UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 

FORM 8-K

 
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported): November 20, 2019
 
 
BRISTOL-MYERS SQUIBB COMPANY
(Exact name of registrant as specified in its charter)

 
Delaware
001-01136
22-0790350
 (State or Other Jurisdiction of Incorporation)
(Commission File Number)
(IRS Employer Identification Number)

430 East 29th Street, 14th Floor
New York, NY, 10016
(Address of Principal Executive Office)

Registrant’s telephone number, including area code: (212) 546-4000

 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
☐
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))
 
Securities registered pursuant to Section 12(b) of the Act:

Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, $0.10 Par Value
BMY
New York Stock Exchange
1.000% Notes due 2025
BMY 25
New York Stock Exchange
1.750% Notes due 2035
BMY 35
New York Stock Exchange
Bristol-Myers Squibb Contingent Value Rights
BMY RT New York Stock Exchange
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
 
Emerging growth company ☐
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
 
Item 1.01
Entry into a Material Definitive Agreement.

In connection with the acquisition of Celgene Corporation, a Delaware corporation (“Celgene”), by Bristol-Myers Squibb Company, a Delaware corporation (“BMS”), pursuant to the Merger Agreement (as defined below), on November 20, 2019, BMS entered into the Contingent Value Rights Agreement (the “CVR Agreement”) with Equiniti Trust Company, a limited trust company organized under the laws of the state of New York, as trustee. The tradeable contingent value rights (the “CVRs”) represent the right to receive $9.00 in cash if a specified set of milestones is achieved, as set forth in the CVR Agreement.

The description of the CVR Agreement contained in this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the full text of the CVR Agreement, a copy of which is filed hereto as Exhibit 4.1 to this Current Report on Form 8-K, and the terms of which are incorporated herein by reference.

Item 2.01
Completion of Acquisition or Disposition of Assets.

On November 20, 2019 (the “Closing Date”), BMS completed the previously announced acquisition of Celgene contemplated pursuant to the terms and conditions of the Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 2, 2019, by and among BMS, Burgundy Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of BMS (“Merger Sub”), and Celgene.  Under the Merger Agreement, Merger Sub merged with and into Celgene with Celgene surviving as a direct wholly owned subsidiary of BMS (the “Merger”).
 
At the effective time of the Merger (the “Merger Effective Time”), each share of Celgene common stock issued and outstanding immediately prior to the Merger Effective Time (other than certain excluded shares as described in the Merger Agreement) was automatically converted into the right to receive (1) $50.00 in cash, without interest, (2) one share of BMS common stock, par value $0.10 per share, (the “Common Stock”) and (3) one CVR (collectively, the “Merger Consideration”). No fractional shares of Common Stock will be issued in the Merger, and Celgene’s former stockholders will receive cash in lieu of any fractional shares of Common Stock.
 
In addition, at the Merger Effective Time:
 
(i) each In-the-Money Option (as defined in the Merger Agreement), was assumed by BMS and converted into an option to purchase, on the same terms and conditions as applied to each In-the-Money Option prior to the Merger Effective Time, shares of Common Stock, except that (A) the number of shares of Common Stock subject to such In-the-Money Option shall equal the product of (1) the number of shares of Celgene common stock underlying each such award immediately prior to the Merger Effective Time, multiplied by (2) 1.86 (the “Equity Award Exchange Ratio”), rounded down to the nearest whole number of shares of Common Stock, and (B) the per share exercise price of such converted In-the-Money Option shall be equal to the quotient of (x) the exercise price per share of Celgene common stock at which such In-the-Money Option was exercisable immediately prior to the Merger Effective Time, divided by (y) the Equity Award Exchange Ratio (rounded up to the nearest whole cent) and, if such In-the-Money Option was vested prior to the Merger Effective Time, one CVR for each share of Celgene common stock underlying such In-the-Money Option, or if such In-the-Money was not vested immediately prior to the Merger Effective Time, immediately upon and subject to the vesting of the In-the-Money Option, the Unvested Equity Award CVR Consideration (as defined in the Merger Agreement);
 
(ii) each Out-of-the-Money Option (as defined in the Merger Agreement) was assumed by BMS and converted into an option to purchase, on the same terms and conditions as applied to each Out-of-the-Money Option immediately prior to the Merger Effective Time, shares of Common Stock, except that (A) the number of shares of Common Stock subject to such Out-of-the-Money Option shall equal the product of (1) the number of shares of Celgene common stock underlying each such award immediately prior to the Merger Effective Time, multiplied by (2) 1.87 (the “Out-of-the-Money Option Exchange Ratio”), rounded down to the nearest whole number of shares of Common Stock, and (B) the per-share exercise price shall be equal to the quotient of (x) the exercise price per share of Celgene common stock at which such Out-of-the-Money Option was exercisable immediately prior to the Merger Effective Time, divided by (y) the Out-of-the-Money Option Exchange Ratio (rounded up to the nearest whole cent);
 
(iii) each restricted stock unit award with respect to shares of Celgene common stock that vests solely based on the passage of time was assumed by BMS and converted into (A) a restricted unit award that settles in a number of shares of Common Stock equal to (1) the number of shares of Celgene common stock underlying such equity award immediately prior to the Merger Effective Time multiplied by (2) the Equity Award Exchange Ratio, rounded up to the nearest whole number of shares of Common Stock, and (B) the right to receive, immediately upon, and subject to, the vesting of such equity award, the Unvested Equity Award CVR Consideration;

(iv) each restricted stock unit award with respect to shares of Celgene common stock that vests solely based on the achievement of performance goals was assumed by BMS and converted into (A) a restricted unit award that settles in a number of shares of Common Stock equal to the product of (1) the number of Celgene common stock underlying such equity award immediately prior to the Merger Effective Time (with such number of shares determined by deeming the applicable performance goals to be achieved at the greater of the target level and the actual level of achievement through the end of the calendar quarter immediately preceding the quarter in which the Merger Effective Time occurs, as determined by the Management Compensation and Development Committee of the board of directors of Celgene prior to the Merger Effective Time), multiplied by (2) the Equity Award Exchange Ratio, rounded up to the nearest whole number of shares of Common Stock, and (B) the right to receive, immediately upon, and subject to, the vesting of such equity award, the Unvested Equity Award CVR Consideration; and
 
(v) each restricted stock award with respect to shares of Celgene common stock that vests based on the passage of time and/or the achievement of performance goals was assumed by BMS and converted into (A) a restricted stock award that settles in a number of shares of Common Stock equal to (1) the number of shares of Celgene common stock underlying such equity award immediately prior to the Merger Effective Time multiplied by (2) the Equity Award Exchange Ratio, rounded up to the nearest whole number of shares of Common Stock, and (B) the right to receive, immediately upon, and subject to, the vesting of such equity award, the Unvested Equity Award CVR Consideration.
 
In respect of Celgene common stock issued and outstanding immediately prior to the Merger Effective Time, BMS will deliver approximately 714.9 million shares of Common Stock, deliver approximately 714,909,545 CVRs and pay an aggregate of approximately $35.74 billion in cash to former Celgene shareholders in exchange for Celgene common shares. Further, in respect of outstanding Celgene equity awards, BMS has an additional obligation to deliver approximately 137,431,067 shares of Common Stock and 43,411,619 CVRs (or CVR consideration) to former Celgene equity award holders in exchange for their outstanding equity awards in accordance with the terms of the Merger Agreement.
 
The description of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement.  This description is not intended to modify or supplement any factual disclosures about BMS and should not be relied upon as disclosure about BMS without consideration of any periodic and current reports and statements of BMS. The terms of the Merger Agreement govern the contractual rights and relationships, and allocate risks, among the parties in relation to the transactions contemplated by the Merger Agreement. In particular, the representations, warranties and covenants contained in the Merger Agreement were made only for purposes of such agreement and as of the dates specified therein, were solely for the benefit of the parties thereto and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of BMS. Moreover, information concerning the subject matter of any representations, warranties and covenants may change after the dates of the Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures by BMS.  The Merger Agreement was filed as Exhibit 2.1 to BMS’s Current Report on Form 8-K dated January 2, 2019 and filed on January 4, 2019 and the terms of which are incorporated by reference as Exhibit 2.1 hereto and into this Item 2.01.

Item 2.03
Creation of a Direct Financial Obligation or an Obligation Under an Off- Balance Sheet Arrangement of a Registrant

CVRs

The information set forth in Items 1.01 and 2.01 of this Current Report on Form 8-K with respect to the CVRs is incorporated by reference into this Item 2.03.

Borrowing Under BMS Term Loan Credit Agreement

As previously reported, on January 18, 2019, BMS entered into the Term Loan Credit Agreement, (the “Term Loan Credit Agreement”), among BMS, the lenders party thereto and Morgan Stanley Senior Funding, Inc., as administrative agent.  On November 20, 2019, BMS borrowed $8.0 billion under the Term Loan Credit Agreement to fund a portion of the cash consideration paid to Celgene shareholders in connection with the Merger.

The description of the Term Loan Credit Agreement contained in this Item 2.03 does not purport to be complete and is qualified in its entirety by reference to the full text of the Term Loan Credit Agreement.  The Term Loan Credit Agreement was filed as Exhibit 10.1 to BMS’s Current Report on Form 8-K dated January 18, 2019 and filed on January 22, 2019 and the terms of which are incorporated herein by reference.

Certain of the financial institutions party to the Term Loan Credit Agreement, either directly or through affiliates, have performed, and may in the future perform, various commercial banking, investment banking and other financial advisory services in the ordinary course of business for BMS and in connection with the Merger for which they have received, and will receive, customary fees and commissions.

Item 5.02
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

In connection with the completion of the Merger, and effective upon the Merger Effective Time, the Compensation and Management Development Committee of the Board of Directors of BMS approved the adoption and amendment and restatement of the Celgene Corporation 2017 Stock Incentive Plan (the “Legacy 2017 Plan”) and the Celgene Corporation 2014 Equity Incentive Plan (F/K/A Juno Therapeutics, Inc. 2014 Equity Incentive Plan) (the “Legacy 2014 Plan”, together with the Legacy 2017 Plan, the “Plans”) to confirm and preserve BMS’s ability to issue under the Plans the shares that remain available for issuance thereunder (as appropriately adjusted to reflect the Merger) in satisfaction of the vesting, exercise or other settlement of equity awards that may be granted by BMS under the Plans following the completion of the Merger, subject to the requirements of the NYSE Listed Company Manual and interpretive guidance thereunder, including, without limitation, Rule 303A.08.

Item 8.01
Other Events.

Press Release

On November 20, 2019, BMS issued a press release announcing the completion of the Merger and its entry into the accelerated share repurchase agreements.  A copy of the press release is attached hereto as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.

Accelerated Share Repurchase

On November 18, 2019 BMS’s Board of Directors approved, and on November 20, 2019 BMS entered into, accelerated share repurchase (“ASR”) transactions under agreements with Morgan Stanley & Co. LLC and Barclays Bank PLC (each, an “ASR Agreement” and collectively, the “ASR Agreements”) to repurchase an aggregate $7.0 billion (the “Repurchase Price”) of Common Stock.

Under the terms of the ASR Agreements, on November 27, 2019, BMS will pay the Repurchase Price and receive Common Stock with an aggregate value of 80% of the Repurchase Price.  The final number of shares to be repurchased under each ASR Agreement will be based on the average of the daily volume-weighted average prices of the Common Stock for those dates during the term of the applicable ASR transaction as are specified in such ASR Agreement, less a discount and subject to adjustments pursuant to the terms and conditions of such ASR Agreement.  Upon final settlement of each ASR Agreement, BMS may be entitled to receive additional shares of Common Stock from the applicable bank or, under certain circumstances specified in the ASR Agreements, BMS may be required to deliver shares of Common Stock or make a cash payment, at its option, to the applicable bank.

The ASR Agreements contain provisions customary for agreements of this type, including provisions for adjustments to the transaction terms, the circumstances generally under which the ASR Agreement may be accelerated, extended or terminated early by the applicable bank and various acknowledgments, representations and warranties made by the parties to one another. The ASR transactions are scheduled to terminate in the second quarter of 2020, but each may conclude earlier at the election of the applicable bank.

                Morgan Stanley & Co. LLC and Barclays Bank PLC, either directly or through affiliates, have performed, and may in the future perform, various commercial banking, investment banking and other financial advisory services in the ordinary course of business for BMS and in connection with the Merger for which they have received, and will receive, customary fees and commissions.

Assumption of Celgene CVRs Pursuant to the Merger

In connection with the Merger, BMS agreed to assume the contingent value rights (the “Celgene CVRs”) issued by Celgene pursuant to the Contingent Value Rights Agreement, dated as of October 15, 2010 (“Celgene CVR Agreement”), by and between Celgene and American Stock Transfer & Trust Company, LLC, as trustee. Celgene issued the Celgene CVRs as part of the merger consideration pursuant to that certain Agreement and Plan of Merger, dated as of June 30, 2010 (as amended) by and among Celgene, Artistry Acquisition Corp., a Delaware corporation, and Abraxis BioScience, Inc., a Delaware corporation (“Abraxis”), on October 15, 2010.  On October 15, 2010, Celgene issued 43,273,855 Celgene CVRs.

Following the consummation of the Merger, Celgene assigned its rights and obligations under the Celgene CVR Agreement (the “Assignment”) to BMS pursuant to the Assignment, Assumption and Amendment Agreement, dated as of November 20, 2019 (the “Amendment Agreement”), among BMS, Celgene, American Stock Transfer & Trust Company, LLC and Equiniti Trust Company, a limited trust organized under the laws of the State of New York. The Assignment will become effective immediately after the Celgene CVRs have been listed on the New York Stock Exchange.

In connection with its assumption of the Celgene CVR Agreement, BMS will be subject to all of the obligations of Celgene outlined in the Celgene CVR Agreement, as amended by the Amendment Agreement. Each Celgene CVR entitles its holder to receive a pro rata portion, based on the number of the Celgene CVRs then outstanding, for each full one-year period ending December 31st during the term of the Celgene CVR Agreement, the following cash payments: (1) 2.5% of the net sales of Abraxane® and the Abraxis pipeline product, that exceed $1 billion but are less than or equal to $2 billion for such period, plus (2) an additional amount equal to 5% of the net sales of Abraxane® and the Abraxis pipeline products that exceed $2 billion but are less than or equal to $3 billion for such period, plus (3) an additional amount equal to 10% of the net sales of Abraxane® and the Abraxis pipeline products that exceed $3 billion for such period.  In addition, each holder of a Celgene CVR was entitled to receive a pro rata portion of two potential contingent milestone payments. The first contingent milestone payment was not achieved, as the October 2012 FDA approval of ABRAXANE® for use in the treatment of non-small cell lung cancer did not result in the use of a marketing label that included a progression-free survival claim. The second contingent milestone payment was achieved upon the FDA approval of ABRAXANE® for use in the treatment of pancreatic cancer permitting Celgene to market with a label that included an overall survival claim. This approval resulted in a subsequent payment of $300 million to Celgene CVR holders in October 2013.

The description of the Amendment Agreement contained in this Item 8.01 does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment Agreement, a copy of which is filed hereto as Exhibit 4.2 to this Current Report on Form 8-K, and the terms of which are incorporated herein by reference.

Item 9.01
Financial Statements and Exhibits.

(a) Financial Statements of Business Acquired

The financial statements required by this Item 9.01(a) are not included in this Current Report on Form 8-K.  BMS intends to file such financial statements by amendment to this Current Report on Form 8-K not later than 71 calendar days after the date this Current Report on Form 8-K is required to be filed.

(b) Pro Forma Financial Information

The pro forma financial information required by this Item 9.01(b) is not included in this Current Report on Form 8-K.  BMS intends to file such pro forma financial information by amendment to this Current Report on Form 8-K not later than 71 calendar days after the date this Current Report on Form 8-K is required to be filed.

(d) Exhibits

The following exhibits are included as part of this Current Report on Form 8-K:

Exhibit
No.
 
Description
   
2.1
 
Agreement and Plan of Merger, dated as of January 2, 2019, among Bristol-Myers Squibb Company, Burgundy Merger Sub, Inc. and Celgene Corporation (incorporated by reference to Exhibit 2.1 to the Bristol-Myers Squibb’s Current Report on Form 8-K dated January 2, 2019 and filed on January 4, 2019)*
     
4.1
 
Contingent Value Rights Agreement, dated as of November 20, 2019, by and between Bristol-Myers Squibb Company and Equiniti Trust Company, as trustee, including the Form of CVR Certificate as Annex A.
     
4.2
 
Assignment, Assumption and Amendment Agreement, dated as of November 20, 2019, among Bristol-Myers Squibb Company, Celgene Corporation, American Stock Transfer & Trust Company, LLC and Equiniti Trust Company.
     
25.1
 
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Equiniti Trust Company, dated as of November 18, 2019.
     
99.1
 
Press Release of Bristol-Myers Squibb Company, dated November 20, 2019.
     
104
 
The cover page from this Current Report on Form 8-K formatted in Inline XBRL (included as Exhibit 101).

* The schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Bristol-Myers Squibb Company hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission; provided, however, that Bristol-Myers Squibb Company may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedules so furnished.

EXHIBIT INDEX
 
Exhibit
No.
 
Description
   
2.1
 
Agreement and Plan of Merger, dated as of January 2, 2019, among Bristol-Myers Squibb Company, Burgundy Merger Sub, Inc. and Celgene Corporation (incorporated by reference to Exhibit 2.1 to the Bristol-Myers Squibb’s Current Report on Form 8-K dated January 2, 2019 and filed on January 4, 2019)*
     
4.1
 
Contingent Value Rights Agreement, dated as of November 20, 2019, by and between Bristol-Myers Squibb Company and Equiniti Trust Company, as trustee, including the Form of CVR Certificate as Annex A.
     
4.2
 
Assignment, Assumption and Amendment Agreement, dated as of November 20, 2019, among Bristol-Myers Squibb Company, Celgene Corporation, American Stock Transfer & Trust Company, LLC and Equiniti Trust Company.
     
 
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Equiniti Trust Company, dated as of November 18, 2019.
     
 
Press Release of Bristol-Myers Squibb Company, dated November 20, 2019.
     
104
 
The cover page from this Current Report on Form 8-K formatted in Inline XBRL (included as Exhibit 101).

* The schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Bristol-Myers Squibb Company hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission; provided, however, that Bristol-Myers Squibb Company may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedules so furnished.

SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
BRISTOL-MYERS SQUIBB COMPANY
   
Dated: November 20, 2019
By:
/s/ Katherine R. Kelly
 
 
Name:
Katherine R. Kelly
 
Title:
Corporate Secretary


 
Exhibit 4.1

EXECUTION VERSION
 
CONTINGENT VALUE RIGHTS AGREEMENT
 
by and between
 
BRISTOL-MYERS SQUIBB COMPANY
 
and
 
EQUINITI TRUST COMPANY
 
Dated as of November 20, 2019
 
TABLE OF CONTENTS
 
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
8
 
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
11
 
Section 1.9
Benefits of Agreement
11
 
Section 1.10
Governing Law
12
 
Section 1.11
Legal Holidays
12
 
Section 1.12
Separability Clause
12
 
Section 1.13
No Recourse Against Others
12
 
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
20
 
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
23
 
Section 4.4
Not Responsible for Recitals or Issuance of Securities
23
 
Section 4.5
May Hold Securities
23
 
Section 4.6
Money Held in Trust
23
 
Section 4.7
Compensation and Reimbursement
23
 
Section 4.8
Disqualification; Conflicting Interests
24
 
Section 4.9
Corporate Trustee Required; Eligibility
24
 
Section 4.10
Resignation and Removal; Appointment of Successor
24

i
 
Section 4.11
Acceptance of Appointment of Successor
26
 
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
27
 
Section 5.1
Company to Furnish Trustee Names and Addresses of Holders
27
 
Section 5.2
Preservation of Information; Communications to Holders
27
 
Section 5.3
Reports by Trustee
27
 
Section 5.4
Reports by Company
28
       
ARTICLE 6 AMENDMENTS
28
 
Section 6.1
Amendments Without Consent of Holders
28
 
Section 6.2
Amendments with Consent of Holders
29
 
Section 6.3
Execution of Amendments
29
 
Section 6.4
Effect of Amendments; Notice to Holders
30
 
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
31
 
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
34
       
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
36
 
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
37
 
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
38
 
Section 8.10
Waiver of Past Defaults
39

ii
 
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
39
       
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
41
 
Section 10.3
Default on Senior Obligations
42
 
Section 10.4
When Distribution Must Be Paid Over
42
 
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
44
 
Section 10.10
Distribution or Notice to Representative
44
 
Section 10.11
Rights of the Trustee
45
 
Section 10.12
Authorization to Effect Subordination
45
 
Section 10.13
Amendments
45

Annex A — Form of Global Security
 
Annex B — Form of Assignment and Assumption Agreement
 
Note: This table of contents shall not, for any purpose, be deemed to be a part of this CVR Agreement.
 
iii
Reconciliation and tie between Trust Indenture Act of 1939 and Contingent Value Rights Agreement, dated as of November 20, 2019.
 
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

iv
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

Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of this CVR Agreement.
 
v
THIS CONTINGENT VALUE RIGHTS AGREEMENT, dated as of November 20, 2019 (this “CVR Agreement”), by and between Bristol-Myers Squibb Company, a Delaware corporation (the “Company”), and Equiniti Trust Company, a limited trust company organized under the laws of the state of New York, as trustee (the “Trustee”), in favor of each person who from time to time holds one or more Contingent Value Rights (the “Securities” or “CVRs”) to receive cash payments in the amounts and subject to the terms and conditions set forth herein.
 
