Delaware
|
||
(State or Other Jurisdiction of Incorporation)
|
||
1-1136
|
22-0790350
|
|
(Commission File Number)
|
(IRS Employer Identification No.)
|
|
430 East 29th Street, 14th Floor
|
||
New York, NY
|
10016
|
|
(Address of Principal Executive Offices)
|
(Zip Code)
|
☑
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
☐
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
☐
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
☐
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
Item 1.01.
|
Entry into a Material Definitive Agreement.
|
• |
by December 31, 2020, the product known as “JCAR017” for the treatment of relapsed-refractory diffuse large B cell lymphoma in humans;
|
• |
by December 31, 2020, the product known as “Ozanimod” for the treatment of relapsing multiple sclerosis in humans; and
|
• |
by March 31, 2021, the product known as “BB2121” for the treatment of relapsed/refractory multiple myeloma in humans.
|
Item 9.01
|
Financial Statements and Exhibits
|
Exhibit No.
|
Description
|
Agreement and Plan of Merger, dated as of January 2, 2019, among Bristol-Myers Squibb Company, Burgundy Merger Sub, Inc. and Celgene Corporation*
|
|
Form of Contingent Value Rights Agreement, between Bristol-Myers Squibb Company and the Trustee (as defined therein)
|
|
Bridge Facility Commitment Letter, dated as of January 2, 2019, among Morgan Stanley Senior Funding, Inc., MUFG Bank, Ltd. and Bristol-Myers Squibb
Company
|
Exhibit No.
|
Description
|
Agreement and Plan of Merger, dated as of January 2, 2019, among Bristol-Myers Squibb Company, Burgundy Merger Sub, Inc. and Celgene Corporation*
|
|
Form of Contingent Value Rights Agreement, between Bristol-Myers Squibb Company and the Trustee (as defined therein)
|
|
Bridge Facility Commitment Letter, dated as of January 2, 2019, among Morgan Stanley Senior Funding, Inc., MUFG Bank, Ltd. and Bristol-Myers Squibb
Company
|
Dated: January 4, 2019
|
Bristol-Myers Squibb Company
|
|
By:
|
/s/ Katherine R. Kelly
|
|
Name:
|
Katherine R. Kelly
|
|
Title:
|
Corporate Secretary
|
Page
|
||
ARTICLE I DEFINITIONS
|
2
|
|
Section 1.01
|
Definitions
|
2
|
Section 1.02
|
Other Definitional and Interpretative Provisions
|
19 |
ARTICLE II CLOSING; THE MERGER
|
19
|
|
Section 2.01
|
Closing
|
19
|
Section 2.02
|
The Merger
|
20
|
Section 2.03
|
Conversion of Shares
|
20
|
Section 2.04
|
Surrender and Payment
|
21
|
Section 2.05
|
Dissenting Shares
|
24
|
Section 2.06
|
Company Equity Awards
|
24
|
Section 2.07
|
Adjustments
|
27
|
Section 2.08
|
Fractional Shares
|
28
|
Section 2.09
|
Withholding Rights
|
28
|
Section 2.10
|
Lost Certificates
|
28
|
Section 2.11
|
Further Assurances
|
28
|
ARTICLE III ORGANIZATIONAL DOCUMENTS; DIRECTORS AND OFFICERS
|
29
|
|
Section 3.01
|
Certificate of Incorporation and Bylaws of the Surviving Corporation
|
29
|
Section 3.02
|
Directors and Officers of the Surviving Corporation
|
29
|
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY
|
29
|
|
Section 4.01
|
Corporate Existence and Power
|
29
|
Section 4.02
|
Corporate Authorization
|
30 |
Section 4.03
|
Governmental Authorization
|
30
|
Section 4.04
|
Non-contravention
|
30
|
Section 4.05
|
Capitalization
|
31
|
Section 4.06
|
Subsidiaries
|
32 |
Section 4.07
|
SEC Filings and the Sarbanes-Oxley Act
|
32
|
Section 4.08
|
Financial Statements and Financial Matters
|
34
|
Section 4.09
|
Disclosure Documents
|
34
|
Section 4.10
|
Absence of Certain Changes
|
34
|
Section 4.11
|
No Undisclosed Material Liabilities
|
35
|
Section 4.12
|
Litigation
|
35
|
Section 4.13
|
Permits
|
35
|
Section 4.14
|
Compliance with Laws
|
36
|
Section 4.15
|
Regulatory Matters
|
36
|
Section 4.16
|
Material Contracts
|
38
|
Section 4.17
|
Taxes
|
41
|
Section 4.18
|
Employees and Employee Benefit Plans
|
43
|
Section 4.19
|
Labor Matters
|
45
|
Section 4.20
|
Intellectual Property
|
45
|
Section 4.21
|
Properties
|
47
|
Section 4.22
|
Environmental Matters
|
47
|
Section 4.23
|
FCPA; Anti-Corruption; Sanctions
|
48
|
Section 4.24
|
Insurance
|
49
|
Section 4.25
|
Transactions with Affiliates
|
49
|
Section 4.26
|
Antitakeover Statutes
|
49
|
Section 4.27
|
Opinions of Financial Advisors
|
49
|
Section 4.28
|
Finders’ Fees
|
49
|
Section 4.29
|
No Ownership of Parent Common Stock
|
50
|
Section 4.30
|
No Other Company Representations and Warranties
|
50
|
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT
|
51
|
|
Section 5.01
|
Corporate Existence and Power
|
51
|
Section 5.02
|
Corporate Authorization
|
51
|
Section 5.03
|
Governmental Authorization
|
52
|
Section 5.04
|
Non-contravention
|
52
|
Section 5.05
|
Capitalization
|
53
|
Section 5.06
|
Subsidiaries
|
54
