer President, Chief Operating November 18, 1997
____________________________________ Officer and Director
Kevin W. Sharer
/s/ Robert S. Attiyeh Senior Vice President, November 18, 1997
____________________________________ Finance and Corporate
Robert S. Attiyeh Development, and Chief
Financial Officer
/s/ Kathryn E. Falberg Vice President, Corporate November 18, 1997
____________________________________ Controller and Chief
Kathryn E. Falberg Accounting Officer
/s/ Raymond F. Baddour Director November 18, 1997
____________________________________
Raymond F. Baddour
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ William K. Bowes, Jr. Director November 18, 1997
____________________________________
William K. Bowes, Jr.
/s/ Franklin P. Johnson, Jr. Director November 18, 1997
____________________________________
Franklin P. Johnson, Jr.
/s/ Steven Lazarus Director November 18, 1997
____________________________________
Steven Lazarus
/s/ Edward J. Ledder Director November 18, 1997
____________________________________
Edward J. Ledder
/s/ Gilbert S. Omenn Director November 18, 1997
____________________________________
Gilbert S. Omenn
Director
____________________________________
Judith C. Pelham
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
*1.1 Form of Distribution Agreement for Debt Securities.
*1.2 Form of Underwriting Agreement for Debt Securities.
4.1 Indenture dated as of January 1, 1992 between Amgen Inc. and Citibank,
N.A., as trustee (filed as Exhibit 4-a to the Company's Registration
Statement on Form S-3 (Registration Statement No. 33-44454) and
incorporated herein by reference).
4.2 First Supplement to Indenture dated as of February 26, 1997 between
the Company and Citibank, N.A., as trustee (filed as an exhibit to the
Form 8-K Current Report dated March 14, 1997 on March 14, 1997 and
incorporated herein by reference)
*4.3 Form of Floating Rate Note.
*4.4 Form of Fixed Rate Note.
5 Opinion of Latham & Watkins regarding the validity of the Debt
Securities, including consent.
12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
24 Power of Attorney (contained on page II-4).
25 Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- --------
* To be filed by amendment or incorporated by reference in connection with the
offering of the securities.
<PAGE>
EXHIBIT 5
[LETTERHEAD OF LATHAM & WATKINS]
November 18, 1997
Amgen Inc.
1840 DeHavilland Drive
Thousand Oaks, California 91320-1789
Re: $500,000,000 Aggregate Principal
Amount of Debt Securities of Amgen Inc.
Ladies and Gentlemen:
At your request, we have examined the registration statement on Form S-3
(the "Registration Statement") being filed by you with the Securities and
Exchange Commission in connection with the registration, under the Securities
Act of 1933, as amended, of up to $500,000,000 aggregate principal amount of
debt securities (the "Debt Securities"), consisting of debentures, notes,
and/or other evidences of indebtedness in one or more series. We have also
examined the existing Indenture dated as of January 1, 1992 as supplemented by
the First Supplemental Indenture dated as of February 26, 1997 (the
"Supplement") (such Indenture and Supplement are collectively referred to
herein as the "Indenture").
In our capacity as your counsel in connection with such registration, we are
familiar with the proceedings taken and proposed to be taken by the Company in
connection with the authorization and issuance of the Debt Securities and for
the purposes of this opinion, have assumed such proceedings will be timely
completed in the manner presently proposed and that the terms of each issuance
will otherwise be in compliance with law. In addition, we have made such legal
and factual examinations and inquiries, including an examination of originals
or copies certified or otherwise identified to our satisfaction of such
documents, corporate records and instruments, as we have deemed necessary or
appropriate for purposes of this opinion.
We are opining herein as to the effect on the subject transaction only of
the internal laws of the State of New York and the General Corporation Law of
the State of Delaware, and we express no opinion with respect to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or, in the case of Delaware, any other laws, or as to any matters
of municipal law or the laws of any other local agencies within the state.
In our examination, we have 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.