WITNESSETH:
 
WHEREAS, this CVR Agreement is entered into pursuant to the Agreement and Plan of Merger, dated as of January 2, 2019 (as amended, supplemented or otherwise modified in accordance with its terms, the “Merger Agreement”), by and among the Company, Burgundy Merger Sub, Inc., a Delaware corporation and wholly owned Subsidiary of the Company (“Merger Sub”), and Celgene Corporation, a Delaware corporation (“Celgene”);
 
WHEREAS, pursuant to the Merger Agreement, Merger Sub will merge with and into Celgene (the “Merger”), with Celgene being the surviving corporation in the Merger and becoming a wholly-owned Subsidiary of the Company;
 
WHEREAS, the CVRs shall be issued in accordance with and pursuant to the terms of the Merger Agreement; and
 
WHEREAS, a registration statement on Form S-4 (No. 333-229464) with respect to the CVRs has been prepared and filed by the Company with the Commission (as defined below) and has become effective in accordance with the Securities Act of 1933, as amended.
 
NOW, THEREFORE, in consideration of the foregoing premises and the consummation of the transactions contemplated by the Merger Agreement, it is covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:
 
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
 
Section 1.1          Definitions.  For all purposes of this CVR Agreement, except as otherwise expressly provided or unless the context otherwise requires:
 
(a)          the terms defined in this Article 1 have the meanings assigned to them in this Article 1, and include the plural as well as the singular;
 
(b)         all capitalized terms used in this CVR Agreement without definition shall have the respective meanings ascribed to them in the Merger Agreement;
 
(c)        all other terms used herein which are defined in the Trust Indenture Act (as defined herein), either directly or by reference therein, have the respective meanings assigned to them therein;
 
1
(d)          the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this CVR Agreement as a whole and not to any particular Article, Section or other subdivision; and
 
(e)          whenever the words “include”, “includes” or “including” are used in this CVR Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import.
 
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
 
“Aggregate Milestone Payment” shall have the meaning set forth in Section 3.1(c) of this CVR Agreement.
 
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Security, the rules and procedures of the Depositary that apply to such transfer or exchange.
 
“BB2121” means a chimeric antigen receptor (“CAR”) T cell therapy targeting B-cell maturation antigen (BCMA).
 
“BB2121 Milestone” means the first approval by the FDA of a biologic license application (BLA) that grants Celgene, the Company or any of their respective Affiliates (or their respective successors and assigns) the right to commercially manufacture, market and sell BB2121 in the United States in accordance with applicable Law for the treatment of relapsed/refractory multiple myeloma in humans.
 
“BB2121 Milestone Target Date” means March 31, 2021.
 
“Board of Directors” means the board of directors of the Company or any other body performing similar functions, or any duly authorized committee of that board.
 
“Board Resolution” means a copy of a resolution certified by the chairman of the Board of Directors, the chief executive officer, the secretary or any assistant secretary of the Company, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
 
“Business Day” means any day (other than a Saturday or a Sunday) on which banking institutions in The City of New York, New York or any city in which the Corporate Trust Office of the Trustee is located are not authorized or obligated by Law or executive order to close and, if the CVRs are listed on a national securities exchange, electronic trading network or other suitable trading platform, such exchange, electronic network or other trading platform is open for trading.
 
“Celgene” shall have the meaning set forth in the Recitals of this CVR Agreement.
 
2
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
 
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act (as defined herein), or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
 
“Common Stock” shall have the meaning set forth in the Recitals of this CVR Agreement.
 
“Company” means the Person (as defined herein) named as the “Company” in the first paragraph of this CVR Agreement, until a successor Person shall have become such pursuant to the applicable provisions of this CVR Agreement, and thereafter “Company” shall mean such successor Person.  To the extent necessary to comply with the requirements of the provisions of Trust Indenture Act Sections 310 through 317, inclusive, to the extent that they are applicable to the Company, the term “Company” shall include any other obligor with respect to the Securities for the purposes of complying with such provisions.
 
“Company Request” or “Company Order” mean, respectively, a written request or order signed in the name of the Company by the chairman of the Board of Directors, the chief executive officer, any President or Vice President, the secretary or any assistant secretary or any other individual duly authorized to act on behalf of the Company for such purpose or for any general purpose, and delivered to the Trustee.
 
“Confidential Information” shall have the meaning set forth in Section 7.9 of this CVR Agreement.
 
“Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date of execution of this CVR Agreement is located at 1110 Centre Pointe Curve, Suite 101 Mendota Heights, Minnesota 55120-4101 or such other address as the Trustee may designate from time to time by notice to the Company.
 
“CVRs” shall have the meaning set forth in the Preamble of this CVR Agreement.
 
“CVR Agreement” means this instrument as originally executed and as it may from time to time be supplemented or amended pursuant to the applicable provisions hereof.
 
“Default Interest Rate” means a rate equal to the sum of three percent (3%) plus the prime rate of interest quoted in the Money Rates section of The Wall Street Journal (New York Edition), or similar reputable data source, calculated daily on the basis of a three hundred sixty-five (365) day year or, if lower, the highest rate permitted under applicable Law.
 
“Depositary” shall have the meaning set forth in Section 3.2 of this CVR Agreement.
 
3
“Diligent Efforts” means, with respect to any Product, efforts of a Person to carry out its obligations in a diligent manner using such effort and employing such resources normally used by such Person in the exercise of its reasonable business discretion relating to the research, development or commercialization of a product, that is of similar market potential at a similar stage in its development or product life, taking into account issues of market exclusivity (including patent coverage, regulatory and other exclusivity), safety and efficacy, product profile (including tolerability and convenience), the competitiveness of alternate products in the marketplace or under development, the launch or sales of one or more generic or biosimilar products, actual or likely pricing/reimbursement for the product, the likely timing of the product’s entry into the market, the likelihood of regulatory approval of the product and applicable labeling, and the profitability of the applicable product, and other relevant factors, including technical, commercial, legal, scientific, and/or medical factors, based on conditions then prevailing.
 
“Direct Registration Securities” means Securities, the ownership of which is recorded on the Direct Registration System.  The terms “deliver,” “execute,” “issue,” “register,” “surrender,” “transfer” or “cancel,” when used with respect to Direct Registration Securities, shall refer to an entry or entries or an electronic transfer or transfers in the Direct Registration System.
 
“Direct Registration System” means the system for the uncertificated registration of ownership of securities established by the Security Registrar and utilized by the Security Registrar pursuant to which the Security Registrar may record the ownership of CVRs without the issuance of a certificate, which ownership shall be evidenced by periodic statements issued by the Security Registrar to the Holders entitled thereto.
 
“Event of Default” shall have the meaning set forth in Section 8.1 of this CVR Agreement.
 
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
 
“Exchange Act Documents” shall have the meaning set forth in Section 5.4(a) of this CVR Agreement.
 
“FDA” means the United States Food and Drug Administration or any successor agency.
 
“Global Securities” means one or more securities in registered form, substantially in the form set forth in Annex A, and held by, or on behalf of, a Depositary.
 
“Governmental Entity” means any domestic (federal or state), or foreign court, commission, governmental body, regulatory or administrative agency or other political subdivision thereof.
 
“Holder” means a Person in whose name a Security is registered in the Security Register.
 
“Indirect Participant” means a Person who holds a beneficial interest in a Global Security through a Participant.
 
“Initial Milestone Target Date” means December 31, 2020.
 
“JCAR017” means a CAR T cell therapy targeting CD-19.
 
“JCAR017 Milestone” means the first approval by the FDA of a biologic license application (BLA) that grants Celgene, the Company or any of their respective Affiliates (or their respective successors and assigns) the right to commercially manufacture, market and sell JCAR017 in the United States in accordance with applicable Law for the treatment of any relapsed-refractory diffuse large B cell lymphoma in humans.
 
4
“Junior Obligations” has the meaning set forth in Section 10.1.
 
“Law” means any foreign, federal, state, local or municipal laws, rules, judgments orders, regulations, statutes, ordinances, codes, decisions, injunctions, orders, decrees or requirements of any Governmental Entity.
 
“Majority Holders” means, at the time of determination, Holders of at least a majority of the Outstanding CVRs.
 
“Merger” shall have the meaning set forth in the Recitals of this CVR Agreement.
 
“Merger Agreement” shall have the meaning set forth in the Recitals of this CVR Agreement.
 
“Merger Sub” shall have the meaning set forth in the Recitals of this CVR Agreement.
 
“Milestone” means the satisfaction of all (but not less than all) of the following: (i) the BB2121 Milestone has occurred on or prior to the BB2121 Milestone Target Date; (ii) the JCAR017 Milestone has occurred on or prior to the Initial Milestone Target Date; and (iii) the Ozanimod Milestone has occurred on or prior to the Initial Milestone Target Date.
 
“Milestone Payment” means nine dollars ($9.00) per CVR.
 
“Milestone Payment Date” means, with respect to the Milestone, the date that is selected by the Company that is no later twenty (20) Business Days following the first date on which the Milestone is achieved.
 
“Milestone Payment Record Date” shall have the meaning set forth in Section 3.1(c) of this CVR Agreement.
 
“Officer’s Certificate” when used with respect to the Company means a certificate signed by the chairman of the Board of Directors, the chief executive officer, any President or Vice President, the secretary or any assistant secretary or any other individual authorized to act on behalf of the Company, and delivered to the Trustee.
 
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company.
 
“Outstanding” when used with respect to Securities means, as of the date of determination, all Securities theretofore authenticated, as applicable, and delivered under this CVR Agreement, except: (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation and (ii) Securities in exchange for or in lieu of which other Securities have been authenticated, as applicable, and delivered pursuant to this CVR Agreement, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands the Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite Outstanding Securities have given any request, demand, direction, consent or waiver hereunder, Securities owned by the Company or any Affiliate of the Company, whether held as treasury securities or otherwise, shall be disregarded and deemed not to be Outstanding.
 
5
“Ozanimod” means a small molecule sphingosine 1-phosphate receptor modulator, which binds to sphingosine 1-phosphate receptors 1 and 5.
 
“Ozanimod Milestone” means the first approval by the FDA of a new drug application (NDA) that grants Celgene, the Company or any of their respective Affiliates (or their respective successors and assigns) the right to commercially manufacture, market and sell Ozanimod in the United States in accordance with applicable Law for the treatment of relapsing multiple sclerosis in humans.
 
“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.
 
“Party” shall mean the Trustee, the Company and/or Holder(s), as applicable.
 
“Paying Agent” means any Person authorized by the Company to pay the amount determined pursuant to Section 3.1, if any, on any Securities on behalf of the Company.
 
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, limited liability company, unincorporated organization or Governmental Entity.
 
“President” when used with respect to the Company, means any president, whether or not designated by a number or a word or words added before or after the title of “president.”
 
“Products” means each of (a) BB2121, (b) JCAR017 and (c) Ozanimod.
 
“Representatives” shall have the meaning set forth in Section 7.9 of this CVR Agreement.
 
“Responsible Officer” when used with respect to the Trustee means any officer assigned to the Corporate Trust Office who shall have direct responsibility for the administration of this CVR Agreement or any other officer of the Trustee to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject.
 
“Securities” shall have the meaning set forth in the Preamble of this CVR Agreement.
 
“Security Register” shall have the meaning set forth in Section 3.5(a) of this CVR Agreement.
 
“Security Registrar” shall have the meaning set forth in Section 3.5(a) of this CVR Agreement.
 
6
“Senior Obligations” means any existing or future obligations of the Company, including the principal of, premium (if any), interest (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable Law) on, and all other amounts owing thereon, (i) with respect to borrowed money, (ii) evidenced by notes, debentures, bonds or other similar debt instruments, (iii) with respect to the net obligations owed under interest rate swaps or similar agreements or currency exchange transactions, (iv) reimbursement obligations in respect of letters of credit and similar obligations, (v) in respect of capital leases, or (vi) guarantees in respect of obligations referred to in clauses (i) through (v) above; unless, in any case, the instrument creating or evidencing the same or pursuant to which the same is outstanding provides that such obligations are pari passu to or subordinate in right of payment to the Securities.
 
Notwithstanding the foregoing, “Senior Obligations” shall not include:
 

(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.
 
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, association, partnership or other business entity of which more than fifty percent (50%) of the total voting power of shares of Voting Securities is at the time owned or controlled, directly or indirectly, by: (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.
 
“Tax” means any federal, state, local or foreign income, profits, gross receipts, license, payroll, employment, severance, stamp, occupation, premium, windfall profits, environmental, customs duty, capital stock, franchise, sales, social security, unemployment, disability, use, property, withholding, excise, transfer, registration, production, value added, alternative minimum, occupancy, estimated or any other tax of any kind whatsoever, together with any interest, penalty or addition thereto, imposed by any Governmental Entity responsible for the imposition of any such tax, whether disputed or not.
 
“Tax Return” means any return, report, declaration, claim or other statement (including attached schedules) relating to Taxes.
 
7
“Termination Date” shall have the meaning set forth in Section 1.16 of this CVR Agreement.
 
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended from time to time.
 
“Trustee” means the Person named as the “Trustee” in the first paragraph of this CVR Agreement, until a successor Trustee shall have become such pursuant to the applicable provisions of this CVR Agreement, and thereafter “Trustee” shall mean such successor Trustee.
 
“Vice President” when used with respect to the Company, means any vice president, whether or not designated by a number or a word or words added before or after the title of “vice president.”
 
“Voting Securities” means securities or other interests having voting power, or the right, to elect or appoint a majority of the directors, or any Persons performing similar functions, irrespective of whether or not stock or other interests of any other class or classes shall have or might have voting power or any right by reason of the happening of any contingency.
 
Section 1.2          Compliance and Opinions.
 
(a)         Upon any application or request by the Company to the Trustee to take any action under any provision of this CVR Agreement, the Company shall furnish to the Trustee an Officers’ Certificate stating that, in the opinion of the signor, all conditions precedent, if any, provided for in this CVR Agreement relating to the proposed action have been complied with and an Opinion of Counsel stating, subject to customary exceptions, that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this CVR Agreement relating to such particular application or request, no additional certificate or opinion need be furnished.
 
(b)         Every certificate or opinion with respect to compliance with a condition or covenant provided for in this CVR Agreement shall include: (i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
 
Section 1.3           Form of Documents Delivered to Trustee.
 
(a)         In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
 
8
(b)         Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel.  Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company.
 
(c)         Any certificate, statement or opinion of an officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Company.  Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.
 
(d)         Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this CVR Agreement, they may, but need not, be consolidated and form one instrument.
 
Section 1.4          Acts of Holders.
 
(a)         Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this CVR Agreement to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company.  Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this CVR Agreement and (subject to Section 4.1) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.4.  The Company may set a record date for purposes of determining the identity of Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this CVR Agreement.  If not previously set by the Company, (i) the record date for determining the Holders entitled to vote at a meeting of the Holders shall be the date preceding the date notice of such meeting is mailed to the Holders, or if notice is not given, on the day next preceding the day such meeting is held, and (ii) the record date for determining the Holders entitled to consent to any action in writing without a meeting shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Company.  If a record date is fixed, those Persons who were Holders of Securities at such record date (or their duly designated proxies), and only those Persons, shall be entitled to take such action by vote or consent or, except with respect to clause (d) below, to revoke any vote or consent previously given, whether or not such Persons continue to be Holders after such record date.  No such vote or consent shall be valid or effective for more than one hundred twenty (120) days after such record date.
 
9
(b)          The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient.
 
(c)          The ownership of Securities shall be proved by the Security Register.  Neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice to the contrary.
 
(d)         At any time prior to (but not after) the evidencing to the Trustee, as provided in this Section 1.4, of the taking of any action by the Holders of the Securities specified in this CVR Agreement in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Section 1.4, revoke such action so far as concerns such Security.  Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind every future Holder of the same Security or the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, suffered or omitted to be done by the Trustee, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
 
Section 1.5           Notices, etc., to Trustee and Company.  Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this CVR Agreement to be made upon, given or furnished to, or filed with:
 
(a)          the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed, in writing, to or with the Trustee at its Corporate Trust Office; or
 
(b)          the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Company addressed to it at:
 
Bristol-Myers Squibb Company
430 E. 29th Street, 14th Floor
New York, New York 10016
Attn:  Executive Vice President, General Counsel
 
with copies to (which shall not constitute notice):
 
Bristol-Myers Squibb Company
Route 206 & Province Line Road
Princeton, New Jersey  08540
 
10
Attn:   Senior Vice President and Deputy General Counsel, Transactional Practice Group
 
and
 
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Attn:     David Fox, P.C.
 Daniel Wolf, P.C.
 Jonathan Davis, P.C.
 
or at any other address previously furnished in writing to the Trustee by the Company.
 
Section 1.6           Notice to Holders; Waiver.
 
(a)         Where this CVR Agreement provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the Holder’s address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice.  In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.  Where this CVR Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
 
(b)         In case by reason of the suspension of regular mail service or by reason of any other cause, it shall be impracticable to mail notice of any event as required by any provision of this CVR Agreement, then any method of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
 
Section 1.7         Conflict with Trust Indenture Act.  If any provision hereof limits, qualifies or conflicts with another provision which is required or deemed to be included in this CVR Agreement by any of the provisions of the Trust Indenture Act, such required or deemed provision shall control.
 
Section 1.8           Effect of Headings and Table of Contents.  The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
 
Section 1.9          Benefits of Agreement.  Nothing in this CVR Agreement or in the Securities, express or implied, shall give to any Person (other than the Parties hereto and their successors hereunder, any Paying Agent and the Holders) any benefit or any legal or equitable right, remedy or claim under this CVR Agreement or under any covenant or provision herein contained, all such covenants and provisions being for sole benefit of the Parties hereto and their successors, any Paying Agent and of the Holders.
 
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Section 1.10     Governing Law.  THIS CVR AGREEMENT AND ALL SUITS, ACTIONS, PROCEEDINGS, CLAIMS AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) BASED UPON, ARISING OUT OF OR RELATING TO THIS CVR AGREEMENT, THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS CVR AGREEMENT OR THE SECURITIES, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.  EACH OF THE COMPANY, THE TRUSTEE AND EACH OF THE HOLDERS BY THEIR ACCEPTANCE OF THE SECURITIES, HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION, PROCEEDING, CLAIM OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT) BASED UPON, ARISING OUT OF OR RELATING TO THIS CVR AGREEMENT, THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS CVR AGREEMENT OR THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.  EACH OF THE COMPANY AND THE TRUSTEE AGREES THAT PROCESS MAY BE SERVED UPON THEM IN ANY MANNER AUTHORIZED BY THE LAWS OF THE STATE OF NEW YORK FOR SUCH PERSONS AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO SUCH SERVICE OF PROCESS, THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
 
Section 1.11         Legal Holidays.  In the event that the Milestone Payment Date shall not be a Business Day, then (notwithstanding any provision of this CVR Agreement or the Securities to the contrary) payment on the Securities need not be made on such date, but may be made, without the accrual of any interest thereon, on the next succeeding Business Day with the same force and effect as if made on the Milestone Payment Date.
 
Section 1.12         Separability Clause.  In case any provision in this CVR Agreement or in the CVRs shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
 
Section 1.13        No Recourse Against Others.  A director, officer, employee, agent or representative of the Company or any Affiliate of the Company or the Trustee shall not have any liability for any obligations of the Company or the Trustee under the Securities or this CVR Agreement or for any claim based on, in respect of or by reason of such obligations or their creation.  By accepting a Security each Holder waives and releases all such liability and all such claims.  The waiver and release are part of the consideration for the issue of the Securities.
 
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Section 1.14         Counterparts.  This CVR Agreement shall be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this CVR Agreement.
 
Section 1.15        Acceptance of Trust.  Equiniti Trust Company, a limited trust company organized under the laws of the state of New York, the Trustee named herein, hereby accepts the trusts in this CVR Agreement declared and provided, upon the terms and conditions set forth herein.
 
Section 1.16         Termination.  This CVR Agreement will, automatically and without any further action of any Party, terminate and be of no force or effect, and the Parties hereto shall have no liability or obligations hereunder, at the following time (the “Termination Date”): (a) if as of the end of the day on the Initial Milestone Target Date, either the JCAR017 Milestone or the Ozanimod Milestone has not occurred, 12:01 a.m. New York City time on the calendar day following the Initial Milestone Target Date, (b) if both the JCAR017 Milestone and the Ozanimod Milestone have occurred on or prior to the Initial Milestone Target Date but, as of the end of the day on the BB2121 Milestone Target Date, the BB2121 Milestone has not occurred, 12:01 a.m. New York City time on the calendar day following the BB2121 Milestone Target Date or (c) if the Milestone has been achieved, the calendar day following the date on which the Trustee has paid the Milestone Payment to the Holders in accordance with Section 3.1(c); provided, however, that (A) Sections 1.5, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 4.7, 7.5, 7.9, 7.10, Article 8, this Section 1.16 and Section 1.1 (to the extent related to the foregoing) shall survive termination of this CVR Agreement in accordance with their terms; and (B) the termination of this CVR Agreement shall not relieve any Party of any liability arising from any material breach of its obligations under this CVR Agreement occurring prior to the Termination Date. The Company shall provide the Trustee and Paying Agent written notice (email being sufficient) of the non-occurrence of the Milestone as promptly as practicable thereafter and, if the Milestone has not occurred prior to the BB2121 Milestone Target Date, at least seven (7) Business Days following the BB2121 Milestone Target Date (unless the Trustee consents to a shorter notice period).
 
ARTICLE 2
SECURITY FORMS
 
Section 2.1           Forms Generally.
 
(a)         (i) The Global Securities and the Trustee’s certificate of authentication shall be in substantially the forms set forth in Annex A, attached hereto and incorporated herein by this reference, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this CVR Agreement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may be required by Law or any rule or regulation pursuant thereto, all as may be determined by the officers executing such Global Securities, as evidenced by their execution of the Global Securities.  Any portion of the text of any Global Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Global Security.
 
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(ii)        The Global Securities shall be typewritten, printed, lithographed or engraved on steel engraved borders or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by the officers executing such Global Securities, as evidenced by their execution of such Global Securities.
 
(b)          The Direct Registration Securities shall be uncertificated and shall be evidenced by the Direct Registration System maintained by the Security Registrar.
 
ARTICLE 3
THE SECURITIES
 
Section 3.1           Title and Terms.
 