|
Section 5.07
|
SEC Filings and the Sarbanes-Oxley Act
|
54
|
Section 5.08
|
Financial Statements and Financial Matters
|
56
|
Section 5.09
|
Disclosure Documents
|
56
|
Section 5.10
|
Absence of Certain Changes
|
56
|
Section 5.11
|
No Undisclosed Material Liabilities
|
57
|
Section 5.12
|
Litigation
|
57
|
Section 5.13
|
Permits
|
57
|
Section 5.14
|
Compliance with Laws
|
58
|
Section 5.15
|
Regulatory Matters
|
58
|
Section 5.16
|
Taxes
|
60
|
Section 5.17
|
Employees and Employee Benefit Plans
|
61
|
Section 5.18
|
Labor Matters
|
63
|
Section 5.19
|
Intellectual Property
|
63
|
Section 5.20
|
Environmental Matters
|
65
|
Section 5.21
|
FCPA; Anti-Corruption; Sanctions
|
65
|
Section 5.22
|
Transactions with Affiliates
|
66
|
Section 5.23
|
Antitakeover Statutes
|
66
|
Section 5.24
|
Opinions of Financial Advisors
|
66
|
Section 5.25
|
Finders’ Fees
|
66
|
Section 5.26
|
No Ownership of Company Common Stock
|
67
|
Section 5.27
|
Financing
|
67
|
Section 5.28
|
No Other Parent Representations and Warranties
|
68
|
ARTICLE VI COVENANTS OF THE COMPANY
|
69
|
|
Section 6.01
|
Conduct of the Company
|
69
|
Section 6.02
|
No Solicitation by the Company
|
73
|
Section 6.03
|
Financing Assistance
|
77
|
Section 6.04
|
Cooperation as to Certain Indebtedness
|
80
|
Section 6.05
|
Abraxis CVR Agreement
|
81 |
ARTICLE VII COVENANTS OF PARENT
|
82
|
|
Section 7.01
|
Conduct of Parent
|
82
|
Section 7.02
|
No Solicitation by Parent
|
83
|
Section 7.03
|
Obligations of Merger Sub
|
87
|
Section 7.04
|
Director and Officer Liability
|
87
|
Section 7.05
|
Employee Matters
|
89
|
Section 7.06
|
Financing
|
91
|
Section 7.07
|
New CVR Agreement
|
93
|
ARTICLE VIII COVENANTS OF PARENT AND THE COMPANY
|
93
|
|
Section 8.01
|
Access to Information; Confidentiality
|
93
|
Section 8.02
|
Reasonable Best Efforts
|
94
|
Section 8.03
|
Certain Filings; SEC Matters
|
97
|
Section 8.04
|
Stockholder Meetings
|
99
|
Section 8.05
|
Public Announcements
|
101
|
Section 8.06
|
Notices of Certain Events
|
102
|
Section 8.07
|
Section 16 Matters
|
102
|
Section 8.08
|
Transaction Litigation
|
102
|
Section 8.09
|
Stock Exchange Delisting
|
103
|
Section 8.10
|
Governance
|
103
|
Section 8.11
|
State Takeover Statutes
|
103
|
ARTICLE IX CONDITIONS TO THE MERGER
|
103 | |
Section 9.01
|
Conditions to the Obligations of Each Party
|
103 |
Section 9.02
|
Conditions to the Obligations of Parent and Merger Sub
|
104
|
Section 9.03
|
Conditions to the Obligations of the Company
|
105
|
ARTICLE X TERMINATION
|
105
|
|
Section 10.01
|
Termination
|
105
|
Section 10.02
|
Effect of Termination
|
108
|
Section 10.03
|
Termination Fees
|
108
|
ARTICLE XI MISCELLANEOUS
|
111
|
|
Section 11.01
|
Notices
|
111
|
Section 11.02
|
Survival
|
112 |
Section 11.03
|
Amendments and Waivers
|
112 |
Section 11.04
|
Expenses
|
113
|
Section 11.05
|
Disclosure Schedule References and SEC Document References
|
113
|
Section 11.06
|
Binding Effect; Benefit; Assignment
|
114
|
Section 11.07
|
Governing Law
|
114
|
Section 11.08
|
Jurisdiction/Venue
|
114 |
Section 11.09
|
WAIVER OF JURY TRIAL
|
115
|
Section 11.10
|
Counterparts; Effectiveness
|
115
|
Section 11.11
|
Entire Agreement
|
116
|
Section 11.12
|
Severability
|
116
|
Section 11.13
|
Specific Performance
|
116
|
Term
|
Section |
Affected Employees
|
7.05(a)
|
Agreement
|
Preamble
|
Alternative Financing
|
7.06(b)
|
Annual Incentive Plans
|
7.05(c)
|
Assumed In-the-Money Option
|
2.06(a)
|
Assumed Performance Unit Award
|
2.06(c)
|
Assumed Restricted Stock Award
|
2.06(d)
|
Assumed Restricted Unit Award
|
2.06(b)
|
Bankruptcy and Equity Exceptions
|
4.02(a)
|
Cash Consideration
|
2.03(a)
|
Certificate
|
2.03(b)
|
Certificate of Merger
|
2.02(a)
|
Claim Expenses
|
7.04(a)
|
Closing
|
2.01
|
Closing Date
|
2.01
|
Company
|
Preamble
|
Company Additional Amounts
|
10.03(f)
|
Company Adverse Recommendation Change
|
6.02(a)
|
Company Approval Time
|
6.02(b)
|
Company Bankers
|
4.28
|
Company Board Recommendation
|
4.02(b)
|
Company Fee Reimbursement
|
10.03(d)
|
Company Indenture Officers’ Certificate
|
6.04
|
Company Intervening Event
|
6.02(g)
|
Company Material Contract
|
4.16(a)
|
Company Note Offers and Consent Solicitations
|
6.04
|
Company Opinion of Counsel
|
6.04
|
Company Organizational Documents
|
4.01
|
Company Permits
|
4.13
|
Company Preferred Stock
|
4.05(a)
|
Company PSU Award
|
2.06(c)
|
Company Record Date
|
8.04(a)
|
Company Regulatory Agency
|
4.15(a)
|
Company Regulatory Permits
|
4.15(a)
|
Company RSA
|
2.06(d)
|
Company RSA
|
2.06(d)
|
Company RSU Award
|
2.06(b)
|
Company SEC Documents
|
4.07(a)
|
Company Stock Option
|
2.06(a)
|
Company Stockholder Approval