Subject to the foregoing and the other matters set forth herein, it is our
opinion that, as of the date hereof, the Debt Securities have been duly
authorized by the Company, and when the Debt Securities have been duly
established pursuant to the Indenture, duly authenticated by the Trustee and
duly executed and delivered on behalf of the Company against payment therefor
in accordance with the terms and provisions of the Indenture and as
contemplated by the Registration Statement, the Debt Securities will
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms.
Our opinion is subject to the following exceptions, limitations and
qualifications: (i) the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of creditors; (ii) the
effect of general principles of equity, whether enforcement is considered in a
proceeding in equity or law, and the discretion of the court before which any
proceeding therefor may be brought; (iii) the unenforceability under certain
circumstances under law or court decisions of provisions providing for the
indemnification of or contribution to a party with respect to a liability
where such indemnification or contribution is contrary to public policy; (iv)
we express no
<PAGE>
opinion concerning the enforceability of the waiver of rights or defenses
contained in the Indenture; and (v) we express no opinion with respect to
whether the manner by which the acceleration of the Debt Securities may affect
the collectibility of that portion of the stated principal amount thereof
which might be determined to constitute unearned interest thereon.
To the extent that the obligations of the Company under the Indenture may be
dependent upon such matters, we assume for purposes of this opinion that the
Trustee is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Trustee is duly qualified
to engage in the activities contemplated by the Indenture; that the Indenture
has been duly authorized, executed and delivered by the Trustee and
constitutes the legally valid, binding and enforceable obligation of the
Trustee enforceable against the Trustee in accordance with its terms; that the
Trustee is in compliance, generally with respect to acting as a trustee under
the Indenture, with all applicable laws and regulations; and that the Trustee
has the requisite organizational and legal power and authority to perform its
obligations under the Indenture.
We consent to your filing this opinion as an exhibit to the Registration
Statement and to the reference to our firm under the caption "Legal Matters"
in the prospectus included therein.
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE>
EXHIBIT 12
AMGEN INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED DECEMBER 31, ENDED
---------------------------------- SEPTEMBER 30,
1992 1993 1994 1995 1996 1997
------ ------ ------ ------ ------ -------------
<S> <C> <C> <C> <C> <C> <C>
Computation of Earnings:
Income before taxes......... $563.1 $592.4 $588.3 $794.4 $962.3 $617.0
Net interest expense........ 0.1 6.1 12.0 15.3 6.3 0.8
Interest portion of
operating lease expense.... 4.1 3.4 3.9 4.8 5.2 4.7
Equity in losses (earnings)
of and cash distributions
from less than 50%-owned
companies accounted for
under the equity method.... 0.1 13.2 1.3 3.4 0.2 (1.6)
Share of pretax income of
50%-owned affiliate net of
equity pick-up............. 6.2 5.4 4.0 5.2 5.2 2.7
------ ------ ------ ------ ------ ------
Earnings.................... $573.6 $620.5 $609.5 $823.1 $979.7 $623.6
====== ====== ====== ====== ====== ======
Computation of Fixed Charges:
Net interest expense........ $ 0.1 $ 6.1 $ 12.0 $ 15.3 $ 6.3 $ 0.8
Capitalized Interest........ 6.1 4.0 3.7 4.7 4.2 7.1
Interest portion of
operating lease expense.... 4.1 3.4 3.9 4.8 5.2 4.7
------ ------ ------ ------ ------ ------
Fixed Charges............... $ 10.3 $ 13.5 $ 19.6 $ 24.8 $ 15.7 $ 12.6
====== ====== ====== ====== ====== ======
Ratio of Earnings to Fixed
Charges...................... 55.7 46.0 31.1 33.2 62.4 49.5
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Amgen Inc. for the
registration of $500,000,000 of debt securities and to the incorporation by
reference therein of our report dated January 22, 1997, with respect to the
consolidated financial statements of Amgen Inc., included in its Annual Report
(Form 10-K) for the year ended December 31, 1996, filed with the Securities
and Exchange Commission.
Ernst & Young LLP
Los Angeles, California
November 17, 1997
<PAGE>
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) ____
________________________
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
_______________________
AMGEN INC.