(a)         The aggregate number of CVRs which may be authenticated, as applicable, and delivered under this CVR Agreement is limited to a number equal to [_____], except for Securities authenticated, as applicable, and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities pursuant to Section 3.5, 3.6 or 6.6.  From and after the Merger Effective Time, the Company shall not be permitted to issue any CVRs that have the right to receive any portion of the Milestone Payment, except as provided and in accordance with the terms and conditions of the Merger Agreement.
 
(b)         The Securities shall be known and designated as the “Series B Contingent Value Rights” of the Company.
 
(c)         If the Milestone is achieved, then, on or prior to the Milestone Payment Date, the Company shall pay, or cause to be paid, to the Trustee, by wire transfer to the account designated in writing by the Trustee, an amount equal to the product of (A) the Milestone Payment, multiplied by (B) the number of Securities Outstanding as of such time (the “Aggregate Milestone Payment”), and the Trustee shall promptly (and in any event within two (2) Business Days of the receipt of the Aggregate Milestone Payment from the Company) pay to each Holder of record of the Securities as of 5:00 p.m. New York City time, three (3) Business Days prior to the Milestone Payment Date (the “Milestone Payment Record Date”) an amount equal to the product of (x) the Milestone Payment, multiplied by (y) the number of Securities held of record by such Holder as of the Milestone Payment Record Date.  Subject to Section 1.16, the Company’s obligations to pay the Milestone Payment shall terminate in its entirety on the Termination Date. If the Milestone is achieved, the Company shall notify the Trustee and Paying Agent of the Milestone Payment Date in writing (email being sufficient) at least ten (10) Business Days prior to the Milestone Payment Date (unless the Trustee consents to a shorter notice period).  Such notice shall be accompanied by an Officer’s Certificate which sets forth, in reasonable detail, the calculation of the Aggregate Milestone Payment to be made to the Holders.
 
(d)          The Holders of the CVRs, by acceptance thereof, agree that no joint venture, partnership or other fiduciary relationship is created hereby or by the Securities.
 
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(e)          Other than in the case of interest on amounts due and payable after the occurrence of an Event of Default, no interest or dividends shall accrue on any amounts payable in respect of the CVRs.
 
(f)          The Parties hereto agree to treat the CVRs for all Tax purposes as additional consideration for the shares of Common Stock, the Company Stock Options, the Company RSU Awards, the Company PSU Awards and Company RSAs, as applicable, pursuant to the Merger Agreement, and none of the Parties hereto will take any position to the contrary on any Tax Return or for other Tax purposes except as otherwise required by applicable Law.  The Company shall report imputed interest on the CVRs pursuant to Section 483 of the Code, except as otherwise required by applicable Law.
 
(g)         The CVRs and any interest thereon may be sold, assigned, pledged encumbered or in any manner transferred or disposed of, in whole or in part, only in compliance with applicable United States federal and state securities Laws and, to the extent applicable, in accordance with Section 3.5.
 
(h)         The Holder of any CVR is not, and shall not, by virtue thereof, be entitled to any rights of a holder of any Voting Securities or other equity security or other ownership interest of the Company, in any constituent company to the Merger or in any of their respective Affiliates, either at Law or in equity, and the rights of the Holders are limited to those contractual rights expressed in this CVR Agreement.
 
(i)          Except as provided in this CVR Agreement, none of the Company or any of its Affiliates shall have any right to set-off any amounts owed or claimed to be owed by any Holder to any of them against such Holder’s Securities or the Milestone Payment or other amount payable to such Holder in respect of such Securities.
 
Section 3.2         Registrable Form.  The Securities shall be issuable only in registered form.  The CVRs shall be issued initially in the form of (a) one or more permanent Global Securities, deposited with the Trustee, as the custodian for The Depository Trust Company, its nominees and successors (the “Depositary”), or (b) one or more Direct Registration Securities.  Each Global Security will represent such of the outstanding CVRs as will be specified therein and each shall provide that it represents the aggregate number of outstanding CVRs from time to time endorsed thereon and that the aggregate number of outstanding CVRs represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and/or issuances as provided and in accordance with the terms and conditions of the Merger Agreement.
 
Section 3.3           Execution, Authentication, Delivery and Dating.
 
(a)         The Global Securities shall be executed on behalf of the Company by its chairman of the Board of Directors, its chief executive officer, any President or Vice President or any other individual duly authorized to act on behalf of the Company for such purpose or any general purpose, but need not be attested.  The signature of any of these individuals on the Global Securities may be manual or facsimile.
 
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(b)         Global Securities bearing the manual or facsimile signatures of individuals who were, at the time of execution, the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Global Securities or did not hold such offices at the date of such Global Securities.
 
(c)         At any time and from time to time after the execution and delivery of this CVR Agreement, the Company may deliver a Company Order for the authentication, as applicable, and delivery of Securities, and the Trustee, in accordance with such Company Order, shall authenticate, as applicable, and deliver such Securities as provided in this CVR Agreement and not otherwise.  In the case of Global Securities, such Company Order shall be accompanied by Global Securities executed by the Company and delivered to the Trustee for authentication in accordance with such Company Order.
 
(d)          Each Global Security shall be dated the date of its authentication.
 
(e)         No Global Security shall be entitled to any benefit under this CVR Agreement or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee, by manual or facsimile signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Global Security has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this CVR Agreement.
 
(f)          Direct Registration Securities need not be authenticated, and shall be valid and obligatory for all purposes and shall entitle each Holder thereof to all benefits of this CVR Agreement.
 
Section 3.4           [Intentionally Omitted].
 
Section 3.5           Registration, Registration of Transfer and Exchange.
 
(a)         The Company shall cause to be kept at the office of the Trustee a register (the register maintained in such office and in any other office or agency designated pursuant to Section 7.2 being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities.  The Trustee is hereby initially appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
 
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(b)         (i) A Global Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.  All Global Securities will be exchanged by the Company for Direct Registration Securities if (1) the Company delivers to the Security Registrar notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary, (2) the Company in its sole discretion determines that the Global Securities (in whole but not in part) should be exchanged for Direct Registration Securities and delivers a written notice to such effect to the Security Registrar or (3) an Event of Default has occurred and is continuing and the Security Registrar has received a request from the Depositary to issue Direct Registration Securities.  Upon the occurrence of either of the preceding events in (1) or (2) above, Direct Registration Securities shall be issued in such names as the Depositary shall instruct the Trustee.  Global Securities also may be exchanged or replaced, in whole or in part, as provided in Section 3.6 hereof.  Every Global Security authenticated and delivered in exchange for, or in lieu of, a Global Security or any portion thereof, pursuant to this Sections 3.5 or 3.6 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Security.  A Global Security may not be exchanged for another Global Security other than as provided in this Section 3.5(b)(i), however, beneficial interests in a Global Security may be transferred and exchanged as provided in Section 3.5(b)(ii) or (iii) hereof.
 
(ii)         The transfer and exchange of beneficial interests in the Global Securities will be effected through the Depositary, in accordance with the provisions of this CVR Agreement and the Applicable Procedures.  Beneficial interests in any Global Security may be transferred to Persons who take delivery thereof in the form of a beneficial interest in Global Security.  No written orders or instructions shall be required to be delivered to the Security Registrar to effect the transfers described in this Section 3.5(b)(ii).
 
(iii)       If any holder of a beneficial interest in a Global Security proposes to exchange such beneficial interest for a Direct Registration Security or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Direct Registration Security, then the Security Registrar will cause the aggregate number of CVRs represented by the applicable Global Security to be reduced accordingly pursuant to Section 3.5(b)(vi) hereof, and the Security Registrar will deliver to the Person designated in the instructions a Direct Registration Security in the appropriate number of CVRs.  Any Direct Registration Security issued in exchange for a beneficial interest pursuant to this Section 3.5(b)(iii) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Security Registrar from or through the Depositary and the Participant or Indirect Participant.
 
(iv)       A Holder of a Direct Registration Security may exchange such Direct Registration Security for a beneficial interest in a Global Security or transfer such Direct Registration Security to a Person who takes delivery thereof in the form of a beneficial interest in a Global Security at any time.  Upon receipt of a request for such an exchange or transfer together with, in case of a transfer, a duly endorsed or properly executed instrument of transfer in form reasonably satisfactory to the Company and the Security Registrar duly executed by the Holder (or by his or her attorney duly authorized in writing and with appropriate evidence of authority), the Security Registrar will cancel the applicable Direct Registration Security and increase or cause to be increased the aggregate number of CVRs represented by one of the Global Securities.
 
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(v)        Upon request by a Holder of Direct Registration Securities and such Holder’s compliance with the provisions of this Section 3.5(b)(v), the Security Registrar will register the transfer or exchange of Direct Registration Securities.  Prior to such registration of transfer or exchange, the requesting Holder must present to the Security Registrar a written instruction of transfer in form satisfactory to the Company and the Security Registrar duly executed by such Holder (or by his or her attorney, duly authorized in writing and with appropriate evidence of authority), together with a duly endorsed or properly executed instrument of transfer.  A Holder of Direct Registration Securities may transfer such Direct Registration Securities to a Person who takes delivery thereof in the form of Direct Registration Securities.  Upon receipt of a request to register such a transfer, together with a properly executed instrument of transfer or endorsement and appropriate evidence of authority, which shall include a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association, and any other reasonable evidence of authority that may be required by the Security Registrar, the Security Registrar shall register the Direct Registration Securities pursuant to the instructions from the Holder thereof.
 
(vi)       At such time as all beneficial interests in a particular Global Security have been exchanged for Direct Registration Securities or a particular Global Security has been repurchased or canceled in whole and not in part, each such Global Security will be returned to or retained and canceled by the Security Registrar in accordance with Section 3.9 hereof.  At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security or for Direct Registration Securities, the aggregate number of CVRs represented by such Global Security will be reduced accordingly and an endorsement will be made on such Global Security by the Security Registrar or by the Depositary at the direction of the Security Registrar to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security, such other Global Security will be increased accordingly and an endorsement will be made on such Global Security by the Security Registrar or by the Depositary at the direction of the Security Registrar to reflect such increase.
 
(vii)       (A) To permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Securities upon receipt of a Company Order in accordance with Section 3.3 hereof or at the Security Registrar’s request.
 
(B)         No service charge will be made to a Holder of a beneficial interest in a Global Security or to a Holder of a Direct Registration Security for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

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(C)         All Global Securities and Direct Registration Securities issued upon any registration of transfer or exchange of Global Securities or Direct Registration Securities will be the valid obligations of the Company, evidencing the same rights, and entitled to the same benefits under this CVR Agreement, as the Global Securities or Direct Registration Securities surrendered upon such registration of transfer or exchange.
 
(D)          The Trustee will authenticate Global Securities in accordance with the provisions of Section 3.3 hereof.
 
Section 3.6           Mutilated, Destroyed, Lost and Stolen Securities.
 
(a)          If (i) any mutilated Global Security is surrendered to the Trustee, or (ii) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Global Security, and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company or the Trustee that such Global Security has been acquired by a bona fide purchaser, the Company shall execute and, upon delivery of a Company Order, the Trustee shall authenticate, as applicable, and deliver, in exchange for any such mutilated Global Security or in lieu of any such destroyed, lost or stolen Global Security, a new CVR, in the form of either a Global Security or a Direct Registration Security, of like tenor and amount of CVRs, bearing a number not contemporaneously outstanding.
 
(b)        In case any such mutilated, destroyed, lost or stolen Global Security has become or is to become finally due and payable within fifteen (15) days, the Company in its discretion may, instead of issuing a new CVR, pay to the Holder of such Security on the Milestone Payment Date all amounts due and payable with respect thereto.
 
(c)         Every new Security issued pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Global Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Global Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this CVR Agreement equally and proportionately with any and all other Securities duly issued hereunder.
 
(d)          The provisions of this Section 3.6 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Global Securities.
 
Section 3.7          Payments with Respect to CVRs.  Payment of any amounts pursuant to the CVRs shall be made in such coin or currency of the United States of America as at the time is legal tender for the payment of public and private debts.  The Company may, at its option, pay such amounts by wire transfer or check payable in such money.
 
Section 3.8          Persons Deemed Owners.  The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payment on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

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Section 3.9          Cancellation.  All Securities surrendered for payment, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it.  The Company may at any time deliver to the Trustee for cancellation any Global Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Global Securities so delivered shall be promptly canceled by the Trustee.  No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this CVR Agreement.  All cancelled Global Securities held by the Trustee shall be destroyed and a certificate of destruction shall be issued by the Trustee to the Company, unless otherwise directed by a Company Order.
 
Section 3.10        CUSIP Numbers.  The Company in issuing the CVRs may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices to the Holders as a convenience to the Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the CVRs or as contained in any notices and that reliance may be placed only on the other identification numbers printed on the CVRs, and any such notice shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee of any change in the “CUSIP” numbers.
 
ARTICLE 4
THE TRUSTEE
 
Section 4.1           Certain Duties and Responsibilities.
 
(a)         The Trustee, prior to the occurrence of an Event of Default (as defined in Section 8.1) with respect to the Securities and after the curing or waiving of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this CVR Agreement and no implied covenants shall be read into this CVR Agreement against the Trustee.  In case an Event of Default with respect to the Securities has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this CVR Agreement, and use the same degree of care and skill in their exercise, as a reasonably prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
 
(b)         In the absence of bad faith on its part, prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default which may have occurred, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee which conform to the requirements of this CVR Agreement; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this CVR Agreement (but need not confirm or investigate the accuracy of mathematical calculations or the other facts stated therein).
 
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(c)         No provision of this CVR Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that (i) this Subsection (c) shall not be construed to limit the effect of Subsections (a) and (b) of this Section 4.1; (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders pursuant to Section 8.9 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this CVR Agreement; and (iv) no provision of this CVR Agreement shall require the Trustee to expend its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, to the extent that the Trustee has reasonable grounds, after consultation with outside counsel, for believing that repayment of such funds or adequate indemnity against such liability is not reasonably assured to it.
 
(d)         Whether or not therein expressly so provided, every provision of this CVR Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 4.1.
 
Section 4.2           Certain Rights of Trustee.  Subject to the provisions of Section 4.1, including the duty of care that the Trustee is required to exercise upon the occurrence of an Event of Default:
 
(a)          the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and the Trustee need not investigate any fact or matter stated in the document;
 
(b)          any request or direction or order of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
 
(c)         whenever in the administration of this CVR Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate or an Opinion of Counsel;
 
(d)          the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
 
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(e)          the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this CVR Agreement at the request or direction of any of the Holders pursuant to this CVR Agreement, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
 
(f)          the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document, but the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the pertinent books and records of the Company, personally or by agent or attorney, as may be reasonably necessary for such inquiry or investigation and in a manner so as to not unreasonably interfere with the normal business operations of the Company or any of its Affiliates; provided, however, that Company shall not be required to provide any books or records to the extent that the provision thereof (i) would, as reasonably determined based on the advice of outside counsel, jeopardize any attorney-client privilege or (ii) would contravene any Law or any contract or agreement to which the Company or any of its Affiliates is subject or bound;
 
(g)         the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
 
(h)          the Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this CVR Agreement; and
 
(i)          the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice thereof has been received by such Responsible Officer at the offices of the Trustee and such notice references the CVRs and this CVR Agreement and the fact that such notice constitutes notification of default.
 
(j)          Subject to Section 4.1, in no event shall the Trustee be responsible or liable for special, incidental, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; and
 
(k)         the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Person employed by the Trustee to act hereunder.
 
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Section 4.3          Notice of Default.  If a default occurs hereunder with respect to the Securities, the Trustee shall give the Holders notice of any such default actually known to it as and to the extent applicable and provided by the Trust Indenture Act; provided, however, that in the case of any default of the character specified in Section 8.1(b) with respect to the Securities, no notice to Holders shall be given until at least thirty (30) days after the occurrence thereof.  For the purpose of this Section 4.3, the term “default” means any event that is, or after notice or lapse of time or both would become, an Event of Default with respect to the Securities.
 
Section 4.4          Not Responsible for Recitals or Issuance of Securities.  The Trustee shall not be accountable for the Company’s use of the Securities or the Merger Agreement.  The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness.  The Trustee makes no representations as to the validity or sufficiency of this CVR Agreement or of the Securities or the Merger Agreement. The Trustee is not a party to, is not bound by, and has no duties or obligations under, the Merger Agreement unless specifically stated herein.
 
Section 4.5          May Hold Securities.  The Trustee, any Paying Agent, Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities, and, subject to Sections 4.8 and 4.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.
 
Section 4.6         Money Held in Trust.  Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by Law. The Trustee shall be under no liability for interest on any money received by it hereunder, except as otherwise agreed by the Trustee in writing with the Company.
 
Section 4.7          Compensation and Reimbursement.  The Company agrees:
 
(a)          to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder in such amount as the Company and the Trustee shall agree from time to time (which compensation shall not be limited by any provision of Law in regard to the compensation of a trustee of an express trust);
 
(b)        except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable and out-of-pocket expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this CVR Agreement (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to the Trustee’s negligence, bad faith or willful misconduct; and
 
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(c)          to indemnify the Trustee and each of its agents, officers, directors and employees (each an “indemnitee”) for, and to hold it harmless against, any loss, liability or reasonable and out-of-pocket expense (including reasonable and out-of-pocket attorneys’ fees and expenses) incurred without negligence, bad faith or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this trust and the performance of its duties hereunder, including the reasonable and out-of-pocket costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.  The Company’s payment obligations pursuant to this Section 4.7 shall survive the termination of this CVR Agreement.  When the Trustee incurs reasonable and out-of-pocket expenses after the occurrence of an Event of Default specified in Section 8.1(c) or 8.1(d) with respect to the Company, the expenses will constitute expenses of administration under bankruptcy Laws.
 
Section 4.8           Disqualification; Conflicting Interests.
 
(a)          If applicable, to the extent that the Trustee or the Company determines that the Trustee has a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall immediately notify the Company of such conflict and, within ninety (90) days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this CVR Agreement.  The Company shall take prompt steps to have a successor appointed in the manner provided in this CVR Agreement.
 
(b)         If the Trustee fails to comply with Section 4.8(a), the Trustee shall, within ten (10) days of the expiration of such ninety (90) day period, transmit a notice of such failure to the Holders in the manner and to the extent provided in the Trust Indenture Act and this CVR Agreement.
 
(c)          If the Trustee fails to comply with Section 4.8(a) after written request therefore by the Company or any Holder, then any Holder of any Security who has been a bona fide Holder for at least six (6) months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor Trustee.
 
Section 4.9          Corporate Trustee Required; Eligibility.  There shall at all times be a Trustee hereunder which satisfies the applicable requirements of Sections 310(a)(1) and (5) of the Trust Indenture Act and which, along with its Affiliates, has a combined capital and surplus of at least one hundred fifty million dollars ($150,000,000).  If the Trustee publishes reports of condition at least annually, pursuant to Law or to the requirements of a supervising or examining authority, then for the purposes of this Section 4.9, the combined capital and surplus of the Trustee shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 4.9, it shall resign immediately in the manner and with the effect hereinafter specified in this Article 4.
 
Section 4.10         Resignation and Removal; Appointment of Successor.
 
(a)          No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article 4 shall become effective until the acceptance of appointment by the successor Trustee under Section 4.11.
 
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(b)         The Trustee, or any trustee or trustees hereafter appointed, may resign at any time by giving written notice thereof to the Company.  If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within thirty (30) days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
 
(c)          The Trustee may be removed at any time by an act of the Majority Holders, delivered to the Trustee and to the Company.
 
(d)          If at any time:
 
(i)          the Trustee shall fail to comply with Section 4.8 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six (6) months, or
 
(ii)         the Trustee shall cease to be eligible under Section 4.9 and shall fail to resign after written request therefor by the Company or by any such Holder, or
 
(iii)        the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
 
then, in any case, (A) the Company, by a Board Resolution or an action of the chief executive officer of the Company, may remove the Trustee, or (B) the Holder of any Security who has been a bona fide Holder of a Security for at least six (6) months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
 
(e)         If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by a Board Resolution or an action of the chief executive officer of the Company, shall promptly appoint a successor Trustee.  If, within one year after any resignation, removal or incapacity, or the occurrence of such vacancy, a successor Trustee shall be appointed by act of the Majority Holders delivered to the Company and the retiring Trustee, then the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with Section 4.11, become the successor Trustee and supersede the successor Trustee appointed by the Company.  If no successor Trustee shall have been so appointed by the Company or the Majority Holders and accepted appointment within sixty (60) days after the retiring Trustee tenders its resignation or is removed, the retiring Trustee may, or, the Holder of any Security who has been a bona fide Holder for at least six (6) months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.
 
(f)          The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Securities as their names and addresses appear in the Security Register.  Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.  If the Company fails to send such notice within ten (10) days after acceptance of appointment by a successor Trustee, it shall not be a default hereunder but the successor Trustee shall cause the notice to be mailed at the expense of the Company.
 
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Section 4.11        Acceptance of Appointment of Successor.
 
(a)         Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, upon request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.  Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts.
 
(b)         No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article 4.
 
Section 4.12        Merger, Conversion, Consolidation or Succession to Business.  Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Trustee, by sale or otherwise shall be the successor of the Trustee hereunder, provided such Person shall be otherwise qualified and eligible under this Article 4, without the execution or filing of any paper or any further act on the part of any of the Parties hereto.  In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion, sale or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities; provided that the right to adopt the certificate of authentication of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
 
Section 4.13        Preferential Collection of Claims Against Company.  If and when the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company (or any other obligor upon the Securities), excluding any creditor relationship set forth in Section 311(b) of the Trust Indenture Act, if applicable, the Trustee shall be subject to the applicable provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
 
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ARTICLE 5
HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE AND COMPANY
 
Section 5.1         Company to Furnish Trustee Names and Addresses of Holders.  The Company will furnish or cause to be furnished to the Trustee (a) promptly after the issuance of the Securities, and semi-annually thereafter, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of a recent date, and (b) at such times as the Trustee may request in writing, within thirty (30) days after receipt by the Company of any such request, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of a date not more than fifteen (15) days prior to the time such list is furnished; provided, however, that if and so long as the Trustee shall be the Security Registrar, no such list need be furnished.
 