|
4.02(a)
|
Company Stockholder Meeting
|
8.04(a)
|
Company Superior Proposal
|
6.02(f)
|
Company Supplemental Indenture
|
6.04
|
Company Termination Fee
|
10.03(a)
|
Compensation Continuation Period
|
7.05(a)
|
Confidentiality Agreement
|
8.01(a)
|
Consent Solicitations
|
6.04
|
D&O Claim
|
7.04(a)
|
D&O Indemnified Parties
|
7.04(a)
|
D&O Indemnifying Parties
|
7.04(a)
|
Debt Commitment Letter
|
5.27(a)
|
Debt Commitment Letters
|
5.27(a)
|
Debt Financing
|
5.27(a)
|
Debt Offer Documents
|
6.04
|
DGCL
|
2.02(a)
|
Dissenting Shares
|
2.05
|
Dissenting Stockholders
|
2.05
|
EMA
|
4.15(d)
|
End Date
|
10.01(b)(i)
|
Exchange Agent
|
2.04(a)
|
Exchange Agent Agreement
|
2.04(a)
|
Exchange Fund
|
2.04(a)
|
Exchange Ratio
|
2.03(a)
|
Excluded Shares
|
2.03(a)
|
FDA
|
4.15(a)
|
FDCA
|
4.15(a)
|
Foreign Antitrust Laws
|
4.03
|
Incentive Plan Participant
|
7.05(c)
|
internal controls
|
4.07(f)
|
Joint Proxy Statement/Prospectus
|
8.03(a)
|
Lease
|
4.21
|
Market Based Units
|
5.05(a)
|
Maximum Premium
|
7.04(b)
|
Merger
|
2.02(b)
|
Merger Consideration
|
2.03(a)
|
Merger Effective Time
|
2.02(a)
|
Merger Sub
|
Preamble
|
Nasdaq
|
4.03
|
New Company Plans
|
7.05(b)
|
New CVR
|
2.03(a)
|
New CVR Agreement
|
Recitals
|
New CVR Certificate
|
2.02(d)
|
New CVR Trustee
|
Recitals
|
Offers to Exchange
|
6.04
|
Offers to Purchase
|
6.04
|
Parent
|
Preamble
|
Parent Additional Amounts
|
10.03(f)
|
Parent Adverse Recommendation Change
|
7.02(a)
|
Parent Approval Time
|
7.02(b)
|
Parent Board Recommendation
|
5.02(b)
|
Parent Convertible Preferred Stock
|
5.05(a)
|
Parent Equity Awards
|
5.05(a)
|
Parent Fee Reimbursement
|
10.03(c)
|
Parent Intervening Event
|
7.02(g)
|
Parent Organizational Documents
|
5.01
|
Parent Permits
|
5.13
|
Parent Preferred Stock
|
5.05(a)
|
Parent Registered IP
|
5.19(a)
|
Parent Regulatory Agency
|
5.15(a)
|
Parent Regulatory Permits
|
5.15(a)
|
Parent Restricted Stock Units
|
5.05(a)
|
Parent SEC Documents
|
5.07(a)
|
Parent Share Issuance
|
5.02(a)
|
Parent Stock Options
|
5.05(a)
|
Parent Stockholder Approval
|
5.02(a)
|
Parent Stockholder Meeting
|
8.04(b)
|
Parent Superior Proposal
|
7.02(f)
|
Parent Termination Fee
|
10.03(b)
|
Performance Share Units
|
5.05(a)
|
PHSA
|
4.15(a)
|
principal executive officer
|
4.07(e)
|
principal financial officer
|
4.07(e)
|
Registration Statement
|
8.03(a)
|
Regulation S-K
|
4.11
|
Regulation S-X
|
6.01(l)
|
Scheduled Covered Product IP
|
4.20(a)
|
Share Consideration
|
2.03(a)
|
Surviving Corporation
|
2.02(b)
|
Transaction Litigation
|
8.08
|
Trust Indenture Act
|
5.03
|
U.S. Company Employee Plan
|
4.18(a)
|
Uncertificated Share
|
2.03(b)
|
Unvested Equity Award CVR Consideration
|
2.06(e)
|
Vesting Date
|
2.06(e)
|
|
If to the Company, to:
|
|
|
|
|
|
Celgene Corporation
|
|
|
86 Morris Avenue | |
|
Summit, New Jersey 07901 | |
|
Attention: | Executive Vice President and General Counsel |
|
Email: |
jbiller@celgene.com |
|
|
|
|
with a copy to (which shall not constitute notice): | |
|
|
|
|
Wachtell, Lipton, Rosen & Katz | |
|
51 West 52nd Street | |
|
New York, New York 10019 | |
|
Attention: | Steven A. Cohen |
David K. Lam | ||
Edward J. Lee | ||
Facsimile: | (212) 403 2000 | |
Email: | SACohen@wlrk.com | |
DKLam@wlrk.com | ||
EJLee@wlrk.com |
|
If to Parent or Merger Sub or, post-Closing, the Surviving Corporation, to: | |
|
|
|
|
Bristol-Myers Squibb Company | |
|
430 E. 29th Street, 14th Floor | |
|
New York, New York 10016 | |
|
Attention: |
Executive Vice President, General Counsel |
|
Email: | sandra.leung@bms.com |
|
|
|
|
with a copy to (which shall not constitute notice): | |
|
|
|
|
Bristol-Myers Squibb Company | |
|
Route 206 & Province Line Road | |
|
Princeton, New Jersey 08540 | |
|
Attention: | Senior Vice President and Deputy General Counsel, |
|
|
Transactional Practice Group |
Email: |
joseph.campisi@bms.com | |
with a copy to (which shall not constitute notice): | ||
Kirkland & Ellis LLP | ||
601 Lexington Avenue | ||
New York, New York 10022 | ||
Attention: | David Fox, P.C. | |
Daniel Wolf, P.C. | ||
Jonathan Davis, P.C. | ||
Facsimile: | (212) 446-4900 | |
Email: |
david.fox@kirkland.com | |
daniel.wolf@kirkland.com | ||
jonathan.davis@kirkland.com |
|
BRISTOL-MYERS SQUIBB COMPANY
|
|
|
|
|
|
By: |
/s/ Giovanni Caforio
|
|
Name: |
Giovanni Caforio
|
|
Title:
|
Chief Executive Officer
|
|
BURGUNDY MERGER SUB, INC. | |
|
By: |
/s/ Paul Biondi
|
|
Name: |
Paul Biondi
|
|
Title: |
President
|
CELGENE CORPORATION
|
||
By:
|
/s/ Mark J. Alles
|
|
Name: | Mark J. Alles |
|
Title:
|
Chairman and Chief Executive Officer |
1 |
Note to Draft: Trustee to be determined in accordance with the Merger Agreement.