(Exact name of obligor as specified in its charter)
Delaware 95-3540776
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1840 Dehavilland Drive
Thousand Oaks, California 91320-1789
(Address of principal executive offices) (Zip Code)
_________________________
Debt Securities
(Title of the indenture securities)
<PAGE>
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.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in
effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to commence
business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise corporate
trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-
55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1
to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
<PAGE>
Exhibit 6 - The consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration
Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as
of June 30, 1997 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
__________________
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, 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 14th day
of November, 1997.
CITIBANK, N.A.
By /s/Wafaa Orfy
-------------
Wafaa Orfy
Senior Trust Officer
<PAGE>
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N.A.
of New York in the State of New York, at the close of
business on June 30, 1997, published in response to call
made by Comptroller of the Currency, under Title 12,
United States Code, Section 161. Charter Number 1461
Comptroller of the Currency Northeastern District.
<TABLE>
<CAPTION>
Thousands
dollars
<S> <C>
ASSETS
Cash and balances due from de-
pository institutions:
Noninterest-bearing balances
and currency and coin................... $ 7,129,000
Interest-bearing balances................ 14,089,000
Held-to-maturity securities.............. 0
Available-for-sale securities............ 32,578,000
Federal funds sold and
securities purchased under
agreements to resell................... 10,072,000
Loans and lease financing receiv-
ables:
Loans and Leases, net of un-
earned income...............$150,867,000
LESS: Allowance for loan
and lease losses...............4,253,000
---------
Loans and leases, net of un-
earned income, allowance,
and reserve............................. 146,614,000
Trading assets........................... 27,966,000
Premises and fixed assets (includ-
ing capitalized leases)................. 3,576,000
Other real estate owned.................. 670,000
Investments in unconsolidated
subsidiaries and associated com-
panies.................................. 1,284,000
Customers' liability to this bank
on acceptances outstanding.............. 2,146,000
Intangible assets........................ 180,000
Other assets............................. 8,193,000
--------------
TOTAL ASSETS............................. $ 254,497,000
==============
LIABILITIES
Deposits:
In domestic offices..................... $ 36,303,000
Noninterest-
bearing ....................$12,930,000
Interest-
bearing......................23,373,000
----------
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs.................................... 142,390,000
Noninterest-
bearing......................11,307,000
Interest-
bearing.....................131,083,000
-----------
Federal funds purchased and
securities sold under agree-
ments to repurchase..................... 7,627,000
Trading liabilities...................... 22,259,000
Other borrowed money (includes
mortgage indebtedness and
obligations under capitalized
leases):
With a remaining maturity of one
year or less........................... 8,826,000
With a remaining maturity of more
than one year through three years...... 2,250,000
With a remaining maturity of more
than three years....................... 1,656,000
Bank's liability on acceptances ex-
ecuted and outstanding.................. 2,183,000
Subordinated notes and
debentures.............................. 5,200,000
Other liabilities........................ 8,663,000
--------------
TOTAL LIABILITIES........................ $ 237,357,000
==============
EQUITY CAPITAL
Perpetual preferred stock
and related surplus................... 0
Common stock........................... $ 751,000
Surplus................................ 7,340,000
Undivided profits and capital re-
serves................................ 8,949,000
Net unrealized holding gains (losses)
on available-for-sale securities..... 743,000
Cumulative foreign currency
translation adjustments............... (643,000)
--------------
TOTAL EQUITY CAPITAL................... $ 17,140,000
--------------
TOTAL LIABILITIES, LIMITED-
LIFE PREFERRED STOCK, AND
EQUITY CAPITAL........................ $ 254,497,000
==============
</TABLE>
I, Roger W. Trupin, Controller of the above-
named bank do hereby declare that this
Report of Condition is true and correct to the
best of my knowledge and belief.
ROGER W. TRUPIN
CONTROLLER
We, the undersigned directors, attest to
the correctness of this Report of Condition.
We declare that it has been examined by us,
and to the best of our knowledge and belief
has been prepared in conformance with the
instructions and is true and correct.
PAUL J. COLLINS
JOHN S. REED
WILLIAM R. RHODES
DIRECTORS