Section 5.2          Preservation of Information; Communications to Holders.
 
(a)        The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Holders contained in the most recent list furnished to the Trustee as provided in Section 5.1 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar.  The Trustee may destroy any list furnished to it as provided in Section 5.1 upon receipt of a new list so furnished.
 
(b)         The rights of the Holders to communicate with other Holders with respect to their rights under this CVR Agreement and the corresponding rights and privileges of the Trustee shall be as provided by Section 312(b)(2) of the Trust Indenture Act, if applicable.
 
(c)         Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee shall be deemed to be in violation of Law or held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders made in accordance with Section 5.2(b) regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of providing any information pursuant to a request made under Section 5.2(b).
 
Section 5.3           Reports by Trustee.
 
(a)         Within sixty (60) days after December 31 of each year commencing with the December 31 following the date of this CVR Agreement, the Trustee shall transmit to all Holders such reports concerning the Trustee and its actions under this CVR Agreement as may be required pursuant to Section 313 of the Trust Indenture Act to the extent and in the manner provided pursuant thereto.  The Trustee shall also comply with Section 313(b)(2) of the Trust Indenture Act, if applicable.  The Trustee shall also transmit by mail all reports as required by Section 313(c) of the Trust Indenture Act, if applicable.
 
(b)         A copy of each such report shall, at the time of such transmission to the Holders, be filed by the Trustee with each stock exchange, if any, upon which the Securities are listed, with the Commission and also with the Company.  The Company will promptly notify the Trustee when the Securities are listed on any stock exchange.
 
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Section 5.4           Reports by Company.
 
(a)         The Company shall file with the Trustee, within fifteen (15) days after the Company files or furnishes the same with the Commission, copies of an annual report filed on Form 10-K or a quarterly reports filed on Form 10-Q and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company is required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act (such annual and quarterly reports and required information, documents and other reports, together the “Exchange Act Documents”).
 
(b)        Delivery of the reports, information and documents described in Section 5.4(a) shall not constitute constructive notice of any information contained therein or determinable there from, including the Company’s compliance with any of its covenants or other obligations hereunder as to which the Trustee is entitled to rely exclusively on Officer’s Certificates.
 
ARTICLE 6
AMENDMENTS
 
Section 6.1          Amendments Without Consent of Holders.  Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may enter into one or more amendments hereto or to the Securities, for any of the following purposes:
 
(a)          to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities any property or assets;
 
(b)          to evidence the succession of another Person to the Company, and the assumption by any such successor of the covenants of the Company herein and in the Securities;
 
(c)        to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as the Company and the Trustee shall consider to be for the protection of the Holders of Securities, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in this CVR Agreement as herein set forth; provided, that in respect of any such additional covenant, restriction, condition or provision, such amendment may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Majority Holders to waive such an Event of Default;
 
(d)         to cure any ambiguity, or to correct or supplement any provision herein or in the Securities which may be defective or inconsistent with any other provision herein; provided, that such provisions shall not materially reduce the benefits of this CVR Agreement or the Securities to the Holders;
 
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(e)          to make any other provisions with respect to matters or questions arising under this CVR Agreement; provided, that such provisions shall not adversely affect the interests of the Holders;
 
(f)           to make any amendments or changes necessary to comply or maintain compliance with the Trust Indenture Act, if applicable; or
 
(g)          make any other change that does not adversely affect the interests of the Holders.
 
Promptly following any amendment of this CVR Agreement or the Securities in accordance with this Section 6.1, the Trustee shall notify the Holders of the Securities of such amendment; provided that any failure so to notify the Holders shall not affect the validity of such amendment.
 
Section 6.2          Amendments with Consent of Holders.  With the consent of the Majority Holders, by Act of said Holders delivered to the Company and the Trustee, the Company (when authorized by a Board Resolution or the chief executive officer of the Company) and the Trustee may enter into one or more amendments hereto or to the Securities for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this CVR Agreement or to the Securities or of modifying in any manner the rights of the Holders under this CVR Agreement or to the Securities; provided, however, that no such amendment shall, without the consent of the Holder of each Outstanding Security affected thereby:
 
(a)         modify in a manner adverse to the Holders (i) any provision contained herein with respect to the termination of this CVR Agreement or the Securities, (ii) the time for payment and amount of the Milestone Payment, or otherwise extend the time for payment of the Securities or reduce the amounts payable in respect of the Securities or modify any other payment term or payment date;
 
(b)          reduce the number of CVRs, the consent of whose Holders is required for any such amendment; or
 
(c)         modify any of the provisions of this Section 6.2, except to increase the percentage of Holders from whom consent or approval is required or to provide that certain other provisions of this CVR Agreement cannot be modified or waived without the consent of the Holder of each Security affected thereby.
 
It shall not be necessary for any Act of Holders under this Section 6.2 to approve the particular form of any proposed amendment, but it shall be sufficient if such Act shall approve the substance thereof.
 
Section 6.3          Execution of Amendments.  In executing any amendment permitted by this Article 6, the Trustee shall be entitled to receive, and (subject to Section 4.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this CVR Agreement.  The Trustee shall execute any amendment authorized pursuant to this Article 6 if the amendment does not adversely affect the Trustee’s own rights, duties or immunities under this CVR Agreement or otherwise.  Otherwise, the Trustee may, but need not, execute such amendment.
 
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Section 6.4          Effect of Amendments; Notice to Holders.
 
(a)         Upon the execution of any amendment under this Article, this CVR Agreement and the Securities shall be modified in accordance therewith, and such amendment shall form a part of this CVR Agreement and the Securities for all purposes; and every Holder of Securities theretofore or thereafter authenticated, as applicable, and delivered hereunder shall be bound thereby.
 
(b)        Promptly after the execution by the Company and the Trustee of any amendment pursuant to the provisions of this Article 6, the Company shall mail a notice thereof by first class mail to the Holders of Securities at their addresses as they shall appear on the Security Register, setting forth in general terms the substance of such amendment.  Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment.
 
Section 6.5           Conformity with Trust Indenture Act.  Every amendment executed pursuant to this Article 6 shall conform to the applicable requirements of the Trust Indenture Act, if any.
 
Section 6.6         Reference in Securities to Amendments.  If an amendment changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee.  Global Securities authenticated and delivered after the execution of any amendment pursuant to this Article 6 may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such amendment.  If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee, on the on hand, and the Board of Directors or the chief executive officer of the Company, on the other hand, to any such amendment may be prepared and executed by the Company, as applicable, and authenticated, as applicable, and delivered by the Trustee in exchange for Outstanding Securities.  Failure to make the appropriate notation or to issue a new Security shall not affect the validity of such amendment.
 
ARTICLE 7
COVENANTS
 
Section 7.1          Payment of Amounts, if any, to Holders.  The Company will duly and punctually pay the amounts due, if any, on the Securities in accordance with the terms of this CVR Agreement.  Such amounts shall be considered paid on the Milestone Payment Date if on or prior to such date the Company makes, or causes to be made, the payment required pursuant to Section 3.1(c) of this CVR Agreement.  Notwithstanding any other provision of this CVR Agreement, the Company or any of its Affiliates, the Trustee or the Paying Agent, shall be entitled to deduct and withhold, or cause to be deducted and withheld, from any amounts payable or otherwise deliverable pursuant to this CVR Agreement to any Person, such amounts as are required to be deducted and withheld therefrom under the Code, or any provision of state, local or foreign Tax Law. To the extent that amounts are so deducted and withheld by the Company or any of its Affiliates, the Trustee or the Paying Agent, such withheld amounts shall be (a) paid over to the applicable Governmental Entity in accordance with applicable Law and (b) treated for all purposes of this CVR Agreement as having been paid to the Person in respect of which such deduction and withholding was made by the Company or any of its Affiliates, the Trustee or the Paying Agent, as the case may be.  The consent of Holder shall not be required for any such withholding.
 
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Section 7.2           Maintenance of Office or Agency.
 
(a)         As long as any of the Securities remain Outstanding, the Company will maintain an office or agency (i) where Securities may be presented or surrendered for payment, (ii) where Securities may be surrendered for registration of transfer or exchange and (iii) where notices and demands to or upon the Company in respect of the Securities and this CVR Agreement may be served.  The office or agency of the Trustee at 1110 Centre Pointe Curve, Suite 101 Mendota Heights, Minnesota 55120-4101 shall be such office or agency of the Company, unless the Company shall designate and maintain some other office or agency for one or more of such purposes.  The Company or any of its Subsidiaries may act as Paying Agent, registrar or transfer agent; provided that such Person shall take appropriate actions to avoid the commingling of funds.  The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency.  If at any time the Company shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
 
(b)        The Company may from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes, and may from time to time rescind such designation; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency for such purposes.  The Company will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such office or agency.
 
Section 7.3           Money for Security Payments to Be Held in Trust.
 
(a)          If the Company or any of its Subsidiaries shall at any time act as the Paying Agent, it will, on or before the Milestone Payment Date segregate and hold in trust for the benefit of the Holders all sums held by such Paying Agent for payment on the Securities until such sums shall be paid to the Holders as herein provided, and will promptly notify the Trustee of such action or any failure to so act.
 
(b)         Whenever the Company shall have one or more Paying Agents for the Securities, it will, on or before the Milestone Payment Date deposit with a Paying Agent a sum in same day funds sufficient to pay the amount, if any, so becoming due; such sum to be held in trust for the benefit of the Persons entitled to such amount, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of such action or any failure so to act.
 
(c)         The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 7.3, that such Paying Agent will (i) hold all sums held by it for the payment of any amount payable on Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will notify the Trustee of the sums so held, and (ii) give the Trustee notice of any failure by the Company (or by any other obligor on the Securities) to make any payment on the Securities when the same shall be due and payable.
 
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(d)         Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment on any Security and remaining unclaimed for one year after the Milestone Payment Date shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money shall thereupon cease.
 
Section 7.4          Certain Purchases and Sales.  Nothing contained herein shall prohibit the Company or any of its Subsidiaries or Affiliates from acquiring in open market transactions, private transactions or otherwise, any Securities.
 
Section 7.5          Books and Records.  During the term of this CVR Agreement and for a period of three (3) years after the Termination Date, the Company shall use commercially reasonable efforts to keep, and shall cause its Subsidiaries to use commercially reasonable efforts to keep, true, complete and accurate records in reasonably sufficient detail to enable the Holders to determine if the Company has complied with its obligations under this CVR Agreement.
 
Section 7.6          Listing of CVRs.  The Company hereby covenants and agrees to use reasonable best efforts to cause the Securities to be approved for listing (subject to notice of issuance) for trading on the New York Stock Exchange or other national securities exchange and will use its reasonable best efforts to maintain such listing for so long as any CVRs remain Outstanding.
 
Section 7.7          Product Transfer.  If the Company or its Affiliates, directly or indirectly, by a sale or swap of assets, merger, reorganization, joint venture, lease, license or any other transaction or arrangement, sells, transfers, conveys or otherwise disposes of its respective rights in and to any Product to a third party (other than the Company or any of its Subsidiaries), then the applicable Milestone for such Product (e.g., if the Product is BB2121, then the BB2121 Milestone) shall be deemed to have been satisfied for all purposes under this CVR Agreement as of the earlier of the entry into a definitive agreement with respect to, and the consummation of, the transaction or arrangement involving such sale, transfer, conveyance or other disposition; provided, that if such sale, transfer, conveyance or other disposition is permitted by Section 9.1, then Section 9.1 shall govern.  For the purposes of clarification, and subject to Section 7.8, the Company may use contract research organizations, contract manufacturing organizations, contract sales organizations, subcontractors and distributors in the ordinary course of business to perform research, development, manufacturing and commercialization activities (including granting an appropriate sublicense to the extent necessary), without triggering the applicable Milestone.
 
Section 7.8          Diligent Efforts.  The Company shall use Diligent Efforts to achieve the Milestone.
 
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Section 7.9         Confidentiality.  The Trustee and the Holders hereby agree that any confidential or non-public information they receive from or on behalf of the Company or any Affiliate of the Company, which receipt arises out of the transactions contemplated by this CVR Agreement (the “Confidential Information”), shall: (a) not be used for any purpose other than for purposes permitted under this CVR Agreement; (b) not be used directly or indirectly in any way that is for competitive purposes; and (c) not be disclosed by, and be kept confidential by, such Trustee and the Holders and its directors, officers, members, managers, employees, affiliates and agents (collectively, “Representatives”); provided, however, that any such Confidential Information may be disclosed only to their Representatives who (i) need to know such Confidential Information and (ii) are bound in writing to a non-disclosure agreement no less restrictive than this Section 7.9.  It is understood that such Representatives shall be informed by the Trustee or the applicable Holder of the confidential nature of such Confidential Information, and that the Trustee or such Holder, as applicable, shall be responsible for any disclosure or use made by its Representatives in breach of obligations under this CVR Agreement to the same extent as if such disclosure or use had been made directly by the Trustee or such Holder, as applicable.  Each of the Trustee and the Holders will as soon as practicable notify the Company of any breach of this CVR Agreement of which they become aware, and will use commercially reasonable efforts to assist and cooperate with the Company in minimizing the consequences of such breach.  “Confidential Information” shall not include any information that is (A) publicly available other than because of or related to any disclosure by the Trustee or the Holders or any of their respective Representatives or (B) is lawfully disclosed to the Trustee or Holders by sources (other than the Company or its Affiliates) rightfully in possession of the Confidential Information on a non-confidential basis.  If the Trustee, Holders or their respective Representatives are legally required or requested to disclose any Confidential Information, they will in advance of such disclosure, unless otherwise prohibited by Law, promptly notify the Company in writing of such request or requirement so that the Company may seek to avoid or minimize the required disclosure and/or obtain an appropriate protective order or other appropriate relief to ensure that any Confidential Information so disclosed is maintained in confidence to the maximum extent possible by the person receiving the disclosure, or, in the Company’s discretion, to waive compliance with the provisions of this CVR Agreement.  In any such case, the Trustee and the Holders agree to cooperate and use reasonable efforts to avoid or minimize the required disclosure and/or obtain such protective order or other relief.  If, in the absence of a protective order or the receipt of a waiver hereunder, the Trustee, Holders or their respective Representatives are legally obligated to disclose any Confidential Information, they will disclose only so much thereof to the party compelling disclosure as they believe in good faith, on the basis of advice of counsel, is required by Law. The Trustee and Holders shall, unless otherwise prohibited by Law, give the Company prior written notice of the specific Confidential Information that they believe they are required to disclose under such circumstances.  All Confidential Information disclosed by or on behalf of the Company or any of its Affiliates shall be, and shall remain, the property of the Company or such Affiliate.
 
Section 7.10        Non-Use of Name.  Neither the Trustee nor the Holders shall use the name, trademark, trade name, or logo of the Company, its Affiliates or their respective employees, agents or representatives in any publicity or news release relating to this CVR Agreement or its subject matter, without the prior express written permission of the Company.
 
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Section 7.11         Notice of Default.  The Company shall file with the Trustee written notice of the occurrence of any Event of Default or other default under this CVR Agreement within five (5) Business Days of its becoming aware of such Event of Default or other default.
 
ARTICLE 8
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
 
Section 8.1          Event of Default Defined; Waiver of Default.  “Event of Default” with respect to the Securities, means each one of the following events which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of Law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
 
(a)          default in the payment by the Company pursuant to the terms of this CVR Agreement of all or any part of the Milestone Payment after a period of ten (10) Business Days after the Milestone Payment shall become due and payable on the Milestone Payment Date; or
 
(b)         material default in the performance, or breach in any material respect, of any covenant or warranty of the Company in respect of the Securities (other than a covenant or warranty in respect of the Securities, a default in whose performance or whose breach is elsewhere in this Section 8.1 specifically dealt with), and continuance of such default or breach for a period of ninety (90) days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Majority Holders, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
 
(c)         a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar Law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of ninety (90) consecutive days; or
 
(d)         the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar Law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or for any substantial part of its property, or make any general assignment for the benefit of creditors.
 
If an Event of Default described above occurs and is continuing, then, and in each and every such case, either the Trustee by notice in writing to the Company or the Trustee upon the written request of the Majority Holders by notice in writing to the Company (and to the Trustee if given by the Majority Holders), shall bring suit to protect the rights of the Holders, including to obtain payment for any amounts then due and payable, which amounts shall bear interest at the Default Interest Rate from the date such amounts were due and payable hereunder until payment is made to the Trustee.
 
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The foregoing provisions of this Section 8.1, however, are subject to the condition that if, at any time after the Trustee shall have begun such suit, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all amounts which shall have become due (with interest upon such overdue amount at the Default Interest Rate to the date of such payment or deposit) and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred and all advances made, by the Trustee, and if any and all Events of Default under this CVR Agreement shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the Majority Holders, by written notice to the Company and to the Trustee, may waive all defaults with respect to the Securities, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereof.
 
Section 8.2         Collection by the Trustee; the Trustee May Prove Payment Obligations.  The Company covenants that in case default shall be made in the payment of all or any part of the Securities when the same shall have become due and payable, whether at the Milestone Payment Date or otherwise, then upon demand of the Trustee, the Company will pay to the Trustee for the benefit of the Holders of the Securities the whole amount that then shall have become due and payable on all Securities (with interest from the date due and payable to the date of such payment upon the overdue amount at the Default Interest Rate); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of its negligence, bad faith or willful misconduct.
 
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at Law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company or other obligor upon such Securities and collect in the manner provided by Law out of the property of the Company or other obligor upon such Securities, wherever situated, the moneys adjudged or decreed to be payable.
 
In any judicial proceedings relative to the Company or other obligor upon the Securities, irrespective of whether any amount is then due and payable with respect to the Securities, the Trustee is authorized:
 
(a)         to file and prove a claim or claims for the whole amount owing and unpaid in respect of the Securities, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence, bad faith or willful misconduct) and of the Holders allowed in any judicial proceedings relative to the Company or other obligor upon the Securities, or to their respective property;
 
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(b)         unless prohibited by and only to the extent required by applicable Law, to vote on behalf of the Holders in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing similar functions in comparable proceedings; and
 
(c)          to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Holders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official is hereby authorized by each of the Holders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Holders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of its negligence, bad faith or willful misconduct, and all other amounts due to the Trustee or any predecessor Trustee pursuant to Section 4.7.  To the extent that such payment of reasonable compensation, expenses, disbursements, advances and other amounts out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, moneys, securities and other property which the Holders may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.
 
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities, or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.
 
All rights of action and of asserting claims under this CVR Agreement, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities or the production thereof and any trial or other proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys, shall be for the ratable benefit of the Holders.
 
In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this CVR Agreement to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders, and it shall not be necessary to make any Holders of such Securities parties to any such proceedings.
 
Section 8.3         Application of Proceeds.  Any monies collected by the Trustee pursuant to this Article 8 in respect of any Securities shall be applied in the following order at the date or dates fixed by the Trustee upon presentation of the several Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment in exchange for the presented Securities if only partially paid or upon surrender thereof if fully paid:
 
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FIRST: To the payment of costs and expenses in respect of which monies have been collected, including reasonable compensation to the Trustee and each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of its negligence, bad faith or willful misconduct, and all other amounts due to the Trustee or any predecessor Trustee pursuant to Section 4.7;
 
SECOND: To the payment of the whole amount then owing and unpaid upon all the Securities, with interest at the Default Interest Rate on all such amounts, and in case such monies shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities, then to the payment of such amounts without preference or priority of any security over any other Security, ratably to the aggregate of such amounts due and payable; and
 
THIRD: To the payment of the remainder, if any, to the Company or any other person lawfully entitled thereto.
 
Section 8.4          Suits for Enforcement.  In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders under this CVR Agreement by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at Law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this CVR Agreement or in aid of the exercise of any power granted in this CVR Agreement or to enforce any other legal or equitable right vested in the Trustee by this CVR Agreement or by Law.
 
Section 8.5          Restoration of Rights on Abandonment of Proceedings.  In case the Trustee or any Holder shall have proceeded to enforce any right under this CVR Agreement and such proceedings shall, subject to any determination in such proceeding, have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee or to such Holder, then and in every such case the Company and the Trustee and the Holders shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Trustee and the Holders shall continue as though no such proceedings had been taken.
 
Section 8.6           Limitations on Suits by Holders.  Subject to the rights of the Holders under Section 8.7, no Holder of any Security shall have any right by virtue or by availing of any provision of this CVR Agreement to institute any action or proceeding at Law or in equity or in bankruptcy or otherwise upon or under or with respect to this CVR Agreement, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless the Majority Holders shall also have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for fifteen (15) days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 8.9; it being understood and intended that no one or more of such Holders may obtain or seek to obtain priority or preference over any other of such Holders or to enforce any right under this CVR Agreement, except for the equal and ratable benefit of all such Holders.  For the protection and enforcement of the provisions of this Section 8.6, each and every Holder and the Trustee shall be entitled to such relief as can be given either at Law or in equity.
 
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Section 8.7         Unconditional Right of Holders to Institute Certain Suits.  Notwithstanding any other provision in this CVR Agreement and any provision of any Security, the right of any Holder of any Security to receive payment of the amounts payable in respect of such Security on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
 
Section 8.8           Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.
 
(a)          Except as provided in Section 8.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by Law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at Law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
 
(b)         No delay or omission of the Trustee or of any Holder to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and, subject to Section 8.6, every power and remedy given by this CVR Agreement or by Law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
 
Section 8.9          Control by Holders.
 
(a)         The Majority Holders shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any power conferred on the Trustee with respect to the Securities by this CVR Agreement; provided that such direction shall not be otherwise than in accordance with Law and the provisions of this CVR Agreement; and provided further that (subject to the provisions of Section 4.1) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive committee, or a committee of directors or Responsible Officers of the Trustee shall determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities not joining in the giving of said direction.
 