|
Article 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
1
|
|
Section 1.1
|
Definitions
|
1
|
Section 1.2
|
Compliance and Opinions
|
8
|
Section 1.3
|
Form of Documents Delivered to Trustee
|
9
|
Section 1.4
|
Acts of Holders
|
9
|
Section 1.5
|
Notices, etc., to Trustee and Company
|
10
|
Section 1.6
|
Notice to Holders; Waiver
|
11
|
Section 1.7
|
Conflict with Trust Indenture Act
|
11
|
Section 1.8
|
Effect of Headings and Table of Contents
|
12
|
Section 1.9
|
Benefits of Agreement
|
12
|
Section 1.10
|
Governing Law
|
12
|
Section 1.11
|
Legal Holidays
|
12
|
Section 1.12
|
Separability Clause
|
13
|
Section 1.13
|
No Recourse Against Others
|
13
|
Section 1.14
|
Counterparts
|
13
|
Section 1.15
|
Acceptance of Trust
|
13
|
Section 1.16
|
Termination
|
13
|
Article 2 SECURITY FORMS
|
13
|
|
Section 2.1
|
Forms Generally
|
13
|
Article 3 THE SECURITIES
|
14
|
|
Section 3.1
|
Title and Terms
|
14
|
Section 3.2
|
Registrable Form
|
15
|
Section 3.3
|
Execution, Authentication, Delivery and Dating
|
15
|
Section 3.4
|
[Intentionally Omitted]
|
16
|
Section 3.5
|
Registration, Registration of Transfer and Exchange
|
16
|
Section 3.6
|
Mutilated, Destroyed, Lost and Stolen Securities
|
19
|
Section 3.7
|
Payments with respect to CVRs
|
19
|
Section 3.8
|
Persons Deemed Owners
|
19
|
Section 3.9
|
Cancellation
|
19
|
Section 3.10
|
CUSIP Numbers
|
20
|
Article 4 THE TRUSTEE
|
20
|
|
Section 4.1
|
Certain Duties and Responsibilities
|
20
|
Section 4.2
|
Certain Rights of Trustee
|
21
|
Section 4.3
|
Notice of Default
|
22
|
Section 4.4
|
Not Responsible for Recitals or Issuance of Securities
|
22
|
Section 4.5
|
May Hold Securities
|
22
|
Section 4.6
|
Money Held in Trust
|
23
|
Section 4.7
|
Compensation and Reimbursement
|
23
|
Section 4.8
|
Disqualification; Conflicting Interests
|
23
|
Section 4.9
|
Corporate Trustee Required; Eligibility
|
24
|
Section 4.10
|
Resignation and Removal; Appointment of Successor
|
24
|
Section 4.11
|
Acceptance of Appointment of Successor
|
25
|
Section 4.12
|
Merger, Conversion, Consolidation or Succession to Business
|
26
|
Section 4.13
|
Preferential Collection of Claims Against Company
|
26
|
Article 5 HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE AND COMPANY
|
26
|
|
Section 5.1
|
Company to Furnish Trustee Names and Addresses of Holders
|
26
|
Section 5.2
|
Preservation of Information; Communications to Holders
|
26
|
Section 5.3
|
Reports by Trustee
|
27
|
Section 5.4
|
Reports by Company
|
27
|
Article 6 AMENDMENTS
|
28
|
|
Section 6.1
|
Amendments Without Consent of Holders
|
28
|
Section 6.2
|
Amendments with Consent of Holders
|
28
|
Section 6.3
|
Execution of Amendments
|
29
|
Section 6.4
|
Effect of Amendments; Notice to Holders
|
29
|
Section 6.5
|
Conformity with Trust Indenture Act
|
30
|
Section 6.6
|
Reference in Securities to Amendments
|
30
|
Article 7 COVENANTS
|
30
|
|
Section 7.1
|
Payment of Amounts, if any, to Holders
|
30
|
Section 7.2
|
Maintenance of Office or Agency
|
30
|
Section 7.3
|
Money for Security Payments to Be Held in Trust
|
31
|
Section 7.4
|
Certain Purchases and Sales
|
32
|
Section 7.5
|
Books and Records
|
32
|
Section 7.6
|
Listing of CVRs
|
32
|
Section 7.7
|
Product Transfer
|
32
|
Section 7.8
|
Diligent Efforts
|
32
|
Section 7.9
|
Confidentiality
|
33
|
Section 7.10
|
Non-Use of Name
|
33
|
Section 7.11
|
Notice of Default
|
33
|
Article 8 REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
|
34
|
|
Section 8.1
|
Event of Default Defined; Waiver of Default
|
34
|
Section 8.2
|
Collection by the Trustee; the Trustee May Prove Payment Obligations
|
35
|
Section 8.3
|
Application of Proceeds
|
37
|
Section 8.4
|
Suits for Enforcement
|
37
|
Section 8.5
|
Restoration of Rights on Abandonment of Proceedings
|
37
|
Section 8.6
|
Limitations on Suits by Holders
|
38
|
Section 8.7
|
Unconditional Right of Holders to Institute Certain Suits
|
38
|
Section 8.8
|
Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
|
38
|
Section 8.9
|
Control by Holders
|
39
|
Section 8.10
|
Waiver of Past Defaults
|
39
|
Section 8.11
|
The Trustee to Give Notice of Default, But May Withhold in Certain Circumstances
|
39
|
Section 8.12
|
Right of Court to Require Filing of Undertaking to Pay Costs
|
40
|
Article 9 CONSOLIDATION, MERGER, SALE OR CONVEYANCE
|
40
|
|
Section 9.1
|
Company May Consolidate, etc., on Certain Terms
|
40
|
Section 9.2
|
Successor Person Substituted
|
40
|
Section 9.3
|
Opinion of Counsel to the Trustee
|
41
|
Section 9.4
|
Successors
|
41
|
Article 10 SUBORDINATION
|
41
|
|
Section 10.1
|
Agreement to Subordinate
|
41
|
Section 10.2
|
Liquidation; Dissolution; Bankruptcy
|
42
|
Section 10.3
|
Default on Senior Obligations
|
42
|
Section 10.4
|
When Distribution Must Be Paid Over
|
43
|
Section 10.5
|
Notice by Company
|
43
|
Section 10.6
|
Subordination Effective Notwithstanding Deficiencies with Respect to Senior Obligations: Waiver of Right to Contest Senior Obligation: Reinstatement
of Subordination Provisions
|
43
|
Section 10.7
|
Subrogation
|
44
|
Section 10.8
|
Relative Rights
|
44
|
Section 10.9
|
Subordination May Not Be Impaired by Company
|
45
|
Section 10.10
|
Distribution or Notice to Representative
|
45
|
Section 10.11
|
Rights of the Trustee
|
45
|
Section 10.12
|
Authorization to Effect Subordination
|
45
|
Section 10.13
|
Amendments
|
45
|
Trust Indenture Act Section
|
Agreement Section
|
||
Section 310
|
(a)(1)
|
4.9
|
|
(a)(2)
|
4.9
|
||
(a)(3)
|
Not Applicable
|
||
(a)(4)
|
Not Applicable
|
||
(a)(5)
|
4.9
|
||
(b)
|
4.8, 4.10
|
||
(c)
|
Not Applicable
|
||
Section 311
|
(a)
|
4.13
|
|
(b)
|
4.13
|
||
(c)
|
Not Applicable
|
||
Section 312
|
(a)
|
5.1, 5.2(a)
|
|
(b)
|
5.2(b)
|
||
(c)
|
5.2(c)
|
||
Section 313
|
(a)
|
5.3(a)
|
|
(b)
|
5.3(a)
|
||
(c)
|
5.3(a), 8.11
|
||
(d)
|
5.3(b)
|
||
Section 314
|
(a)
|
5.4, 7.11
|
|
(b)
|
Not Applicable
|
||
(c)(1)
|
1.2(a)
|
||
(c)(2)
|
1.2(a)
|
||
(c)(3)
|
Not Applicable
|
||
(d)
|
Not Applicable
|
||
(e)
|
1.2(b)
|
||
(f)
|
Not Applicable
|
||
Section 315
|
(a)
|
4.1(a), 4.1(b)
|
|
(b)
|
8.11
|
||
(c)
|
4.1(a)
|
||
(d)
|
4.1(c)
|
||
(d)(1)
|
4.1(a), 4.1(b)
|
||
(d)(2)
|
4.1(c)(ii)
|
||
(d)(3)
|
4.1(c)(iii)
|
||
(e)
|
8.12
|
||
Section 316
|
(a)(last sentence)
|
Not Applicable
|
|
(a)(1)(A)
|
8.9
|
||
(a)(1)(B)
|
8.10
|
Trust Indenture Act Section
|
Agreement Section
|
||
(a)(2)
|
Not Applicable
|
||
(b)
|
8.7
|
||
(c)
|
Not Applicable
|
||
Section 317
|
(a)(1)
|
8.2
|
|
(a)(2)
|
8.2
|
||
(b)
|
7.3
|
||
Section 318
|
(a)
|
1.7
|
(A) |
Junior Obligations;
|
(B) |
trade debt incurred in the ordinary course of business;
|
(C) |
any intercompany indebtedness between the Company and any of its Subsidiaries or Affiliates;
|
(D) |
indebtedness of the Company that is expressly subordinated in right of payment to Senior Obligations;
|
(E) |
indebtedness or other obligations of the Company that by its terms ranks equal or junior in right of payment to the Junior Obligations;
|
(F) |
indebtedness of the Company that, by operation of Law, is subordinate to any general unsecured obligations of the Company; or
|
(G) |
indebtedness evidenced by any guarantee of indebtedness ranking equal or junior in right of payment to the Junior Obligations.
|
Attn: |
David Fox, P.C.
Daniel Wolf, P.C.
Jonathan Davis, P.C.
|
BRISTOL-MYERS SQUIBB COMPANY
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
[____________], as the Trustee
|
||
By:
|
|
|
Name:
|
||
Title:
|
No.
|
Certificate for
|
Contingent Value Rights
|
CUSIP
|
[________]
|
By:
|
|
|
Name:
|
||
Title:
|
[__________], as the Trustee
|
By:
|
|
|
Authorized Signatory
|
1. |
Assignment. Effective as of [______] (the “Assignment Date”), Assignor hereby assigns to Assignee, and Assignee hereby accepts the assignment of, the due and punctual payment of the Milestone Payment and the performance and observance of all
covenants and conditions of the CVR Agreement on the part of Assignor to be performed or observed.
|
2. |
Assumption. Effective as of the Assignment Date, Assignee hereby assumes the due and punctual
payment of the Milestone Payment and the performance and observance of all covenants and conditions of the CVR Agreement on the part of Assignor to be performed or observed.
|
3. |
Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit
of the respective parties hereto and their respective successors and assigns.
|
4. |
Governing Law. This Agreement shall be governed by, construed and enforced in accordance with
the laws of New York, without giving effect to the principles of conflicts of laws thereof.
|
5. |
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original but all of which together will constitute one and the same instrument.
|
BRISTOL-MYERS SQUIBB COMPANY
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
[ASSIGNEE]
|
||
By:
|
|
|
Name:
|
||
Title:
|
Morgan Stanley Senior Funding, Inc.
1585 Broadway
New York, New York 10036
|
MUFG Bank, Ltd.
1251 Avenue of the Americas
New York, New York 10020
|
|
Very truly yours,
|
|
|
|
|
|
MORGAN STANLEY SENIOR FUNDING, INC.
|
|
|
|
|
|
By:
|
/s/ Anish Shah |
|
|
Name: Anish Shah
|
|
|
Title: Authorized Signatory
|
|
MUFG BANK, LTD.
|
|
|
|
|
|
By:
|
/s/ Scott O'Connell
|
|
|
Name: Scott O'Connell
|
|
|
Title: Director
|
Accepted and agreed to as of
the date first written above by:
|
|
|
|
|
|
BRISTOL-MYERS SQUIBB COMPANY
|
|
|
|
|
|
By:
|
/s/ Jeffrey Galik |
|
|
Name: Jeffrey Galik
|
|
|
Title: Sr VP & Treasurer
|
|
|
|
|
By:
|
/s/ Katherine R. Kelly |
|
|
Name: Katherine R. Kelly
|
|
|
Title: Corporate Secretary
|
|
Borrower:
|
Bristol-Myers Squibb Company, a Delaware corporation.
|
Guarantors:
|
All obligations of the Borrower under the Facility will be unconditionally guaranteed by any domestic subsidiary of the Borrower (including, from and after the Closing Date, the Target and its
subsidiaries) that has provided a guarantee in respect of the Term Loan Facility, any Existing Credit Agreement or any replacement thereof, any other revolving or term loan credit facility, or any capital markets debt (including the
Securities which are debt securities), in each case, of the Borrower and in an aggregate committed or principal amount in excess of $1,000,000,000, but excluding any guarantees with respect to the indebtedness of the Borrower outstanding on
the date hereof, which guarantees are outstanding on the date hereof.
|
Joint Lead Arrangers
|
|
and Joint Bookrunner:
|
Morgan Stanley Senior Funding, Inc. (“MSSF”) and MUFG will act as joint lead arrangers and joint bookrunners for the Facility (in such capacities, the “Arrangers”).
|
Administrative Agent:
|
MSSF will act as the sole and exclusive administrative agent for the Facility (in such capacity, the “Administrative Agent”).
|
Lenders:
|
A syndicate of banks, financial institutions and other entities, including MSSF, MUFG and/or any of their respective affiliates, arranged by the Arrangers in accordance with the Commitment Letter
(collectively, the “Lenders”).
|
Type and Amount of Facility:
|
364-day senior unsecured bridge term loan facility in the amount of $33,500,000,000 (the “Facility”).
|
Availability:
|
The loans (the “Loans”) shall be available to be drawn on the Closing Date.
|
On the Closing Date, any undrawn commitments shall automatically terminate (after giving effect to the borrowing of Loans, if any, on such date).
|
|
Maturity:
|
The Loans shall mature and be payable in full on the date that is 364 days after the Closing Date (the “Maturity Date”).
|
Purpose:
|
The proceeds of the Loans shall be used to finance (i) the Acquisition, (ii) the repayment of certain existing indebtedness of the Acquired Business and (iii) fees and expenses in connection with
the foregoing.
|
Fees and Interest Rates:
|
As set forth on Annex I to this Exhibit A.
|
|
Optional Prepayments and Commitment Reductions:
|
The Loans may be prepaid (or commitments reduced) by the Borrower at any time in whole or in part without premium or penalty (other than the payment of customary LIBO Rate (as defined on Annex I
hereto) breakage amounts) in minimum amounts equal to $25,000,000. Loans prepaid may not be reborrowed.