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(b)         Nothing in this CVR Agreement shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Holders.
 
Section 8.10        Waiver of Past Defaults.
 
(a)         In the case of a default or an Event of Default specified in clause (b), (c) or (d) of Section 8.1, the Majority Holders may waive any such default or Event of Default, and its consequences except a default in respect of a covenant or provisions hereof which cannot be modified or amended without the consent of the Holder of each Security affected.  In the case of any such waiver, the Company, the Trustee and the Holders of the Securities shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
 
(b)        Upon any such waiver, such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of this CVR Agreement; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
 
Section 8.11        The Trustee to Give Notice of Default, But May Withhold in Certain Circumstances.  The Trustee shall transmit to the Holders, as the names and addresses of such Holders appear on the Security Register (as provided under Section 313(c) of the Trust Indenture Act, if applicable), notice by mail of all defaults which have occurred and are known to the Trustee, such notice to be transmitted within ninety (90) days after the occurrence thereof, unless such defaults shall have been cured before the giving of such notice (the term “default” for the purposes of this Section being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, an Event of Default); provided that, except in the case of default in the payment of the amounts payable in respect of any of the Securities, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or trustees and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.
 
Section 8.12        Right of Court to Require Filing of Undertaking to Pay Costs.  All Parties to this CVR Agreement agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this CVR Agreement or in any suit against the Trustee for any action taken, suffered or omitted by it as the Trustee, the filing by any party litigant in such suit of an undertaking to pay the reasonable out-of-pocket costs of such suit, and that such court may in its discretion assess reasonable out-of-pocket costs, including reasonable out-of-pocket attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 8.12 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder or group of Holders holding in the aggregate more than ten percent (10%) of the Securities Outstanding or to any suit instituted by any Holder for the enforcement of the payment of any Security on or after the due date expressed in such Security.
 
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ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
 
Section 9.1         Company May Consolidate, etc., on Certain Terms.  The Company covenants that it will not merge or consolidate with or into any other Person or sell or convey all or substantially all of its assets to any Person, unless (a) either (i) the Company shall be the continuing Person or (ii) the successor Person, or the Person that acquires by sale or conveyance substantially all the assets of the Company shall be a Person organized under the Laws of the United States of America or any State thereof, any member of the European Union or the United Kingdom and shall expressly assume, by an assignment and assumption agreement, executed and delivered to the Trustee, in substantially the form attached hereto as Annex B, the due and punctual payment of the Milestone Payment and the due and punctual performance and observance of all covenants and conditions of this CVR Agreement to be performed or observed by the Company, and (b) immediately after such merger or consolidation, or such sale or conveyance, no default or Event of Default shall have occurred and be continuing.
 
Section 9.2           Successor Person Substituted.
 
(a)          In case of an assumption pursuant to Section 9.1(a)(ii), such assuming Person shall succeed to and be substituted for the Company with the same effect as if it had been named herein.  Such assuming Person may cause to be signed, and may issue either in its own name (or, if it is the successor to the Company or substantially all assets of the Company, in the name of the Company prior to such succession) any or all of the Securities issuable hereunder, in the case of Global Securities, which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor corporation instead of the Company and subject to all the terms, conditions and limitations in this CVR Agreement prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered to the Trustee for authentication, and any Securities which such assuming Person thereafter shall cause to be signed and delivered to the Trustee for that purpose.  All of the Securities so issued shall in all respects have the same legal rank and benefit under this CVR Agreement as the Securities theretofore or thereafter issued in accordance with the terms of this CVR Agreement as though all of such Securities had been issued at the date of the execution hereof.
 
(b)          In case of any such assumption, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
 
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(c)          In the event of any such assumption, the assigning Person shall be discharged from all obligations and covenants under this CVR Agreement and the Securities and may be liquidated and dissolved.
 
Section 9.3         Opinion of Counsel to the Trustee.  The Trustee, subject to the provisions of Sections 4.1 and 4.2, shall receive an Officer’s Certificate and Opinion of Counsel, prepared in accordance with Section 1.2 and Section 1.3, as conclusive evidence that any such consolidation, merger, sale or conveyance, and any such assumption, and any such liquidation or dissolution, complies with the applicable provisions of this CVR Agreement, and if a supplemental agreement is required in connection with such transaction, such supplemental agreement complies with this Article and that there has been compliance with all conditions precedent herein provided for or relating to such transaction.
 
Section 9.4          Successors.  All covenants, provisions and agreements in this CVR Agreement by or for the benefit of the Company, the Trustee or the Holders shall bind and inure to the benefit of their respective successors, assigns, heirs and personal representatives, whether so expressed or not.  The Company may assign this CVR Agreement without the prior written consent of the other Parties to this CVR Agreement to one or more of its direct or indirect Subsidiaries, provided, however, that, subject to Section 9.2(a) and (b), in the event of any such assignment the Company shall remain subject to its obligations and covenants hereunder, including but not limited to its obligation to make the Milestone Payment.
 
ARTICLE 10
SUBORDINATION
 
Section 10.1        Agreement to Subordinate.  The Company agrees, and each Holder by accepting a Security hereunder agrees, that the Milestone Payment, all other obligations under this CVR Agreement and the Securities and any rights or claims relating thereto (collectively, the “Junior Obligations”) are subordinated in right of payment, to the extent and in the manner provided in this Article 10, to the prior payment in full in cash or cash equivalents of all Senior Obligations of the Company (whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the holders of such Senior Obligations.
 
Section 10.2         Liquidation; Dissolution; Bankruptcy.  Upon any distribution to creditors of the Company in a liquidation or dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, in an assignment for the benefit of creditors or any marshaling of the Company’s assets and liabilities:
 
(a)         holders of Senior Obligations will be entitled to receive payment in full in cash or cash equivalents of all Senior Obligations of the Company (including interest after the commencement of any bankruptcy proceeding at the rate specified in the applicable Senior Obligation, whether or not permitted under such bankruptcy proceedings) before the Holders will be entitled to receive any payment of any kind with respect to the Junior Obligations; and
 
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(b)         until all Senior Obligations of the Company (as provided in clause (a) above) are paid in full in cash or cash equivalents, any distribution to which Holders would be entitled but for this Article 10 will be made to holders of Senior Obligations of the Company, as their interests may appear.
 
Section 10.3        Default on Senior Obligations.  The Company may not make any payment or distribution to any Holder in respect of Junior Obligations or acquire from any Holder for cash or property any Junior Obligations:
 
(a)          if any default on any Senior Obligations exceeding twenty-five million dollars ($25,000,000) in aggregate principal amount would occur as a result of such payment, distribution or acquisition;
 
(b)          during the continuance of any payment default in respect of any Senior Obligations (after expiration of any applicable grace period) exceeding twenty-five million dollars ($25,000,000) in aggregate principal amount;
 
(c)          if the maturity of any Senior Obligations representing more than twenty-five million dollars ($25,000,000) in aggregate principal amount is accelerated in accordance with its terms and such acceleration has not been rescinded; or
 
(d)         following the occurrence of any default (other than a payment default, and after the expiration of any applicable grace period) with respect to any Senior Obligations with an aggregate principal amount of more than twenty-five million dollars ($25,000,000), the effect of which is to permit the holders of such Senior Obligations (or a trustee or agent acting on their behalf) to cause, with the giving of notice if required, the maturity of such Senior Obligations to be accelerated, for a period commencing upon the receipt by the Trustee (with a copy to the Company) of a written notice of such default from the representative of the holders of such Senior Obligations and ending when such Senior Obligations are paid in full in cash or cash equivalents or, if earlier, when such default is cured or waived.
 
Section 10.4        When Distribution Must Be Paid Over.
 
(a)          In the event that the Trustee or any Holder receives any payment of any Junior Obligations at a time when such payment is prohibited by this Article 10, and is notified as such by the Company, such payment will be held by the Trustee or such Holder, in trust for the benefit of, and will be paid forthwith over and delivered, upon written request, to, the representative of the holders of Senior Obligations under the agreement, indenture or other document (if any) pursuant to which such Senior Obligations may have been issued, as their respective interests may appear, for application to the payment of all such Senior Obligations remaining unpaid to the extent necessary to pay such Senior Obligations in full in accordance with their terms, after giving effect to any concurrent payment or distribution to or for the holders of Senior Obligations.
 
(b)        Any amount received by any Holder as a result of direct or indirect credit support for the Junior Obligations from any Affiliate of the Company shall be treated as payments received by such Holder from the Company that are subject to the provisions of this Article 10.
 
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(c)        With respect to the holders of Senior Obligations, the Trustee undertakes to perform only those obligations on the part of the Trustee as are specifically set forth in this Article 10, and no implied covenants or obligations with respect to the holders of Senior Obligations will be read into this CVR Agreement against the Trustee.  The Trustee will not be deemed to owe any fiduciary duty to the holders of Senior Obligations, and will not be liable to any such holders if the Trustee pays over or distributes to or on behalf of Holders or the Company or any other Person money or assets to which any holders of Senior Obligations are then entitled by virtue of this Article 10, except if such payment is made as a result of the willful misconduct or gross negligence of the Trustee.
 
Section 10.5         Notice by Company.  The Company will promptly notify the Trustee of any facts known to the Company that would cause a payment of any Junior Obligations to violate this Article 10, but failure to give such notice will not affect the subordination of the Junior Obligations to the Senior Obligations as provided in this Article 10.
 
Section 10.6         Subordination Effective Notwithstanding Deficiencies with Respect to Senior Obligations: Waiver of Right to Contest Senior Obligation: Reinstatement of Subordination Provisions.
 
(a)         The Holders hereby agree that subordination provisions contained in this Article 10 are unconditional, irrespective of the validity, regularity or enforceability of the Senior Obligations, the absence of any action to enforce the same, any waiver or consent by any holder of Senior Obligations with respect to any provisions thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense.  Without limiting the foregoing, and notwithstanding anything to the contrary contained elsewhere in this CVR Agreement, in the event that the amount of Senior Obligations are reduced or diminished for any reason (other than as a result of the payment in cash or cash equivalents thereof), whether because of the applicability of fraudulent conveyance or other applicable Laws, or any other invalidity or limitation on the amount of Senior Obligations, the subordination provisions thereof shall apply to the full amount of Senior Obligations (without giving effect to any reduction, invalidity or diminution thereof), and the turnover provisions hereunder shall be fully enforceable with respect to the full amount of Senior Obligations (without giving effect to any such reduction, invalidity or diminution thereof), even if the effect thereof is that there will be no (or a limited amount of) Senior Obligations to which the Junior Obligations are subrogated after the payment in full in cash of any of the remaining Senior Obligations (without giving effect to any reductions, invalidity or diminution thereof, except for reductions as a result of payments thereof in cash or cash equivalents).
 
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(b)         The Trustee and the Holders agree that they shall not (and hereby waive any right to) take any action to contest or challenge (or assist or support any other Person in contesting or challenging), directly or indirectly, whether or not in any proceeding (including in any proceeding commenced by or against any Person under any provision of Title 11 of the United States Code, as now and hereinafter in effect, or any successor statute or under any other state or federal bankruptcy or insolvency Law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief), the validity or enforceability of the Senior Obligations.
 
(c)          If any payment made or in respect to the Senior Obligations must be disgorged or returned for any reason, the Senior Obligations shall be reinstated hereunder and for all purposes of this Article 10 (including the turnover provisions hereof) such payment shall be deemed to have never been made with respect to the Senior Obligations.
 
Section 10.7        Subrogation.  After all Senior Obligations are paid in full in cash or cash equivalents and until the Junior Obligations are paid in full, Holders will be subrogated to the rights of holders of Senior Obligations to receive distributions applicable to Senior Obligations to the extent that distributions otherwise payable to the Holders have been applied to the payment of Senior Obligations.  The Holders by accepting the Securities acknowledge that to the extent that the Senior Obligations are determined to be unenforceable, or the Senior Obligations are subordinated to other obligations of the Company, such subrogation rights may be impaired.
 
Section 10.8        Relative Rights.  This Article 10 defines the relative rights of Holders and holders of Senior Obligations.  Nothing in this CVR Agreement will:
 
(a)         impair, as between the Company and Holders, the obligations of the Company under this CVR Agreement and the Securities; or
 
(b)         affect the relative rights of Holders and creditors of the Company other than their rights in relation to holders of Senior Obligations.
 
(c)         prevent the Trustee or Holder of any Security from exercising all remedies otherwise permitted under this CVR Agreement upon default under this CVR Agreement, subject to the rights, if any, under this Article 10 of the holders of Senior Obligations to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder of CVR
 
If the Company fails because of this Article 10 to pay any amounts due in respect of the Securities on a due date in violation of Section 8.1, the failure is still an Event of Default. Unless prohibited by this Article 10, nothing contained in this Article 10 shall prevent the Company from making regularly scheduled payments under this CVR Agreement.
 
Section 10.9        Subordination May Not Be Impaired by Company.  No right of any holder of Senior Obligations to enforce the subordination of the Junior Obligations may be impaired by any act or failure to act by the Company or any Holder or by the failure of the Company or any Holder to comply with this CVR Agreement.
 
Section 10.10      Distribution or Notice to Representative.  Whenever a distribution is to be made or a notice given to holders of Senior Obligations, the distribution may be made and the notice given to their representative in accordance with the terms of the instrument or other agreement governing such Senior Obligations.  Upon any payment or distribution of assets of the Company referred to in this Article 10, the Trustee and the Holders will be entitled to rely upon any order or decree made by any court of competent jurisdiction or upon any certificate of such representative or of the liquidating trustee or agent or other Person making any distribution to the Trustee or to the Holders for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Obligations and other obligations of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 10.
 
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Section 10.11      Rights of the Trustee.  Notwithstanding the provisions of this Article 10 or any other provision of this CVR Agreement, the Trustee will not be charged with knowledge of the existence of any facts that would prohibit the making of any payment or distribution by the Trustee, and the Trustee may continue to make payments on the Securities, unless the Trustee has received at its address for notice specified in Section 1.5 at least five (5) Business Days prior to the date of such payment written notice of facts that would cause the payment of any Junior Obligations to violate this Article 10.  Only the Company or a representative of Senior Obligations may give the notice and the Trustee shall be fully protected and shall incur no liability prior to receiving said notice.  In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Obligations to participate in any payment or distribution pursuant to this Article 10, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Obligations held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person as it relates to this Article 10, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. Nothing in this Article 10 will impair or subordinate the claims of, or payments to, the Trustee under or pursuant to Section 4.7. The Trustee in its individual or any other capacity may hold Senior Obligations with the same rights it would have if it were not the Trustee.
 
Section 10.12      Authorization to Effect Subordination.  Each Holder, by the Holder’s acceptance of the Securities, authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Article 10, and appoints the Trustee to act as such Holder’s attorney-in-fact for any and all such purposes.  If the Trustee (or any other Person acting on behalf of and at the direction of the Majority Holders) does not file a proper proof of claim or proof of debt in the form required in any proceeding referred to in Section 8.2 hereof at least thirty (30) days before the expiration of the time to file such claim, the representatives of the Senior Obligations are hereby authorized to file an appropriate claim for and on behalf of the Holders of the Securities.
 
Section 10.13     Amendments.  The provisions of this Article 10 are expressly made for the benefit of the holders from time to time of the Senior Obligations, and may not be amended or modified without the written consent of the representatives of the holders of all Senior Obligations.
 
[Signature Page Follows]
 
45
IN WITNESS WHEREOF, the Parties hereto have caused this CVR Agreement to be duly executed, all as of the day and year first above written.
 
 
BRISTOL-MYERS SQUIBB COMPANY
   
 
By:
/s/ Katherine R. Kelly
 
 
Name:
Katherine R. Kelly
 
Title:
Corporate Secretary

 
EQUINITI TRUST COMPANY, as the Trustee
   
 
By:
/s/ Martin J. Knapp
 
 
Name:
Martin J. Knapp
 
Title:
Vice President

[Signature Page to CVR Agreement]

ANNEX A
 
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE CONTINGENT VALUE RIGHTS AGREEMENT (THE “CVR AGREEMENT”) HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF.  THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE CVR AGREEMENT, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE CVR AGREEMENT.
 
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DIRECT REGISTRATION FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.  UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
 
BRISTOL-MYERS SQUIBB COMPANY
 
No. Certificate for
Contingent Value Rights
CUSIP [________]
 

This certifies that __________, or registered assigns (the “Holder”), is the registered holder of the number of Contingent Value Rights (“CVRs” or “Securities”) set forth above.  Each CVR entitles the Holder, subject to the provisions contained herein and in the CVR Agreement referred to on the reverse hereof, to payments from Bristol-Myers Squibb Company, a Delaware corporation (the “Company”), in the amounts and in the forms determined pursuant to the provisions set forth on the reverse hereof and as more fully described in the CVR Agreement referred to on the reverse hereof.  Such payments shall be made by the Company on the Milestone Payment Date, as defined in the CVR Agreement referred to on the reverse hereof, in accordance with the terms of the CVR Agreement.
 
A-1
Payment of any amounts pursuant to this CVR certificate shall be made only to the registered Holder (as defined in the CVR Agreement) of this CVR certificate.  Such payment shall be made at an office or agency maintained by the Company for such purpose, in such coin or currency of the United States of America as at the time is legal tender for the payment of public and private debts; provided, however, the Company may pay such amounts by wire transfer or check payable in such money.  Equiniti Trust Company has been initially appointed as Paying Agent at its office or agency in 1110 Centre Pointe Curve, Suite 101 Mendota Heights, Minnesota 55120-4101.
 
Reference is hereby made to the further provisions of this CVR certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
 
Unless the certificate of authentication hereon has been duly executed by the Trustee referred to on the reverse hereof, this CVR certificate shall not be entitled to any benefit under the CVR Agreement, or be valid or obligatory for any purpose.
 
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
 
Dated:   [•]
 
 
By:
 
 
 
Name:
 
 
Title:

[Form of Reverse of CVR certificate]
 
1.          This CVR certificate is issued under and in accordance with the Contingent Value Rights Agreement, dated as of November 20, 2019 (the “CVR Agreement”), between the Company and Equiniti Trust Company, a limited trust company organized under the laws of the State of New York, as trustee (the “Trustee,” which term includes any successor Trustee under the CVR Agreement), and is subject to the terms and provisions contained in the CVR Agreement, to all of which terms and provisions the Holder of this CVR certificate consents by acceptance hereof.  The CVR Agreement is hereby incorporated herein by reference and made a part hereof.  Reference is hereby made to the CVR Agreement for a full statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the Holders of the CVRs.  All capitalized terms used in this CVR certificate without definition shall have the respective meanings ascribed to them in the CVR Agreement.  Copies of the CVR Agreement can be obtained by contacting the Trustee.
 
2.           On the Milestone Payment Date, the Company shall make the payments required by Section 3.1(c) of the CVR Agreement to the Trustee, for further distribution by the Trustee to the Holders in accordance with Section 3.1(c) of the CVR Agreement.
 
A-2
3.           In the event of any conflict between this CVR certificate and the CVR Agreement, the CVR Agreement shall govern and prevail.
 
4.           The Milestone Payment, if any, and interest thereon, if any, shall be payable by the Company in such coin or currency of the United States of America as at the time is legal tender for the payment of public and private debts; provided, however, that such amounts may be paid check or wire transfer payable in such money.  Equiniti Trust Company has been initially appointed as Paying Agent at its office or agency in 1110 Centre Pointe Curve, Suite 101 Mendota Heights, Minnesota 55120-4101.
 
5.           If an Event of Default occurs and is continuing, either the Trustee by notice in writing to the Company or the Trustee upon the written request of the Majority Holders (by notice in writing to the Company (and to the Trustee if given by the Majority Holders), shall bring suit in accordance with the terms and conditions of the CVR Agreement to protect the rights of the Holders, including to obtain payment of all amounts then due and payable, with interest at the Default Interest Rate from the date of the Event of Default through the date payment is made or duly provided for.
 
6.           No reference herein to the CVR Agreement and no provision of this CVR certificate or of the CVR Agreement shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay any amounts determined pursuant to the terms hereof and of the CVR Agreement at the times, place and amount, and in the manner, herein prescribed.
 
7.           The Milestone Payment or any other right, claim or payment of any kind under this CVR certificate, if any, shall be subordinated in right of payment, as set forth in Article 10 of the CVR Agreement, to the prior payment in full in cash or cash equivalents of all Senior Obligations whether outstanding on the date of the CVR Agreement or thereafter incurred.
 
8.          As provided in the CVR Agreement and subject to certain limitations therein set forth, the transfer of the CVRs represented by this CVR certificate is registrable on the Security Register, upon surrender of this CVR certificate for registration of transfer at the office or agency of the Company maintained for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new CVR certificates or Direct Registration Securities, for the same amount of CVRs, will be issued to the designated transferee or transferees.  The Company hereby initially designates the office of Trustee at 1110 Centre Pointe Curve, Suite 101 Mendota Heights, Minnesota 55120-4101 as the office for registration of transfer of this CVR certificate.
 
9.           As provided in the CVR Agreement and subject to certain limitations therein set forth, this CVR certificate is exchangeable for one or more CVR certificates or Direct Registration Securities representing the same number of CVRs as represented by this CVR certificate as requested by the Holder surrendering the same.
 
A-3
10.         No service charge will be made for any registration of transfer or exchange of CVRs, but the Company may require payment of a sum sufficient to cover all documentary, stamp or similar issue or transfer taxes or other governmental charges payable in connection with any registration of transfer or exchange.
 
11.         Prior to the time of due presentment of this CVR certificate for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this CVR certificate is registered as the owner hereof for all purposes, and neither the Company, the Trustee nor any agent shall be affected by notice to the contrary.
 
12.         Neither the Company nor the Trustee has any duty or obligation to the holder of this CVR certificate, except as expressly set forth herein or in the CVR Agreement.
 
A-4
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
 
This is one of the Global Securities referred to in the within-mentioned CVR Agreement.
 
 
[__________], as the Trustee
 
 
 
Dated:  [•]
 
 
     
  By:  
 
 
Authorized Signatory

A-5
Annex B
 
Form of Assignment and Assumption Agreement
 
ASSIGNMENT AND ASSUMPTION AGREEMENT, made as of [_____], [_____] (this “Agreement”), between Bristol-Myers Squibb Company, a Delaware corporation (“Assignor”), and [_____], a [___] (“Assignee”).  Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings given to them in the CVR Agreement referred to below.
 
W I T N E S S E T H:
 
WHEREAS, Assignor and Equiniti Trust Company, a limited trust company organized under the laws of the state of New York, as trustee (the “Trustee”) are parties to a Contingent Value Rights Agreement dated as of November 20, 2019 (the “CVR Agreement”); and
 
WHEREAS, Assignor and Assignee desire to execute and deliver this Agreement evidencing the assignment to Assignee of due and punctual payment of the Milestone Payment and the performance and observance of every term, covenant, obligation and condition of the CVR Agreement of Assignor to be performed and observed and the assumption thereof by Assignee.
 
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor and Assignee hereby agree as follows:
 
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 terms, covenants, obligations 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 terms, covenants, obligations 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.
 
B-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as of the day and year first above written.
 
 
BRISTOL-MYERS SQUIBB COMPANY
   
 
By:
 
   
Name:
 
Title:
     
 
[ASSIGNEE]
     
 
By:
 
   
Name:
 
Title:


B-2
Exhibit 4.2

EXECUTION VERSION

ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT
 
This Assignment, Assumption and Amendment Agreement (this “Agreement”) is made and entered into as of November 20, 2019, by and among Celgene Corporation, a Delaware corporation (“Assignor”), Bristol-Myers Squibb Company, a Delaware corporation (“Assignee”), American Stock Transfer & Trust Company, LLC, a New York limited liability company, as trustee (the “Existing Trustee”), and Equiniti Trust Company, a limited trust organized under the laws of the State of New York (the “New Trustee”).  All capitalized terms used but not defined in this Agreement have the meanings given to them in the CVR Agreement (as defined below).
 
WHEREAS, Assignor and the Existing Trustee entered into a Contingent Value Rights Agreement, dated as of October 15, 2010 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “CVR Agreement”);
 
WHEREAS, Assignor, Assignee and Burgundy Merger Sub, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Assignee (“Merger Sub”), are parties to that certain Agreement and Plan of Merger, dated as of January 2, 2019 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”), pursuant to which, among other things, Merger Sub merged with and into Assignor at the Merger Effective Time (as defined in the Merger Agreement), with Assignor continuing as the surviving corporation and a direct wholly-owned subsidiary of Assignee (the “Merger”);
 
WHEREAS, substantially contemporaneously with the execution and delivery of this Agreement, Assignee has, in accordance with Section 1.2 and Section 9.3 of the CVR Agreement, delivered an Officer’s Certificate and Opinion of Counsel to the Trustee, as conclusive evidence that the matters contemplated by Section 1 or Section 2 below, respectively, comply with the applicable provisions of the CVR Agreement and that there has been compliance with all conditions precedent provided for or relating to the foregoing under the CVR Agreement;
 
WHEREAS, pursuant to Section 6.1 of the CVR Agreement, the Company and the Trustee may, without the consent of the Holders, enter into one or more amendments to the CVR Agreement to, among other things, make any change that does not adversely affect the interests of the Holders or to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities;
 
WHEREAS, in connection with the Merger, (a) Assignor and the Existing Trustee desire to amend the CVR Agreement to clarify that the calculation of the combined capital and surplus of the Trustee shall include the Trustee and its affiliates; (b) Assignor and the Existing Trustee desire to amend the CVR Agreement to allow for the Securities to be listed on the New York Stock Exchange or any other national securities exchange following the Merger Effective Time; (c) Assignor and the Existing Trustee desire to amend the CVR Agreement to allow for Assignee, the parent company of Assignor following the Merger, to assume all of its rights, duties, obligations, liabilities and interests in, to and under the CVR Agreement; and (d) the parties desire to execute and deliver this Agreement as evidence of the agreement and consent of such assignment and assumption to Assignee;

WHEREAS, following the consummation of the Merger, Assignor desires to assign all of its rights, duties, obligations, liabilities and interests in, to and under the CVR Agreement to Assignee, and Assignee desires to assume all such rights, duties, obligations, liabilities and interests of Assignor in, to and under the CVR Agreement, which assignment shall be effective immediately following the listing of the Securities on the New York Stock Exchange;
 
WHEREAS, Section 4.10(b) of the CVR Agreement provides that the Trustee may at any time resign by giving written notice to the Assignor, effective upon the appointment of a successor trustee pursuant to Section 4.11 of the CVR Agreement; and
 
WHEREAS, immediately following the Merger Effective Time, the Existing Trustee desires to resign as trustee of the CVR Agreement, the Company desires to appoint the New Trustee as successor trustee of the CVR Agreement, and the New Trustee is willing to accept such appointment as successor trustee under the CVR Agreement.
 
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements and other good and valuable consideration, the parties, each intending to be legally bound, hereby agree as follows:
 
1. Amendment to Section 4.9, 7.7 and 9.4 of the CVR Agreement and Related Agreements.
 

a)
On the date hereof, effective immediately following the Merger Effective Time, the Assignor and the Existing Trustee hereby agree to amend and restate the first sentence of Section 4.9 of the CVR Agreement as follows:
 
“There shall at all times be a Trustee hereunder which satisfies the applicable requirements of Sections 310(a)(1) and (5) of the Trust Indenture Act and which, along with its Affiliates, has a combined capital and surplus of at least one hundred fifty million dollars ($150,000,000).”
 

b)
On the date hereof, effective immediately following the Merger Effective Time, the Assignor and the Existing Trustee hereby agree to amend and restate Section 7.7 of the CVR Agreement in its entirety as follows:
 
“The Company hereby covenants and agrees to use reasonable best efforts to cause the Securities to be approved for listing (subject to notice of issuance) for trading on the New York Stock Exchange or other national securities exchange and will use its reasonable best efforts to maintain such listing for so long as any CVRs remain Outstanding.”
 

c)
Without limiting the generality of Section 1(b) above, each party hereto acknowledges and agrees that Assignee, subject to, and conditioned upon, the occurrence of the Merger Effective Time, intends to delist the CVRs from the Nasdaq and list the CVRs on the New York Stock Exchange and consents to the same.
 

d)
On the date hereof, effective immediately following the Merger Effective Time, the Assignor and the Existing Trustee hereby agree to amend and restate Section 9.4 of the CVR Agreement in its entirety as follows:

2
“All covenants, provisions and agreements in this CVR Agreement by or for the benefit of the Company, the Trustee or the Holders shall bind and inure to the benefit of their respective successors, assigns, heirs and personal representatives, whether so expressed or not. The Company may assign this CVR Agreement without the prior written consent of the other Parties to this CVR Agreement to one or more of its Affiliates, provided, however, that in the event of any such assignment the Company shall, unless and to the extent performed by any such assignee, remain subject to its obligations and covenants hereunder, including but not limited to its obligation to make any Net Sales Payments and any Milestone Payments.”
 
2. Assignment and Assumption.
 

a)
Subject to, and conditioned upon the occurrence of the Merger Effective Time, and effective as of immediately following the listing of the Securities on the New York Stock Exchange, Assignor hereby assigns all of its rights, duties, obligations, liabilities and interests in, to and under the CVR Agreement to Assignee, and Assignee hereby assumes all such rights, duties, obligations, liabilities and interests of Assignor in, to and under the CVR Agreement, including, without limitation, the due and punctual payment of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of the CVR Agreement to be performed or observed by Assignor (collectively, the “Assignment and Assumption”).
 

b)
Each of the parties hereto acknowledges, agrees and consents to, subject to and conditioned upon the Assignment and Assumption, Assignor succeeding to and being substituted for Assignee with the same effect as if Assignor had been named in the CVR Agreement as the “Company” for all purposes under the CVR Agreement.  Without limiting the generality of the foregoing, (i) each of the parties, for the avoidance of doubt, acknowledges and agrees that Assignee shall succeed to and be substituted for Assignor automatically, without any further action of any party hereto, at the Merger Effective Time, (ii) the Existing Trustee (prior to the appointment and acceptance of the New Trustee as trustee under the CVR Agreement pursuant to Section 3) and the New Trustee (from and after the appointment and acceptance of the New Trustee as trustee pursuant to Section 3) agree to take any of the foregoing actions as if an assumption occurred pursuant to Section 9.1(i) and the other relevant provisions of the CVR Agreement in connection with the matters described by this Section 2 and (iii) the CVR Agreement shall automatically be deemed to be modified accordingly to give effect to the matters described by this Section 2.
 
3. Resignation of Existing Trustee; Appointment of New Trustee.
 

a)
Subject to, and conditioned upon, and effective as of immediately following, the Merger Effective Time, pursuant to Section 4.10(b) of the CVR Agreement, the Existing Trustee hereby notifies the Assignor that the Existing Trustee is resigning as trustee under the CVR Agreement.
 

b)
Subject to, and conditioned upon, and effective as of immediately following, the Merger Effective Time, (i) the Assignor hereby accepts the resignation of the Existing Trustee as trustee under the CVR Agreement and (ii) pursuant to Section 4.10(e) of the CVR Agreement, the Assignor hereby appoints the New Trustee as trustee under the CVR Agreement, to succeed to, and hereby vests the New Trustee with, all the estates, properties, rights powers, trusts, duties and obligations of the Trustee under the CVR Agreement with like effect as if originally named as trustee in the CVR Agreement.

3

c)
The New Trustee hereby accepts the appointment as trustee under the CVR Agreement and shall hereby be vested with all the estates, properties, rights powers, trusts, duties and obligations of the Trustee under the CVR Agreement with like effect as if originally named as trustee in the CVR Agreement.  The New Trustee hereby represents and warrants that it is qualified and eligible under Article 4 of the CVR Agreement to act as trustee under the CVR Agreement.
 

d)
From and after giving effect to the appointment and acceptance of the New Trustee as trustee under the CVR Agreement until otherwise amended, modified or supplemented in accordance with the CVR Agreement, references in the CVR Agreement to “Corporate Trust Office” or other similar terms shall be deemed to refer to the corporate trust office of the New Trustee at 1110 Centre Pointe Curve, Suite 101 Mendota Heights, Minnesota 55120-4101 or any other office of the New Trustee at which, at any particular time, its corporate trust business shall be administered.
 
4. 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.
 
5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York including, without limitation, Sections 5-1401 and 5-1402 of the New York General Obligations Law without regard to the conflict of laws principles thereof.
 
6. No Further Amendment to CVR Agreement. Except as specifically modified or amended by this Agreement, the CVR Agreement shall remain unaltered and in full force and effect and the respective terms, conditions and covenants thereof are herein in all respects confirmed.  Whenever the CVR Agreement is referred to in any agreement, document or other instrument, such reference will be to the CVR Agreement as modified and/or amended by this Agreement.
 
7. Amendment. This Agreement may not be changed, modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by the parties hereto or their respective successors and assigns specifically identifying such writing as an amendment to this Agreement.
 
8. Severability. In case any provision in this Agreement are held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
 
9. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together will be deemed an original of this Agreement.
 
[Signature Page Follows]

4
IN WITNESS WHEREOF, each of the undersigned has executed this Assignment and Assumption Agreement as of the date first written above.

 
ASSIGNOR:
   
 
CELGENE CORPORATION
     
 
By:
/s/ Katherine R. Kelly
 
Name:
Katherine R. Kelly
 
Title:
Secretary

 
ASSIGNEE:
   
 
BRISTOL-MYERS SQUIBB COMPANY
     
 
By:
/s/ Katherine R. Kelly
 
Name:
Katherine R. Kelly
 
Title:
Secretary

 
EXISTING TRUSTEE:
   
 
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC
     
 
By:
/s/ Michael Nespoli
 
Name:
Michael Nespoli
 
Title:
Executive Director

[Signature Page to Assignment and Assumption Agreement]

 
NEW TRUSTEE:
   
 
EQUINITI TRUST COMPANY
     
 
By:
/s/ Martin Knapp
 
Name:
Martin Knapp
 
Title:
Vice President

 
[Signature Page to Assignment and Assumption Agreement]
Exhibit 25.1

UNITED STATES
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) [ ]

 
EQUINITI TRUST COMPANY
 
 
(Exact name of trustee as specified in its charter)
 
New York
 
82-3568672
(Jurisdiction of incorporation or organization if not a U.S. national bank)
 
(I.R.S. Employer Identification no.)

1110 Centre Pointe Curve
Suite 101
Mendota Heights, Minnesota
 
55120-4101
(Address of principal executive offices)
 
(Zip Code)

 
 David Becker, 90 Park Avenue, 25th Floor, NY,
 
 
NY 10016, 347-640-1017
 
 
(Name, address and telephone number of agent for service)
 

Bristol-Myers Squibb Company
 (Exact name of obligor as specified in its charter)
 
Delaware
 
22-0790350
(State or other jurisdiction of incorporation or organization)
 
(I.R.S. Employer Identification no.)

430 East 29th Street, 14th Floor
New York, NY
 
10016
(Address of Principal Executive Offices)
 
(Zip Code)

 
Bristol-Myers Squibb Contingent Value Rights
 
     
 
Celgene Contingent Value Rights
 
 
(Title of Indenture Securities)
 

Item 1.
General Information.
Furnish the following information as to the Trustee -
 
(a)
Name and address of each examining or supervising authority to which it is subject.

New York State Department of Financial Services
1 State Street
New York, NY 10004-1511

U.S. Securities and Exchange Commission
100 F St. NE
Washington, DC 20549

 
(b)
Whether it is authorized to exercise corporate trust powers.

Yes.

Item 2.
Affiliations with the obligor.
If the obligor is an affiliate of the Trustee, describe each such affiliation.
None.

Item 3.
Voting securities of the trustee.
Furnish the following information as to each class of voting securities of the trustee:
As of __________________ (Insert date within 31 days).

Col. A
Col B
   
Title of Class
Amount Outstanding
   
Not Applicable.

Instruction. The term “voting security” is defined in Section 303(16) of the Act.
 
SEC1836(01-07)
Persons who respond to the collection of information
contained in this form are not required to respond unless the
form displays a currently valid OMB control number.
 
Item 4.
Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any other securities, of certificates or interest or participation in any other securities, of the obligor are outstanding, furnish the following information:

(a)
Title of the securities outstanding under each such other indenture.

(b)
A brief statement of the facts relied upon as a basis for the claim that no conflicting interest within the meaning of Section 310(b)( 1) of the Act arises as a result of the trusteeship under any such other indenture, including a statement as to how the indenture securities will rank as compared with the securities issued under such other indenture.
Not Applicable.
Item 5.
Interlocking directorates and similar relationships with the obligor or underwriters.
If the trustee or any of the directors or executive officers of the trustee is a director, officer, partner, employee, appointee, or representative of the obligor or of any underwriter for the obligor, identify each such person having any connection and state the nature of such condition.
Not Applicable.

Instructions.
1.
Notwithstanding General Instruction F, the term “underwriter” as used in this item does not refer to any person who is not currently engaged in the business of underwriting.
2.
The term “employee,” “appointee,” and “representative,” as used in this item, do not include connections in the capacity of transfer agent, registrant, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity or connections in the capacity of trustee, whether under an indenture or otherwise.
 
Item 6.
Voting securities of the trustee owned by the obligor or its officials.
Furnish the following information as to the voting securities of trustee owned beneficially by the obligor and each director, partner, and executive officer of the obligor:
As of __________________ (Insert date within 31 days).
Not Applicable.

Instructions.
1.
Names of persons who do not own beneficially any of the securities specified may be omitted.
2.
No information need be given in any case where the amount of voting securities of the trustee, owned beneficially by the obligor and its directors, partners, and executive officers, taken as a group, does not exceed 1 percent of the outstanding voting securities of the trustee.
 
Col. A
Col. B
Col. C
Col. D
       
Name of Owner
Title of Class
Amount Owned
Beneficially
Percent of Voting
Securities Represented by
Amount given in Col. C
       

Item 7.
Voting securities of the trustee owned by underwriters or their officials.
Furnish the following information as to the voting securities of the trustee owned beneficially by each underwriter for the obligor and each director, partner, and executive officer of such underwriter:
As of __________________ (Insert date within 31 days).
Not Applicable.

Instructions.
1.
Instruction 1 to Item 6 shall be applicable to this item.
2.
The name of each director, partner, or executive officer required to be given in Column A shall be set forth under the name of the underwriter of which he is a director, partner, of executive officer.
3.
No information need be given in any case where the amount of voting securities of the trustee owned beneficially by an underwriter and its directors, partners, and executive officers, taken as a group, does not exceed 1 percent of the outstanding voting securities of the trustee.

Col. A
Col. B
Col. C
Col. D
       
Name of Owner
Title of Class
Amount Owned
Beneficially
Percent of Voting
Securities Represented by
Amount given
in Col. C
       

Item 8.
Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor owned beneficially or held as collateral security for obligations in default by the trustee:
As of __________________ (Insert date within 31 days).
Not Applicable.

Instructions.
1.
As used in this item, the term “securities” includes only such securities as are generally known as corporate securities, but shall not include any note or other evidence of indebtedness issued to evidence an obligation to repay monies lent to a person by one or more banks, trust companies, or banking firms, or any certificate of interest or participation in any such note or evidence of indebtedness.
2.
For the purposes of this item the trustee shall not be deemed the owner of holder of (a) any security which it holds as collateral security (as trustee or otherwise) for an obligation which is not in default, or (b) any security which it holds as collateral security under the indenture to be qualified, irrespective of any default thereunder, or (c) any security which it holds as agent for collection, or as custodian, escrow agent or depositary, of in any similar representative capacity.
3.
No information will be furnished under this item as to holdings by the trustee of securities already issued under the indenture to be qualified or securities issued under any other indenture under which the trustee is also a trustee.
4.
No information need be given with respect to any class of securities where the amount of securities of the class which the trustee owns beneficially or holds as collateral security for obligations in default does not exceed 1 percent of the outstanding securities of the class.

Col. A
Col. B
Col. C
Col. D
Title of Class
Whether the
Securities Are Voting
or Nonvoting
Securities
Amount Owned
Beneficially or Held
as Collateral Security
for Obligations in
Default
Percentage of Class
Represented by
Amount Given in
Col. C
       

Item 9.
Securities of underwriters owned or held by the trustee.
If the trustee owned beneficially or holds as collateral security for obligations in default any securities on an underwriter for the obligor, furnish the following information as to each class of securities of such underwriter any of which are so owned or held by the trustee:
As of __________________ (Insert date within 31 days).

Col. A
Col. B
Col. C
Col. D
       
Title of Issuer
And Title of Class
Amount Outstanding
Amount Owned
Beneficially or Hold
as Collateral Security
for Obligations in
Default by Trustee
Percentage of Class
Represented by
Amount Given in
Col. C
       
Not Applicable.

Instruction. Instructions 1, 2, and 4 to Item 8 shall be applicable to this item.

Item 10.
Ownership or holdings by the trustee of voting securities of certain affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for obligations in default voting securities of a person who, to the knowledge of the trustee (1) owns 10 percent or more of the voting securities of the obligor or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the following information as to the voting securities of such person:
As of __________________ (Insert date within 31 days).

Col. A
Col. B
Col. C
Col. D
       
Title of Issuer
And Title of Class
Amount Outstanding
Amount Owned
Beneficially or Hold
as Collateral Security
for Obligations in
Default by Trustee
Percentage of Class
Represented by
Amount Given in
Col. C
       
Not Applicable.

Instruction. Instructions 1,2, and 4 to Item 8 shall be applicable to this item.

Item 11.
Ownership or holdings by the trustee of any securities of a person owning 50 percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for obligations in default any securities of a person who, to the knowledge of the trustee, owns 50 percent or more of the voting securities of the obligor, furnish the following information as to each class of securities of such person an of which are so owned or held by the trustee:
As of __________________ (Insert date within 31 days).

Col. A
Col. B
Col. C
Col. D
       
Title of Issuer
And Title of Class
Amount Outstanding
Amount Owned
Beneficially or Hold
as Collateral Security
for Obligations in
Default by Trustee
Percentage of Class
Represented by
Amount Given in
Col. C
       
Not Applicable.

Instructions 1, 2, and 4 to Item 8 shall be applicable to this item.

Item 12.
Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the trustee, furnish the following information:
As of __________________ (Insert date within 31 days).

Col. A
Col. B
Col. C
     
Nature of Indebtedness
Amount Outstanding
Date Due
     
Not Applicable.

Instructions.
1.
No information need be provided as to: (a) the ownership of securities issued under any indenture, or any security or securities having a maturity of more than one year at the time of acquisition by the indenture trustee; (b) disbursements made in the ordinary course of business in the capacity of trustee of an indenture, transfer agent, registrant, custodian, paying agent, fiscal agent or despositary, or other similar capacity; (c) Indebtedness created as a result of services rendered or premises rented; or indebtedness created as a result of goods or securities sole in a cash transaction; (d) the ownership of stock or of other securities of a corporation organized under Section 25(a) of the federal Reserve Act, as amended, which is directly or indirectly a creditor of an obligor upon the indenture securities; (e) the ownership of any drafts, bills of exchange, acceptances, or obligations which fall within the classification of self-liquidating paper.
2.
Information should be given as to the general type of indebtedness, such as lines of credit, commercial paper, long-term notes, mortgages, etc.

Item 13.
Defaults by the Obligor.

(a)
State whether there is or has been a default with respect to the securities under this indenture. Explain the nature of any such default.

(b)
If the trustee is a trustee under another indenture under which any other securities, or certificates of interest or participaton in any other securities, of the obligor are outstanding, or is trustee for more than one outstanding series of securities under the indenture, state whether there has been a default under any such indenture or series, identify the indenture or series affected, and explain the nature of any such default.
Not Applicable.

Item 14.
Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such affiliation.
Not Applicable.