|
|
Mandatory Prepayments and
|
||
Commitment Reductions:
|
The following amounts shall be applied to prepay the Loans within three business days of receipt of such amounts (and, prior to the Closing Date, the commitments under the Facility, pursuant to
the Commitment Letter or Credit Documentation (as applicable), shall be automatically and permanently reduced by such amounts) (it being understood that amounts set forth in clause (a) below shall only be required to be applied to reduce
commitments under the Facility prior to the Closing Date):
|
|
(a)
|
100.0% of the committed amount of any term loan credit facility entered into for the purpose of financing the Transactions (such reduction to occur automatically upon the effectiveness of
definitive documentation for such term loan credit facility and receipt by the Arrangers of a notice from the Borrower that such term loan credit facility constitutes a Qualifying Term Loan Facility (as defined below));
|
(b)
|
100.0% of the Net Cash Proceeds (as defined below) from the incurrence of debt for borrowed money by the Borrower or any of its subsidiaries (excluding (i) intercompany debt of such entities, (ii) (x) borrowings under any Existing Credit Agreement or (y) any amendment, refinancing, extension, renewal, replacement or increase of any Existing Credit Agreement; provided, that the aggregate commitments under all such Existing Credit Agreements as so amended, refinanced, extended, renewed, replaced or increased do not exceed $5,000,000,000, (iii) any other borrowings under working capital, letter of credit, overdraft facilities, factoring arrangements, hedging and cash management arrangements, surety bonds and other local credit facilities or lines of credit of foreign subsidiaries, (iv) lease, purchase money or equipment financing or other capital expenditure financing indebtedness incurred in the ordinary course of business, (v) issuances of commercial paper, (vi) indebtedness with respect to capital leases or financial leases incurred in the ordinary course of business, (vii) other debt to the extent the net cash proceeds of such debt are utilized or to be utilized to refinance the Borrower’s 1.750% Notes due 2019 or the Borrower’s 1.600% Notes due 2019 and pay any fees or other amounts in respect thereof or otherwise in connection therewith (including any prepayment or redemption premiums and accrued interest thereon), (viii) following the Closing Date and solely to the extent that the applicable Existing Target Notes (as defined below) mature prior to the Maturity Date, other debt to the extent the net cash proceeds of such debt are utilized or to be utilized to refinance such Existing Target Notes and pay any fees or other amounts in respect thereof or otherwise in connection therewith (including any prepayment or redemption premiums and accrued interest thereon), (ix) other debt (other than the Securities) in an amount not to exceed $1,000,000,000 in the aggregate, (x) indebtedness incurred pursuant to the New Revolving Facilities, (xi) indebtedness incurred in connection with sale-leasebacks and (xii) any Qualifying Term Loan Facility that has reduced commitments under the Facility pursuant to clause (a) above); | |
(c)
|
100.0% of the Net Cash Proceeds from the issuance of any equity interests by the Borrower (other than (i) issuances pursuant to employee stock plans or other benefit or employee incentive
arrangements, (ii) issuances among the Borrower and its subsidiaries, (iii) issuances as consideration for the Acquisition or any other acquisition or strategic initiative or (iv) other issuances in an amount not to exceed $1,000,000,000 in
the aggregate); and
|
|
(d)
|
100.0% of the Net Cash Proceeds from the sale or other disposition of assets of the Borrower or any of its subsidiaries outside the ordinary course of business (including issuances of stock by the
Borrower’s subsidiaries) (except for (A) asset sales (including issuances of stock by the Borrower’s subsidiaries) between or among such entities, (B) asset sales (including issuances of stock by the Borrower’s subsidiaries), the Net Cash
Proceeds of which do not exceed $250,000,000 in any single transaction or related series of transactions or $500,000,000 in the aggregate and (C) the sale of all of the issued and outstanding share capital of UPSA SAS (“UPSA”) and certain
related assets and liabilities owned by the Borrower and its affiliates relating to the operation of the UPSA business to Taisho Pharmaceutical Holdings Co., Ltd. (“Taisho”) or its affiliates pursuant to the binding offer set forth in the Put
Option Agreement by and between Taisho and the Borrower dated December 19, 2018), to the extent that such Net Cash Proceeds are not reinvested (or committed to be reinvested) in the business of the Borrower or any of its subsidiaries within 9
months following receipt thereof.
|
|
“Existing Target Notes” means the Acquired Business’s 2.250% Senior Notes due 2019, 3.950% Senior Notes due 2020 or 2.875% Senior Notes due 2020.
|
|
“Net Cash Proceeds” means, with respect to any event, the cash (which term, for purposes
of this definition, shall include cash equivalents) proceeds actually received by the Borrower or its subsidiaries in respect of such event, including any cash received in respect of any noncash proceeds, but only as and when received, net of
the sum, without duplication, of (i) all underwriting discounts and commissions and other fees and expenses incurred in connection with such event by the Borrower and its subsidiaries, (ii) in the case of a sale, transfer, lease or other
disposition (including pursuant to a sale and leaseback transaction) of an asset, the amount of all payments required to be made by the Borrower and its subsidiaries as a result of such event to repay debt for borrowed money secured by such
asset and (iii) the amount of all taxes paid (or reasonably estimated to be payable) by the Borrower and its subsidiaries, and the amount of any reserves established by the Borrower and its subsidiaries in accordance with GAAP or other
applicable accounting standards, provided that if the amount of such reserves exceeds the amounts charged against such reserve, then such excess, upon determination
thereof, shall then constitute Net Cash Proceeds.
|
||
“Qualifying Term Loan Facility” shall mean a term loan facility entered into by the Borrower for the purpose of financing the Transactions that is subject to conditions precedent to funding
that are no less favorable to the Borrower than the conditions set forth herein to the funding of the Facility, as determined by the Borrower in its reasonable discretion.
|
||
|
Notwithstanding anything to the contrary above, mandatory repayments and commitment reductions with respect to Net Cash Proceeds received by a foreign subsidiary of the Borrower pursuant to clauses (b) or (d)
above shall not be required if and for so long as the Borrower has determined in good faith that repatriation to the Borrower to make any such payments would have adverse tax consequences or would violate applicable local law or the
applicable organizational documents of such foreign subsidiary.
|
|
Amounts prepaid pursuant to any mandatory prepayment of the Loans may not be reborrowed. Mandatory prepayments and commitment reductions shall be allocated first to any outstanding Loans, and second to any
outstanding commitments. The Borrower shall provide written notice to the Arrangers and the Administrative Agent of any required prepayments or commitment reductions.
|
|
The Lenders’ commitments under the Facility will terminate on the earliest to occur of (a) 11:59 p.m. on the date that is 5 business days after the End Date (as defined in the Acquisition
Agreement as in effect on the date hereof and after giving effect to any extension thereof pursuant to Section 10.01(b)(i) of the Acquisition Agreement as in effect on the date hereof), (b) the consummation of the Acquisition without the use
of the Facility and (c) the date of any public announcement by the Borrower of the abandonment by the Borrower of the Acquisition or termination in accordance with the terms of the Acquisition Agreement of the Borrower’s obligations under the
Acquisition Agreement to consummate the Acquisition.