Instruction.
1.
The term “affiliate” as defined in Rule o-2 of the General Rules and Regulations under the Act. Attention is directed to Rule 7a-26.
2.
Include the name of each such affiliate and the names of all intermediate affiliates, if any. Indicate the respective percentage of voting securities or other bases of control giving rise to the affiliation.

Item 15.
Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified under the Act.
Not Applicable.
 
Item 16.
List of Exhibits.  List below all exhibits filed as a part of this statement of eligibility.
 

1.
A copy of the Articles of Association of the Trustee as now in effect. Not Applicable.


2.
A copy of the certificate of authority of the Trustee to commence business, if not contained in the Articles of Association. Not Applicable.


3.
A copy of the authorization of the Trustee to exercise corporate trust powers, if such authorization is not contained in documents specified in paragraph (1) or (2) above. Attached.


4.
A copy of the existing bylaws of the Trustee, or instruments corresponding thereto. Attached.


5.
A copy of each Indenture referred to in Item 4, if the obligor is in default. Not Applicable.


6.
The consents of United States institutional trustees required by Section 321(b) of the Trust Indenture Act of 1939. Not Applicable.


7.
A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority. Not Applicable.


8.
A copy of any order pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Trust Indenture Act of 1939. Not applicable.


9.
Foreign trustees are required to file a consent to service of process of Form F-X [§269.5 of this chapter]. Not applicable.

[Signature Page Follows]
 
SIGNATURE
 
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Equiniti Trust Company, a limited trust company organizing and existing under the laws of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 18 day of November, 2019.
 
 
Equiniti Trust Company
   
 
By:
/s/ David L. Becker
   
Name:
David L. Becker
   
Title:
General Counsel

Exhibit 3

NEW YORK STATE
DEPARTMENT of
FINANCIAL SERVICES
 
Andrew M. Cuomo
Governor
Maria T. Vullo
Superintendent
 
January 26, 2018
 
Derrick Cephas, Partner
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153

Re: Equiniti Trust Company

Dear Mr. Cephas:
 
Enclosed is an Authorization Certificate dated January 26, 2018, authorizing  Equiniti Trust Company to transact the business of a trust company at 90 Park Avenue, 25th floor, New York, NY 10016.
 
Please keep this Department informed as to the date on which Equiniti Trust Company will commence operations. The New York Banking Law provides that any corporation which shall not commence business within six months after the date on which its Authorization Certificate is issued by the Superintendent shall forfeit its rights and privileges as a corporation, and its corporate powers shall cease and terminate unless the time within which such business may commence has been extended by the Superintendent.
 
Should you have any questions, please contact Principal Bank Examiner Ernest Trezza at 212- 709-1684.
 
Please acknowledge receipt of the Authorization Certificate by returning a signed copy of this letter.
 
Sincerely,

/s/ Robert Donovan
Robert Donovan
Deputy Superintendent
Capital Markets Division

Enc.
 
Received by:     
Date:
 

(212) 709-1605 | One State Street, New York, NY 10004-1511 | www.dfs.ny.gov

Exhibit 4

BY-LAWS

OF

EQUINITI TRUST COMPANY,
 a limited purpose trust company
with fiduciary powers
organized under the laws
of the State of New York,
(the “Trust Company”)

(Adopted as of December_, 2017)

BY-LAWS

OF

EQUINITI  TRUST COMPANY

ARTICLE I
OFFICES

Section 1.1     The Trust Company shall maintain a registered office in the State of New York. The Trust Company may also have other offices at such places, either within or without the State of New York, as the Board of Directors (the “Board”) may from time to time designate or the business of the Trust Company may require.

ARTICLE II
STOCKHOLDERS

Section 2.1     Annual Meeting.  The annual meeting of stockholders for the election of directors and the transaction of any other business as may properly come before such meeting shall be held within the first four (4) months of the Trust Company’s fiscal year on such date and at such time and place within New York City as may be designated from time to time by the Board and set forth in the notice of such meeting. At the annual meeting, any business may be transacted and any corporate action may be taken, whether stated in the notice of meeting or not, except as otherwise expressly provided by Law, the Trust Company’s Organization Certificate (the “Organization Certificate”) or these By-laws.

Section 2.2     Special Meetings.  Special meetings of the stockholders for any purpose may be called at any time by the Board, the Chairman of the Board, or by the Chief Executive Officer. Special meetings shall be held at such place or places within or without the State of New York as shall from time to time be designated by the Board and stated in the notice of such meeting. The notice of a special meeting shall state the purpose or purposes for which the meeting is called. At any special meeting, any business may be transacted and any corporate action may be taken, whether stated in the notice of meeting or not, except as otherwise expressly provided by Law, the Organization Certificate, or these By-laws.

Section 2.3     Notice of Meeting.  Written notice of the date, time and place of any stockholders’ meeting, whether annual or special, shall be given to each stockholder entitled to vote thereat, in person or by mailing the same to such stockholder’s address as the same appears upon the records of the Trust Company not less than ten (10) nor more than fifty (50) days prior to the date of such meeting. Notice of any adjourned meeting need not be given other than by announcement at the meeting so adjourned, unless otherwise ordered in connection with such adjournment. Such further notice, if any, shall be given as may be required by Law.

Section 2.4     Waiver of Notice.  Notice of meeting need not be given to any stockholder who submits a signed waiver of notice, in person or represented by proxy, whether before or after the meeting. The attendance of any stockholder at a meeting, in person or represented by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by such stockholder.

Section 2.5     Quorum.  Any number of stockholders, who are entitled to vote, who hold shares of the issued and outstanding capital stock of the Trust Company representing at least a majority of the votes entitled to be cast at a meeting of stockholders and who shall be present in person or represented by proxy at any meeting duly called shall constitute a quorum for all purposes except as may otherwise be provided by Law or the Organization Certificate. When a quorum is once present, it is not broken by the subsequent withdrawal of any stockholder.

Section 2.6     Adjournment of Meeting.  Whether or not a quorum is present, a meeting may be adjourned from time to time by the chairman of the meeting or by the affirmative vote of the stockholders present in person or represented by proxy and entitled to vote thereat holding shares representing at least a majority of the votes so present or represented and entitled to be cast (a “Majority Vote”), without notice other than by announcement at the meeting, until a quorum shall attend. Any meeting at which a quorum is present may also be adjourned in like manner and for such time or upon such call as may be determined by a Majority Vote. At any adjourned meeting at which a quorum shall be present, any business may be transacted and any corporate action may be taken which might have been transacted at the meeting as originally called.

Section 2.7     Voting.  Each stockholder entitled to vote at any meeting may vote either in person or by proxy, duly appointed by an instrument in writing executed by such stockholder. No proxy shall be valid after the expiration of eleven (11) months from the date thereof unless otherwise provided in the proxy. Each stockholder of Common Stock shall on each matter submitted to a vote at every meeting of the stockholders be entitled to one vote for each share of Common Stock, in each case registered in his or her name on the books of the Trust Company on the date fixed as a record date for the determination of its stockholders entitled to vote, as hereinafter provided. At all meetings of stockholders all matters, except as otherwise provided by Law, the Organization Certificate, or these By-laws shall be determined by a Majority Vote. Every proxy shall be revocable at the pleasure of the stockholder executing it, except in those cases where an irrevocable proxy is permitted by Law.

Section 2.8     Action by Stockholders Without a Meeting.  Whenever, under the New York Banking Law (the “Banking Law”), stockholders are required or permitted to take any action by vote, such action may be taken without a meeting upon written consent (including one provided by electronic transmission), setting forth the action so taken, signed by the holders of all outstanding shares entitled to vote thereon.

Section 2.9     List of Stockholders.  The officer of the Trust Company who has charge of the stock ledger of the Trust Company shall prepare and make a list of the stockholders entitled to vote at each meeting of stockholders, and make such list available for examination at such meetings of stockholders, in the manner prescribed by Law.

Section 2.10    Inspectors.  The Board may in advance of any stockholders’ meeting, or if required by Law shall, appoint one or more inspectors to act at meetings of stockholder stockholders or any adjournments thereof, in the manner, and with the powers, duties and obligations, prescribed or permitted by Law. No director or officer of the Trust Company shall be eligible to act as an inspector of an election of directors of the Trust Company.

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ARTICLE III
DIRECTORS

Section 3.1     Number and Qualifications.  The Board shall not be less than seven (7) and not more than eleven (11) and shall consist of such number as may be fixed from time to time by action of the Board. Any decrease in the number of directors shall be effective at the time of the next succeeding annual meeting of the stockholders unless there shall be vacancies in the Board in which case such decrease may become effective at any time prior to the next succeeding annual meeting to the extent of the number of such vacancies. Each director shall be at least 18 years of age. A director need not be a stockholder or a resident of the State of New York but at least one-half of the directors shall be citizens of the United States.

Section 3.2     Responsibilities.  The general oversight and supervision of the affairs of the Trust Company shall be vested in the Board, which may delegate to officers, employees and to committees of three (3) or more directors such powers and duties as it may from time to time see fit, subject to the limitations hereinafter set forth, and except as may otherwise be provided by the Banking Law.

Section 3.3     Election and Term of Office.  Except as otherwise provided by Law or the Organization Certificate, the directors shall be elected at each annual meeting of the stockholders at which a quorum is present by a plurality of the votes cast at such election. Directors who are elected at an annual meeting of stockholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal.

Section 3.4     Removal and Resignation of Directors.  Any director may be removed from the Board, with or without cause, by a Majority Vote of the stockholders, and the office of such director shall forthwith become vacant. Any director may resign as a director or from membership in any committee of the Board at any time. Such resignation shall be made in writing or by electronic transmission and shall take effect at the time specified therein, and if no time is specified, at the time of its receipt by an officer of the Trust Company. The acceptance of a resignation shall not be necessary to make it effective.

Section 3.5     Filling of Vacancies.  Unless otherwise provided in these By-laws, vacancies on the Board not exceeding one-third of the entire Board, occurring from any cause whatsoever, may be filled by the affirmative vote of a majority of the remaining directors, or by the stockholders at the next annual meeting or any special meeting called for that purpose by a plurality of the votes cast. Any person elected to fill a vacancy shall hold office, subject to the right of removal as herein before provided, until the next annual election and until the election and qualification of his or her successor.

Section 3.6     Regular Meetings.  Following the annual meeting of stockholders, the newly elected Board shall hold an annual meeting within or outside the State of New York for the purpose of the election of officers and the transaction of any other business as may properly come before the meeting no later than 25 days after the date of such annual meeting of stockholders. Such meeting may be held without notice immediately after the annual meeting of stockholders at the same place at which such stockholders’ meeting is held, provided a quorum is present. Other regular meetings may be held at such times and places within or outside the State of New York as may be determined from time to time by resolution of the Board. The Board shall hold a regular monthly meeting no less than 10 times per year and shall meet at least twice in any three consecutive calendar months. The Executive Committee shall meet at least once in each 30 day period during which the Board does not meet.

3
Section 3.7     Special Meetings.  Special meetings of the Board may be called at any time by the Chairman of the Board, the Chief Executive Officer or the President or by a majority of the directors then in office.

Section 3.8     Notice and Place of Meetings.  Regular meetings of the Board may be held without notice if held at such time and place as designated by resolution of the Board. Notice of any special meeting shall be sufficiently given if addressed to a director at a business or residential address of such director (as any such address as shall have been made available by the director to the Trust Company) and sent (i) at least four (4) business days before the day on which the meeting is to be held (if by U.S. mail), (ii) not later than 24 hours prior to the time at which the meeting is to be held if by telegraph, facsimile, cable or personal delivery (including by telephone, e-mail or other form of electronic transmission), (iii) in such lesser period of time as may be reasonable if the exigencies of the circumstances warrant. No notice of the annual meeting shall be required if held immediately after the annual meeting of the stockholders and if a quorum is present. Notice of meeting need not be given to any director who submits a signed waiver of notice before or after the meeting, nor to any director who attends the meeting without protesting prior to or at the beginning thereof, the lack of notice. Except as otherwise specifically required by Law or these By-laws, a notice or waiver of notice of any regular or special meeting need not state the purpose of such meeting.

Section 3.9     Business Transacted at Meetings.  Any business may be transacted and any corporate action may be taken at any regular or special meeting of the Board at which a quorum shall be present, whether such business or proposed action be stated in the notice of such meeting or not, unless special notice of such business or proposed action shall be required by Law.

Section 3.10     Quorum and Manner of Acting.  A majority of the entire Board shall be necessary to constitute a quorum for the transaction of business, and the actions of a majority of the directors present at a meeting at which a quorum is present shall be the actions of the Board, unless otherwise provided by Law, the Certificate of Incorporation or these By-laws. Whether or not a quorum is present at a meeting of the Board, a majority of the directors present may adjourn the meeting to such time and place as they may determine without notice other than an announcement at the meeting, except that notice of such adjournment shall be provided to those directors who were not present at the time of the adjournment. The directors shall act only as a Board and the individual directors shall have no power as such unless expressly delegated by the Board or any duly constituted committee of the Board.

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Section 3.11    Action Without a Meeting.  To the extent permitted by the Banking Law and applicable regulations, any action required or permitted to be taken by the Board or any committee thereof may be taken without a meeting if all members of the Board or the committee consent in writing to the adoption of a resolution authorizing the action (which consent may be provided by electronic transmission). The resolution and the written consents thereto in writing or by electronic transmission by the members of the Board or committee shall be filed with the minutes of the proceedings of the Board or committee.

Section 3.12    Participation by Telephone.  Any one or more members of the Board or any committee thereof may participate in a meeting of the Board or such committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute the presence of the person at the meeting.

Section 3.13    Compensation.  The Board may establish by resolution reasonable compensation of all directors for services to the Trust Company as a director, committee member or chairman of any committee and for attendance at each meeting of the Board or committee thereof. Nothing herein contained shall preclude any director from serving the Trust Company in any other capacity, as an officer, agent or otherwise, and receiving compensation therefor.

ARTICLE IV
COMMITTEES

Section 4.1     Executive Committee.  The Board, by resolution passed by a majority of the entire Board, may designate five (5) or more directors to constitute an Executive Committee to hold office at the pleasure of the Board, which Committee shall, during the intervals between meetings of the Board, have and exercise all of the powers of the Board in the management of the business and affairs of the Trust Company (including, without limitation, the powers of the Board with respect to officers of the Trust Company provided by the By-laws), subject only to such restrictions or limitations as the Board may from time to time specify, or as limited by the Banking Law, and shall have power to authorize the seal of the Trust Company to be affixed to all instruments which may require it. The Board may also, by resolution passed by a majority of the entire Board, designate alternative members of the Executive Committee, who may replace any absent or disqualified member at any meeting of the Executive Committee. Any member (or alternative member) of the Executive Committee may be removed at any time, with or without cause, by a resolution of a majority of the entire Board. Any person ceasing to be a director shall ipso facto cease to be a member of the Executive Committee. Any vacancy in the Executive Committee occurring from any cause whatsoever may be filled from among the directors by a resolution of a majority of the entire Board.

Section 4.2     Other Committees.  The Board, by a resolution passed by a majority of the entire Board, may appoint other committees consisting of no less than three (3) members, whose members are to be directors, and which committees shall exist for such time and have such powers and perform such duties as may from time to time be assigned to them by the Board and as are permitted by the Banking Law. The Board may also, by resolution passed by a majority of the entire Board, appoint alternative members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any member of such a committee may be removed at any time, with or without cause, by the Board. Any person ceasing to be a director shall ipso facto cease to be a member of any committee of the Board of which such person was a member. Any vacancy in a committee occurring from any cause whatsoever may be filled from among the directors by a resolution passed by a majority of the remaining directors on the Board.

5
Section 4.3     Powers of Committees.  Any Executive Committee or other committee, to the extent allowed by Law and provided in the resolution establishing such committee or in the By-laws, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Trust Company, including the power to adopt a certificate of ownership and merger, the authority to issue shares, and the authority to declare a dividend, except as limited by the Banking Law or other applicable Law, but no such committee shall have the power or authority as to the following matters: (i) the submission to stockholders of any action that needs stockholders’ authorization under the Banking Law, (ii) the filling of vacancies in the Board or in any committee, (iii) the fixing of compensation of the directors for serving on the board or on any committee, (iv) the amendment or repeal of these By-laws, or the adoption of new By-laws, (v) the amendment or repeal of any resolution of the board which by its terms shall not be so amendable or repealable or (vi) the taking of any action which is expressly required by any provision of the Banking Law to be taken at a meeting of the Board or by a specified proportion of the directors. All acts done by any committee within the scope of its powers and duties pursuant to these By-laws and the resolutions adopted by the Board shall be deemed to be, and may be certified as being, done or conferred under authority of the Board. The Secretary or any Assistant Secretary is empowered to certify that any resolution duly adopted by any such committee is binding upon the Trust Company and to execute and deliver such certifications from time to time as may be necessary or proper to the conduct of the business of the Trust Company. The Board shall have power at any time to fill vacancies in, to change the membership of, or to dissolve any committee. Nothing herein shall be deemed to prevent the Board from appointing one or more committees consisting in whole or in part of persons who are not directors of the Trust Company; provided, however, that any such committee shall not have nor exercise any authority of the Board.

Section 4.4     Resignation.  Any member of a committee may resign at any time. Such resignation shall be made in writing (including by electronic transmission) and shall take effect at the time specified therein, or, if no time is specified, at the time it is first received by the Chairman of the Board, the Chief Executive Officer, the President or the Secretary. The acceptance of a resignation shall not be necessary to make it effective unless so specified therein.

Section 4.5     Quorum.  A majority of the members of a committee shall constitute a quorum. The act of a majority of the members of a committee present at any meeting at which a quorum is present shall be the act of such committee. The members of a committee shall act only as a committee, and the individual members thereof shall have no powers as such.

Section 4.6     Record of Proceedings.  Each committee shall keep a record of its acts and proceedings, and shall report the same to the Board when and as required by the Board.

Section 4.7     Organization, Meetings, Notices.  A committee may hold its meetings at the principal office of the Trust Company, or at any other place upon which a majority of the committee may at any time agree. Each committee may make such rules as it may deem expedient for the regulation and carrying on of its meetings and proceedings. Unless otherwise ordered by the Executive Committee, any notice of a meeting of such committee may be given by the Secretary or by the Chairman of the committee. Meetings of a committee may be held without notice at such time and place as shall be designated by resolution of the committee. Notice of any special meeting of a committee shall be sufficiently given if provided in the same manner as provided by the By-laws for the giving of notices of special meetings of the Board.

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Section 4.8     Compensation.  The members of any committee shall be entitled to such compensation as may be allowed them by resolution of the Board.

ARTICLE V
OFFICERS

Section 5.1     Number.  The officers of the Trust Company shall be a Chairman of the Board, a Chief Executive Officer, a President, a Chief Financial Officer, a Chief Operating Officer, a Chief Compliance Officer, a Chief Information Security Officer, a Secretary and such other officers as may from time to time be designated in accordance with the provisions of this Section 5.1. In addition, other officers, one or more Vice Presidents (any one or more of whom may be given an additional designation of rank or function), a Controller, one or more Assistant Controllers, Assistant Secretaries or Assistant Treasurers and one or more Managing Directors (any one or more of whom may be given an additional designation of rank or function), may from time to time be elected by the Board, and shall have such powers and perform such duties as are provided by the By-laws or as may be assigned to them by the Board. Any two or more offices may be held by the same person, except the offices of President and Secretary or as otherwise prohibited by the Banking Law.

Section 5.2     Election; Term of Office and Qualifications.  The officers shall be chosen by the Board annually at the annual meeting of the Board. Each such officer shall, except as herein otherwise provided, hold office until the selection and qualification of his successor. The Chief Executive Officer, or President,  as the case may be, shall be a director of the Trust Company, and if the Chief Executive Officer, or President, as the case may be, ceases to be a director, he or she shall ipso facto cease to be such officer.

Section 5.3     Removal of Officers.  Any officer of the Trust Company may be removed from office, with or without cause, by a vote of a majority of the Board.

Section 5.4     Resignation.  Any officer of the Trust Company may resign at any time. Such resignation shall be in writing or by electronic transmission and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by an officer or Board member of the Trust Company. The acceptance of a resignation shall not be necessary in order to make it effective.

Section 5.5     Filling of Vacancies.  A vacancy in any office shall be filled by the Board from time to time as such vacancies may occur.

Section 5.6     Compensation.  The compensation of the officers shall be fixed by the Board or by any officer(s) to whom such authority may be delegated by the Board.

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Section 5.7     Chairman of the Board.  The Chairman of the Board shall be a director and may, but need not, be an employee of the Trust Company or hold other offices in the Trust Company. The Chairman shall preside at all meetings of the Board and of the stockholders at which he or she shall be present. The Chairman shall have power to call special meetings of the stockholders, the Board or the Executive Committee at any time and shall have such power and perform such other duties as may from time to time be designated by the Board.

Section 5.8     Chief Executive Officer.  The Chief Executive Officer shall be the chief executive of the Trust Company and the most senior executive of the Trust Company with day- to-day responsibility for the management of the Trust Company and, subject to the direction of the Board, shall have general and active control of the affairs and business of the Trust Company and general supervision of its officers, officials, employees and agents and shall have and may exercise all such powers and discharge such duties as usually pertain to the office of chief executive officer of a Trust Company, except to the extent that the Board shall have otherwise provided. The Chief Executive Officer may exercise any power or privilege on behalf of the Trust Company except as otherwise provided by applicable law or directed by the Board. The Chief Executive Officer shall, in the absence of the Chairman of the Board, if any, preside at meetings of the stockholders and the Board. The Chief Executive Officer may, subject to any contrary direction that the Board has provided, execute and deliver, in the name and on the behalf of the Trust Company, all agreements, contracts, deeds, instruments, certificates, applications, approvals, proxies, powers of attorney, undertakings, filings and other documents, except as otherwise provided by applicable law. In the absence of or inability of the Chief Executive Officer to serve, the President shall, on an interim basis, serve as the Chief Executive Officer to the Trust Company.

Section 5.9     President.  The President shall on an interim basis and, in the absence of or the inability of the Chief Executive Officer to serve, serve as the Chief Executive Officer of the Trust Company and shall have general supervision over the business of the Trust Company during that time period, subject, however, to the supervision of the Board.

Section 5.10    Chief Operating Officer.  The Chief Operating Officer shall be the chief operating officer of the Trust Company and shall assist the Chief Executive Officer in the control of the affairs and business of the Trust Company and the supervision of the Trust Company ’ s other officers, officials, employees and agents and shall have and may exercise all such powers and discharge such duties as usually pertain to the office of chief operating officer of a Trust Company, except to the extent that the Board or the Chief Executive Officer shall have otherwise provided. The Chief Operating Officer may exercise any power or privilege on behalf of the Trust Company except as otherwise provided by applicable law or directed by the Board or the Chief Executive Officer. The Chief Operating Officer may, subject to any contrary direction that the Board has provided, execute and deliver, in the name and on the behalf of the Trust Company, all agreements, contracts, deeds, instruments, certificates, applications, approvals, proxies, powers of attorney, undertakings, filings and other documents, except as otherwise provided by Law.

Section 5.11    Chief Compliance Officer.  The Chief Compliance Officer shall assist the Chief Executive Officer and the Chief Operating Officer in the control of the affairs and business of the Trust Company as it relates to the oversight of risk management and compliance with applicable laws and regulations and the supervision of the Trust Company’s other officers, officials, employees and agents and shall have and may exercise all such powers and discharge such duties as usually pertain to the office of Chief Compliance Officer of a Trust Company, except to the extent that the Board or the Chief Executive Officer shall have otherwise provided. The Chief Compliance Officer may exercise any power or privilege on behalf of the Trust Company except as otherwise provided by Law or directed by the Board or directed by the Chief Executive Officer.

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Section 5.12    Chief Financial Officer.  The Chief Financial Officer, subject to the direction of the Board and the Chief Executive Officer, shall have and may exercise all such powers and discharge such duties as usually pertain to the office of chief financial officer of a Trust Company, except to the extent that the Board or the Chief Executive Officer shall have otherwise provided. The Chief Financial Officer may exercise any power or privilege on behalf of the Trust Company relating to its finances except as otherwise provided by applicable law or directed by the Board or the Chief Executive Officer. The Chief Financial Officer may, subject to any contrary direction that the Board has provided, execute and deliver, in the name and on the behalf of the Trust Company, all agreements, contracts, deeds, instruments, certificates, applications, approvals, proxies, powers of attorney, undertakings, filings and other documents relating to the financial affairs of the Trust Company, except as otherwise provided by applicable law.

Section 5.13    Chief Information Security Officer.  The Chief Information Security Officer shall assist the Chief Executive Officer and the Chief Operating Officer in the control of the affairs and business of the Trust Company as it relates to the management of risk for security of the Trust Company’s information and technical systems and the supervision of the Trust Company’s other officers, officials, employees and agents and shall have and may exercise all such powers and discharge such duties as usually pertain to the office of Chief Information Security Officer of a Trust Company, except to the extent that the Board or the Chief Executive Officer shall have otherwise provided.

Section 5.14    Vice Presidents.  A Vice President shall perform such duties and have such powers as may be assigned by the Board or by the Chief Executive Officer or the Chief Operating Officer, who may at any time delegate to any Vice President any duties or powers that the Chief Executive Officer or Chief Operating Officer may exercise, and a Vice President may, subject to any contrary direction that the Board has provided, execute and deliver in the name and on the behalf of the Trust Company all agreements, contracts, deeds, instruments, certificates, applications, approvals, proxies, powers of attorney, undertakings, filings and other documents relating to the regular course of the duties of his office or so delegated to him.

Section 5.15    Secretary.  The Secretary shall have supervision of the records of actions of the Board and its committees and of the stockholders and of the ownership of shares of the Trust Company, and shall perform such other duties and have such other powers as may be prescribed by the By-laws and shall have and may exercise all such powers and discharge such duties as usually pertain to the office of secretary of a Trust Company, including, without limitation, the power to certify the Organization Certificate and By-laws of the Trust Company, any actions of the Board or its committee or the stockholders and the incumbency of any officers, except to the extent that the Board or the Chief Executive Officer shall have otherwise provided. The Secretary shall keep in safe custody the seal of the Trust Company and affix it to any instrument at the direction of any officer and may attest the affixing by his or her signature.

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Section 5.16    Assistant Officers.  Subject to the direction of the Chief Executive Officer and Secretary, any Assistant Secretary may perform any of the duties and exercise any of the powers that may be performed by the Secretary. Any other assistant officer may perform any of the duties and exercise any of the powers that may be exercised by the officer such assistant officer assists, subject to the direction of such officer.

ARTICLE VI
CAPITAL STOCK

Section 6.1     Issue of Certificates of Stock.  Certificates of capital stock shall be in such form as required by the Banking Law and as approved by the Board. They shall be numbered in the order of their issue, and shall be signed by the Chairman of the Board, the Chief Executive Officer or any Vice President, and the Secretary or Assistant Secretary and the seal of the Trust Company or a facsimile thereof may be impressed, affixed or reproduced thereon. In case any officer or officers who shall have signed any such certificate or certificates shall cease to be such officer or officers of the Trust Company, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Trust Company, such certificate or certificates may nevertheless be adopted by the Trust Company and be issued and delivered as though the person or persons who signed such certificate or certificates had not ceased to be such officer or officers of the Trust Company.

Section 6.2     Registration and Transfer of Shares.  The name of each person owning a share of the capital stock of the Trust Company together with the number of shares held by such person, the numbers of the certificates covering such shares and the dates of issue of such certificates shall be registered on the records of the Trust Company by the Secretary, Assistant Secretary, Treasurer or Assistant Treasurer. The shares of stock of the Trust Company shall be transferable on the books of the Trust Company by the holders thereof in person, or by their duly authorized attorneys or legal representatives, on surrender and cancellation of certificates for a like number of shares, accompanied by an assignment or power of transfer endorsed thereon or attached thereto, duly executed, and with such proof of the authenticity of the signature as the Trust Company or its agents may reasonably require. A record shall be made of each transfer. The Board may make other and further rules and regulations concerning the transfer and registration of certificates for stock.

Section 6.3     Lost, Stolen or Destroyed Certificates.  The holder of any stock of the Trust Company shall immediately notify the Trust Company of any loss, theft, destruction or mutilation of the certificates therefor. The Trust Company may issue a new certificate of stock in the place of any certificate theretofore issued by it and alleged to have been lost, stolen or destroyed, and the Board may, in its discretion, require the owner of the lost, stolen or destroyed certificate, or his legal representatives, to advertise the same in such manner as the Board shall require and/or to give the Trust Company a bond, in such sum not exceeding twice the value of the stock and with such surety or sureties as they may require, to indemnify it against any claim that may be made against it by reason of the issue of such new certificate and against all other liabilities arising therefrom, or may remit such owner to such remedy or remedies as such owner may have under applicable law.

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Section 6.4     Uncertificated Shares.  Shares of the Trust Company may not be uncertificated.

ARTICLE VII
DIVIDENDS AND SURPLUS

Section 7.1     General Discretion of Directors.  Subject to the provisions of the Organization Certificate and applicable law (including Section 112 of the Banking Law), the Board shall have power to fix and vary the amount to be set aside or reserved as surplus or net profits of the Trust Company and to determine whether any part of the surplus or net profits of the Trust Company shall be declared in dividends and paid to the stockholders, and to fix the date or dates for the payment of dividends. Dividends may be paid in cash, property or shares of capital stock.

ARTICLE VIII
RATIFICATION

Section 8.1     Any transaction questioned, including in any lawsuit, on the ground of lack of authority, defective or irregular execution or authorization, adverse interest of a director, officer or stockholder,  non-disclosure, miscomputation,  or the application of improper principles or practices of accounting or on any ground, may be ratified (including, if questioned in any lawsuit, before or after judgment), by the Board or by the stockholders, and if so ratified shall have the same force and effect as if the questioned transaction had been originally duly authorized. Such ratification shall be binding upon the Trust Company and its stockholders and shall constitute a bar to any claim or execution of any judgment in respect of such questioned transaction.

ARTICLE IX
MISCELLANEOUS PROVISIONS

Section 9.1     Fiscal Year.  The fiscal year of the Trust Company shall begin on January 1 and end on December 31 of each calendar year.

Section 9.2     Corporate Seal.  The corporate seal shall be in such form as approved by the Board and may be altered at its pleasure. The corporate seal may be used by causing it or a facsimile thereof to be impressed, affixed or reproduced by the Secretary, Assistant Secretary or any other officer at the direction of the Board.

Section 9.3    Notices.  Except as otherwise expressly provided herein, any notice required by these By-laws to be given shall be sufficient if given by depositing the same in a post-office or letter box in a sealed wrapper with a first-class postage prepaid stamp thereon and addressed to the person entitled thereto at such person’s business or home address, as the same appears upon the books of the Trust Company, or by telephoning, telegraphing,  faxing or emailing the same to such person at such address, and such notice shall be deemed to be have been given at the time it was mailed, telegraphed, faxed or emailed. Notices may also be given by electronic transmission as permitted by the Banking Law or as otherwise permitted by the By- laws and, if so given, shall be deemed to have been given when transmitted by the Trust Company.

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Section 9.4     Waiver of Notice.  Any stockholder or director may at any time, in writing, including by telegraph, fax or email, or by any electronic transmission waive any notice required to be given under the By-laws or (except where such waiver is expressly limited) under the Organization Certificate of the Trust Company or applicable Law, and, if any stockholder or director shall be present at any meeting, his or her presence shall constitute a waiver of such notice for such meeting unless he or she protests his or her lack of notice at the outset of the meeting.

Section 9.5     Deposits; Bank Accounts and Drafts.  Except for funds representing the capital stock issued and outstanding by the Trust Company which shall be deposited in a New York bank satisfactory to the New York State Department of Financial Services, all funds of the Trust Company shall be deposited, whenever practicable, to the credit of the Trust Company in such bank or banks, trust companies or other depositories as the Board or, subject to any contrary direction that the Board has provided, any of the Chief Executive Officer or the Chief Financial Officer, or any person designated by any such officer, whether or not an employee of the Trust Company, may select, and, subject to any contrary direction that the Board has provided, any of such persons may authorize the opening and maintenance of accounts at any such depository in the name and on behalf of the Trust Company as such person may deem necessary or appropriate for the conduct of the business and affairs of the Trust Company and, for the purpose of such deposit, checks, drafts and other orders for the payment of money to the order of the Trust Company may be endorsed for deposit, assigned and delivered by any officer of the Trust Company or by any employee or agent of the Trust Company designated by any officer or by such other person as the Board may authorize for that purpose. Subject to any contrary direction that the Board has provided, payments from such accounts may be made upon and according to a draft or check of the Trust Company executed on behalf of the Trust Company by any such person or in accordance with the instructions of such person.

Section 9.6     Voting Stock of Subsidiary Corporations.  Subject to any contrary direction that the Board has provided, powers of attorney, proxies, waivers of notice of meetings, consents and other instruments relating to securities owned by the Trust Company may be executed in the name of and on behalf of the Trust Company by any officer and any employee or other person designated by an officer and such person may, in the name and on behalf of the Trust Company, take all such action as the officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation, company, partnership or other entity in which the Trust Company may own securities, or to execute written consents in lieu thereof. At any such meeting, or in giving any such consent, such person shall possess and may exercise any and all rights and powers incident to the ownership of such securities and which, as the owner thereof, the Trust Company might have exercised and possessed if present. The Board may, by resolution, from time to time confer like powers upon any other person or persons.

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Section 9.7     Indemnification of Officers and Directors.  The Trust Company shall indemnify each person who serves or has served as a director or officer of the Trust Company against personal liability (including expenses) incurred in connection with any action, suit or proceeding to which such person is or is threatened to be made a party by reason of the fact that such person is or was a director or officer of the Trust Company, including service as a director or officer (or in any similar capacity) of any subsidiary of the Trust Company or, at the request of this Trust Company, of any other company, to the fullest extent and on the terms provided by Sections 7018 through 7023 of the Banking Law. Nothing contained in this Section shall limit the ability of the Trust Company to indemnify or advance expenses to any current or former director, officer, employee or agent of the Trust Company pursuant to Law or any agreement, action of the Board or stockholders or other arrangement or limit any right any current or former director, officer, employee or agent may have to indemnity or advance of expenses under any by- law of the Trust Company in effect prior to the date of these by-laws with respect to any action taken, any omission, status as a director, officer, employee or agent or any state of affairs existing prior to the date of these by-laws. No repeal or modification of this Section shall affect any rights or obligations hereunder of any person with respect to any action or omission of any such person occurring, or any state of facts then existing, before such repeal or modification, regardless of whether a claim arising out of such action, omission or state of facts is asserted before or after such repeal or modification

Section 9.8     Cessation of Officership and Directorship.  Any authority to act in the name or on the behalf of the Trust Company that was granted by name to any individual shall immediately cease in the event that such individual ceases to be an officer or director of the Trust Company or an affiliate thereof, unless otherwise provided by the Board.

Section 9.9     Definitions.  As used in these By-laws, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process. The term “entire Board” means the total number of directors which the Trust Company would have if there were no vacancies. The term “Law” means the New York Banking Law and any other applicable law, rule or regulation and, to the extent binding on the Trust Company, the constitutions, rules and regulations of any self-regulatory organization having jurisdiction or authority over the Trust Company.

ARTICLE X
AMENDMENTS

Section 10.1    The Board shall have the power to make, rescind, alter, amend and repeal these By-laws, provided, however, that the stockholders shall have power to rescind, alter, amend or repeal any By-laws made by the Board, and to enact By-laws which if so expressed shall not be rescinded, altered, amended or repealed by the Board.


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Exhibit 99.1

Bristol-Myers Squibb Completes Acquisition of Celgene,
Creating a Leading Biopharma Company

NEW YORK— November 20, 2019 — Bristol-Myers Squibb Company (NYSE:BMY) announced today that it has completed its acquisition of Celgene Corporation (NASDAQ:CELG) following the receipt of regulatory approval from all government authorities required by the merger agreement and, as announced on April 12, 2019, approval by Bristol-Myers Squibb and Celgene stockholders.

Upon completion of the acquisition, pursuant to the terms of the merger agreement, Celgene became a wholly owned subsidiary of Bristol-Myers Squibb Company. Under the terms of the merger, Celgene shareholders received for each share, 1.00 share of Bristol-Myers Squibb common stock, $50.00 in cash without interest and one tradeable Contingent Value Right (CVR), which will entitle the holder to receive a payment of $9.00 in cash if certain future regulatory milestones are achieved. Celgene common stock ceased trading as of the close of trading today. On November 21, 2019, newly issued Bristol-Myers Squibb shares and CVRs will commence trading on the New York Stock Exchange, with the CVRs trading under the symbol “BMYRT.”

“This is an exciting day for Bristol-Myers Squibb as we bring together the leading science, innovative medicines and incredible talent of Bristol-Myers Squibb and Celgene to create a leading biopharma company,” said Giovanni Caforio, M.D., Chairman and Chief Executive Officer of Bristol-Myers Squibb. “With our leading franchises in oncology, hematology, immunology and cardiovascular disease, and one of the most diverse and promising pipelines in the industry, I know we will deliver on our vision of transforming patients’ lives through science. I am excited about the opportunities for our current employees and the new colleagues that we welcome to the Company as we work together to deliver innovative medicines to patients.”

Since announcing the transaction on January 3, 2019, there have been a number of tangible advancements toward delivering on the key value drivers for the merger, including: further progress relating to the patent estate for REVLIMID®, the U.S. Food and Drug Administration (FDA) approval of INREBIC® (fedratinib) for the treatment of certain forms of myelofibrosis, the U.S. FDA approval of REBLOZYL® (luspatercept-aamt) for the treatment of anemia in certain adult patients with beta thalassemia, and regulatory filings of luspatercept and ozanimod in the U.S. and Europe. The Company has also made substantial progress toward the planning of a successful integration. For an overview of the combined company and the milestones achieved while the transaction was pending, visit www.bestofbiopharma.com.

OTEZLA® Divestiture Update

As announced on August 26, 2019, in connection with the regulatory approval process for the transaction, Celgene entered into an agreement to divest the global rights to OTEZLA® (apremilast) to Amgen (NASDAQ:AMGN) for $13.4 billion in cash following the closing of the merger with Bristol-Myers Squibb. On November 15, 2019, Bristol-Myers Squibb announced that the U.S. Federal Trade Commission (FTC) accepted the proposed consent order in connection with the pending merger of Bristol-Myers Squibb and Celgene, thereby permitting the parties to close the merger. Bristol-Myers Squibb expects the OTEZLA divestiture to be completed promptly following the closing of the merger and plans to prioritize the use of proceeds for debt reduction.

Accelerated Share Repurchase Program

Bristol-Myers Squibb also announced that its Board of Directors has authorized the repurchase of $7 billion of Bristol-Myers Squibb common stock.

In connection with this authorization, Bristol-Myers Squibb has entered into accelerated share repurchase (ASR) agreements with Morgan Stanley & Co. LLC and Barclays Bank PLC to repurchase, in aggregate, $7 billion of Bristol-Myers Squibb common stock. Bristol-Myers Squibb expects to fund the repurchase with cash on-hand. Approximately 80 percent of the shares to be repurchased under the transaction will be received by Bristol-Myers Squibb on November 27, 2019. The total number of shares ultimately repurchased under the program will be determined upon final settlement and will be based on a discount to the volume-weighted average price of Bristol-Myers Squibb’s common stock during the ASR period. Bristol-Myers Squibb anticipates that all repurchases under the ASR will be completed by the end of the second quarter of 2020.

Board Appointments

As previously announced, in connection with the closing of the transaction, Michael Bonney, Dr. Julia A. Haller and Phyllis Yale have joined the Bristol-Myers Squibb Board of Directors, expanding the size of the Board from 11 to 14. Mr. Bonney and Dr. Haller served on Celgene’s Board of Directors until the closing of the transaction. All three new directors bring valuable skill sets and significant experience relevant to Bristol-Myers Squibb’s business.

Advisors

Morgan Stanley & Co. LLC is serving as lead financial advisor to Bristol-Myers Squibb, and Evercore and Dyal Co. LLC are serving as financial advisors to Bristol-Myers Squibb. Kirkland & Ellis LLP is serving as Bristol-Myers Squibb’s legal counsel. J.P. Morgan Securities LLC is serving as lead financial advisor and Citi is acting as financial advisor to Celgene. Wachtell, Lipton, Rosen & Katz is serving as legal counsel to Celgene.

About Bristol-Myers Squibb

Bristol-Myers Squibb is a global biopharmaceutical company whose mission is to discover, develop and deliver innovative medicines that help patients prevail over serious diseases. For more information about Bristol-Myers Squibb, visit us at BMS.com or follow us on LinkedIn, Twitter, YouTube, Facebook and Instagram.

Cautionary Statement Regarding Forward-Looking Statements

This press release contains certain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, regarding, among other things, the research, development and commercialization of pharmaceutical products, Bristol-Myers Squibb’s acquisition of Celgene (the “Merger”), the pending sale of OTEZLA (the “Divestiture,” and together with the Merger, the “Transaction”), and the execution of the ASR program. These statements may be identified by the fact they use words such as “should,” “could,” “expect,” “anticipate,” “estimate,” “target,” “may,” “project,” “guidance,” “intend,” “plan,” “believe,” “will” and other words and terms of similar meaning and expression in connection with any discussion of future operating or financial performance, although not all forward-looking statements contain such terms. One can also identify forward-looking statements by the fact that they do not relate strictly to historical or current facts. Such forward-looking statements are based on historical performance and current expectations and projections about Bristol-Myers Squibb’s future financial results, goals, plans and objectives and involve inherent risks, assumptions and uncertainties, including internal or external factors that could delay, divert or change any of them in the next several years, that are difficult to predict, may be beyond Bristol-Myers Squibb’s control and could cause Bristol-Myers Squibb’s future financial results, goals, plans and objectives to differ materially from those expressed in, or implied by, the statements. Such risks, uncertainties and other matters include, but are not limited to, Bristol-Myers Squibb successfully using proceeds from the Divestiture; the combined company will have substantial indebtedness following the completion of the Transaction; Bristol-Myers Squibb is unable to achieve the synergies and value creation contemplated by the Merger; Bristol-Myers Squibb is unable to promptly and effectively integrate Celgene’s businesses; management’s time and attention is diverted on transaction related issues; disruption from the transaction makes it more difficult to maintain business, contractual and operational relationships; the credit ratings of the combined company decline following the Transaction; legal proceedings are instituted against Bristol-Myers Squibb, Celgene or the combined company; Bristol-Myers Squibb, Celgene or the combined company is unable to retain key personnel; and the announcement or the consummation of the Transaction and ASR program has a negative effect on the market price of the capital stock of the combined company or on the combined company’s operating results. No forward-looking statement can be guaranteed.

Forward-looking statements in this press release should be evaluated together with the many risks and uncertainties that affect Bristol-Myers Squibb’s business and market, particularly those identified in the cautionary statement and risk factors discussion in Bristol-Myers Squibb’s Annual Report on Form 10-K for the year ended December 31, 2018, as updated by its subsequent Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and other filings with the Securities and Exchange Commission. The forward-looking statements included in this press release are made only as of the date of this press release and except as otherwise required by applicable law, Bristol-Myers Squibb undertakes no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events, changed circumstances or otherwise.

Contacts

Media:
609-252-3345
media@bms.com

Shareholder Services:
Celgene shareholders with questions about their shares can contact an Equiniti information agent at 833-503-4131

Investors:
Tim Power
609-252-7509
Timothy.Power@bms.com

Or

Nina Goworek
908-673-9711
NGoworek@celgene.com

Or

Andy Brimmer / Dan Katcher / Jamie Moser
Joele Frank, Wilkinson Brimmer Katcher
212-355-4449