|
Conditions to Effective Date:
|
Subject to Limited Conditionality Provision, the effectiveness of the Credit Documentation will be subject solely to (i) execution and delivery to the Administrative Agent of the Credit Documentation by each party thereto, (ii) payment of reasonable out-of-pocket expenses of
the Administrative Agent, the Arrangers and the Lenders invoiced at least 3 business days prior to the Effective Date (defined below), (iii) delivery of all documentation and other information required by regulatory authorities under
applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act at least 3 business days prior to the Effective Date (to the extent requested in writing by the Arrangers at
least 10 business days prior to the Effective Date), and (iv) the Administrative Agent (or its counsel) receiving organizational documents, resolutions and an incumbency certificate from the Borrower. The date on which the foregoing
conditions precedent are satisfied is referred to as the “Effective Date”.
|
The occurrence of the Effective Date shall be confirmed by a written notice from the Administrative Agent to the Borrower on the Effective Date, and shall be conclusive evidence of the occurrence thereof.
|
Conditions to Availability of Loans on the Closing Date:
|
The Loans shall be available on the date (the “Closing Date”) on which the Funding Conditions are satisfied or waived.
|
Actions Between Effective Date and Funding:
|
During the period from and including the Effective Date to and including the termination of all commitments with respect to the Facility (the “Certain Funds Period”), and notwithstanding
(i) that any representation made on the Effective Date was incorrect, (ii) any failure by the Borrower to comply with the affirmative covenants and negative covenants, (iii) any provision to the contrary in any Credit Documentation or
otherwise or (iv) that any condition to the occurrence of the Effective Date may subsequently be determined not to have been satisfied, neither the Administrative Agent nor any Lender shall be entitled to (1) cancel any of its commitments
under the Facility (except as set forth in “Mandatory Prepayments and Commitment Reductions” above), (2) rescind, terminate or cancel the Credit Documentation or exercise any right or remedy or make or
enforce any claim under the Credit Documentation, related notes, related fee letter or otherwise it may have to the extent to do so would prevent, limit or delay the making of its Loan, (3) refuse to participate in making its Loan; provided that the Funding Conditions have been satisfied or waived, or (4) exercise any right of set-off or counterclaim in respect of its Loan to the extent to
do so would prevent, limit or delay the making of its Loan. For the avoidance of doubt, (A) the rights and remedies of the Lenders and the Administrative Agent shall not be limited in the event that any Funding Condition is not
satisfied or waived on the Closing Date and (B) immediately after the expiration of the Certain Funds Period, all of the rights, remedies and entitlements of the Administrative Agent and the Lenders shall
be available notwithstanding that such rights were not available prior to such time as a result of the foregoing.
|
The Credit Documentation shall contain representations, warranties, covenants and events of default based on and substantially similar to the Existing 2018 Credit Agreement, and shall contain only
the representations, warranties, covenants and events of default set forth below.
|
|
|
For purposes hereof, including the Commitment Letter and all attachments thereto, the term “substantially similar to the Existing 2018 Credit Agreement” and words of similar import mean substantially the same as
(and no less favorable to the Borrower than) the Existing 2018 Credit Agreement as of the date of the Commitment Letter with modifications (a) as are necessary to reflect the terms specifically set forth in the Commitment Letter (including
the exhibits thereto) (including the nature of the Facility as a bridge facility) and the Fee Letter, (b) to reflect any changes in law or accounting standards since the date of the Existing 2018 Credit Agreement, in each case subject to the
consent of the Borrower (such consent not to be unreasonably withheld or delayed), (c) to reflect the operational or administrative requirements of the Administrative Agent as reasonably agreed by the Borrower, to the extent such requirements
have been generally required by the Administrative Agent in documenting other credit facilities similar to the Facility, (d) to accommodate the structure of the Acquisition and the operational and strategic requirements of the Borrower and
its subsidiaries (including as to the operational and strategic requirements of the Target and its subsidiaries), particularly in light of the industries, businesses, business practices of the Target and its subsidiaries, the Borrower’s
proposed business plan and the disclosure schedules to the Acquisition Agreement, in each case on terms reasonably agreed by the Arrangers, and (e) to the extent not inconsistent with the terms of the Commitment Letter (including all exhibits
thereto), as agreed by the Borrower and MSSF after good faith consideration of comments from MSSF and the syndicate of Lenders, on one hand, or the Borrower, on the other.
|
Representations and Warranties:
|
Substantially similar to the Existing 2018 Credit Agreement and limited to the following: organization; powers; authorization; execution, delivery and enforceability; governmental approvals;
financial statements; no material adverse effect; litigation; compliance with laws; federal reserve regulations; use of proceeds; taxes; employee benefit plans; environmental and safety matters; properties; investment and holding company
status; solvency as of the Closing Date (after giving effect to the Transactions) of the Borrower and its subsidiaries on a consolidated basis (to be consistent with the solvency certificate in the form set forth in Schedule 1 to Exhibit B
hereto); sanctions, anti-corruption and anti-money laundering laws; provided, that the representation in Section 3.14 of the Existing 2018 Credit Agreement shall be modified to (i) limit the exception for FCPA violations to the extent
disclosed in the Borrower’s 10-K to those FCPA violations disclosed in the Borrower’s most recent 10-K as of the date hereof and (ii) limit the “knowledge” qualifier with respect to violations of anti-money laundering laws to the knowledge of
the Borrower with respect to employees or Affiliates of the Borrower.
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Subject to the Limited Condition Provisions, all representations and warranties shall be made both on the Effective Date and on the Closing Date (with such representations and warranties made on
the Closing Date being made after giving pro forma effect to the Transactions); provided that the Specified Representations related to solvency and use of proceeds shall only be made on the Closing Date.
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Affirmative Covenants:
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Substantially similar to the Existing 2018 Credit Agreement, and limited to the following: existence; business and properties; financial statements, reports, etc.; insurance; obligations and
taxes; litigation and other notices; books and records; ratings; compliance with laws.
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Financial Covenant:
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None.
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Negative Covenants:
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Substantially similar to the Existing 2018 Credit Agreement, and limited to the following: liens; consolidations, mergers and sales of assets; limitation on sale and leaseback transactions;
sanctions; and anti-corruption laws.
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Notwithstanding anything to the contrary contained herein, the covenants under the Credit Documentation (including those set forth under the headings “Affirmative Covenants,” and “Negative
Covenants” herein) shall apply to the Borrower from and after the Effective Date.
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Events of Default:
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Substantially similar to the Existing 2018 Credit Agreement, and limited to the following: nonpayment of principal when due; nonpayment of interest, fees or other amounts after a three business
day grace period; material inaccuracy of representations and warranties; violation of covenants (subject, in the case of certain affirmative covenants, to grace periods consistent with the Existing 2018 Credit Agreement); cross-payment
default and cross-acceleration; bankruptcy events; material judgments; change of control; certain ERISA events; and to the extent there are any guarantees of the Facility then in effect, actual or asserted invalidity of such guarantees under
the Credit Documentation.
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Voting:
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Substantially similar to Existing 2018 Credit Agreement.
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Assignments and Participations:
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Assignments of commitments shall be subject to the limitations set forth in the Commitment Letter. Assignments of Loans shall be subject to limitations substantially similar to the Existing 2018
Credit Agreement; provided that no consent of the Borrower or the Administrative Agent will be required in connection with an assignment to an approved fund.
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Yield Protection:
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Substantially similar to the Existing 2018 Credit Agreement.
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Expenses and Indemnification:
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Substantially similar to the Existing 2018 Credit Agreement, subject to changes to conform to Section 6 of the Commitment Letter.
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Governing Law and Forum:
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New York (except that (a) the interpretation of Acquired Business Material Adverse Effect and whether an Acquired Business Material Adverse Effect has occurred, (b) the accuracy of any Acquisition
Agreement Representation and whether as a result of a breach thereof the Borrower (or any of its subsidiaries) have the right to terminate its (or their) obligations under the Acquisition Agreement, or to decline to consummate the Acquisition
pursuant to the Acquisition Agreement and (c) whether the Acquisition has been consummated in accordance with the Acquisition Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware, without regard
to the conflicts of laws rules or principles that would result in the application of the law of any other state). Each party to the Credit Documentation will waive the right to trial by jury and will consent to the exclusive jurisdiction of
the state and federal courts located in the County of New York.
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Counsel to the Administrative Agent and the Arrangers:
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Davis Polk & Wardwell LLP.
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Interest and Certain Fees |
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Interest Rate Options:
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The Borrower may elect that the Loans bear interest at a rate per annum equal to:
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(i) the ABR plus the Applicable Margin; or
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(ii) the Adjusted LIBO Rate plus the Applicable Margin.
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As used herein:
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“ABR” means, for any day, a fluctuating rate per annum equal to the highest of (i) the federal funds effective rate from time to time plus 0.50%, (ii) the rate of interest per annum
from time to time published in the “Money Rates” section of The Wall Street Journal as being the “Prime Lending Rate” or, if more than one rate is published as the Prime Lending Rate, then the highest
of such rates (the “Prime Rate”) (each change in the Prime Rate to be effective as of the date of publication in The Wall Street Journal of a “Prime Lending Rate” that is different from that
published on the preceding domestic business day); provided, that in the event that The Wall Street Journal shall, for any reason, fail or cease to publish the Prime Lending Rate, the
Administrative Agent shall choose a reasonably comparable index or source to use as the basis for the Prime Lending Rate and (iii) the one month Adjusted LIBO Rate plus 1.00%. In no event shall the ABR be less than 0.00%. Each
change in any interest rate provided for herein based upon the ABR resulting from a change in the Prime Lending Rate, the federal funds effective rate or the Adjusted LIBO Rate shall take effect at the time of such change in the Prime Lending
Rate, the federal funds effective rate, or the Adjusted LIBO Rate, respectively.
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“Adjusted LIBO Rate” means the LIBO Rate, as adjusted for statutory reserve requirements for eurocurrency liabilities (if any). In no event shall the Adjusted LIBO Rate be less than 0.00%.
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“Applicable Margin” means the percentage determined in accordance with the pricing grid attached hereto as Annex I-A (the “Pricing Grid”) based on the rating as determined by S&P
and Moody’s of the Borrower’s non-credit enhanced senior unsecured long-term debt (the “Rating”).
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“LIBO Rate” means the rate for eurodollar deposits in the London interbank market for a period of one, two, three or six months, in each case as selected by the Borrower, appearing on Page
LIBOR01 or LIBOR02 of the Reuters screen (or applicable successor page) that displays such rate.
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Interest Payment Dates:
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In the case of Loans bearing interest based upon the ABR (“ABR Loans”), quarterly in arrears on the last business day of each March, June, September and December.
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In the case of Loans bearing interest based upon the Adjusted LIBO Rate (“LIBOR Loans”), on the last day of each relevant interest period and, in the case of any interest period longer than three months, on
each successive date three months after the first day of such interest period.
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Commitment Fees:
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Without duplication of any “Ticking Fees” (as defined in the Fee Letter), payable under the Fee Letter, the Borrower shall pay, or cause to be paid, commitment fees (the “Commitment Fees”)
to each Lender under the Facility calculated at a rate per annum equal to the “Applicable Commitment Fee Rate” on the daily average undrawn commitments of such Lender under the Facility, accruing during the period commencing on the later of
(i) the date that is 90 days following the date of the Commitment Letter and (ii) the date of execution of the credit agreement for the Facility, payable on the Closing Date (or earlier termination of the commitments with respect to the
Facility).
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“Applicable Commitment Fee Rate” means the percentage
determined in accordance with the Pricing Grid.
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Duration Fees:
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The Borrower shall pay, or cause to be paid, duration fees (the “Duration Fees”) for the account of each Lender in amounts equal to the percentage as determined in accordance with the grid
below, of the principal amount of the Loan of such Lender outstanding at the close of business, New York City time, on each date set forth in the grid below, payable on each such date:
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Duration Fee
|
|||
90 days after the Closing Date
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180 days after the Closing Date
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270 days after the Closing Date
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0.50%
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0.75%
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1.00%
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Default Rate:
|
If any principal of or interest on any Loan or any fee or any other amount payable by the Borrower under the Credit Documentation is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus the rate otherwise applicable to such Loan or (ii)
in the case of any other amount, 2.00% plus the rate applicable to ABR Loans.
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Rate and Fee Basis:
|
All per annum rates shall be calculated on the basis of a year of 360 days (or 365/366 days, in the case of ABR Loans the interest rate payable on which is then based on the Prime Rate) for actual
days elapsed.
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Borrower’s Rating Level (S&P or Moody’s)
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Applicable Margin
|
Applicable Commitment Fee Rate
|
|||||||
Closing Date through 89 days after Closing Date
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90 days after Closing Date through 179 days after Closing Date
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180 days after Closing Date through 269 days after Closing Date
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270 days after Closing Date and thereafter
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||||||
ABR
Loans
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LIBOR
Loans
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ABR
Loans
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LIBOR
Loans
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ABR
Loans
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LIBOR
Loans
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ABR
Loans
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LIBOR
Loans
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BRISTOL-MYERS SQUIBB COMPANY
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By:
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Name:
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[_______]
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Title:
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[_______]
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