1
Exhibit 4.3
Conformed Copy
SECOND SUPPLEMENTAL INDENTURE, dated as of March 30, 2001 (this
"Second Supplemental Indenture"), between AMERICAN HOME PRODUCTS CORPORATION, a
Delaware corporation (the "Issuer") and THE CHASE MANHATTAN BANK (as successor
to MANUFACTURERS HANOVER TRUST COMPANY), a corporation duly organized and
existing under the laws of the State of New York, as trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Issuer and the Trustee have duly executed and
delivered an Indenture, dated as of April 10, 1992 (as amended on October 13,
1992, the "Indenture"), providing for the authentication, issuance, delivery and
administration of unsecured debentures, notes or other evidences of indebtedness
to be issued in one or more series by the Issuer (the "Securities");
WHEREAS, pursuant to the terms of the Indenture, the Issuer
desires to provide for the establishment of new series of Securities (the
"Notes") to be issued under the Indenture in an aggregate principal amount of up
to $3,000,000,000, which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, the Issuer desires to amend the provisions of the
Indenture to issue the Notes under the terms of the Indenture as supplemented
hereby;
WHEREAS, Section 8.1 of the Indenture expressly permits the
Issuer and the Trustee to enter into one or more supplemental indentures for the
purposes, inter alia, of establishing the forms and terms of Securities to be
issued under the Indenture or making certain provisions in the Indenture which
the Issuer deems necessary or desirable, and permits the execution of such
supplemental indentures without the consent of the Holders of any Securities
then outstanding;
WHEREAS, for the purposes hereinabove recited, and pursuant to
due corporate action, the Issuer has duly determined to execute and deliver to
the Trustee this Second Supplemental Indenture; and
WHEREAS, all conditions and requirements necessary to make this
Second Supplemental Indenture a valid, legal and binding instrument in
accordance with its terms have been done and performed, and the execution and
delivery hereof have been in all respects duly authorized;
NOW, THEREFORE, in consideration of the premises, the Issuer and
the Trustee mutually covenant and agree as follows:
SECTION 1. DEFINITIONS.
2
2
1.1 All terms contained in this Second Supplemental Indenture
shall, except as specifically provided herein or except as the context may
otherwise require, have the meanings given to such terms in the Indenture.
1.2 Unless the context otherwise requires, the following terms
shall have the following meanings:
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary that apply to such transfer or exchange.
"Depositary" means The Depository Trust Company or any other depositary
from time to time specified pursuant to the Indenture.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 4 hereof, substantially
in the form of Exhibit A hereto except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Exchange Notes" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Global Note Legend" means the legend set forth in Section 4.7(b) which
is required to be placed on all Global Notes issued under this Second
Supplemental Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of Exhibit A hereto that bears the Global Note Legend and that has the
"Schedule of Exchanges of Interests in the Global Note" attached thereto, issued
in accordance with Section 4.2(d), 4.4(b) or 4.6 hereof.
"Indirect Participant" means a person who holds a beneficial interest in
a Global Note through a Participant.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Issuer and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Non-U.S. Person" means any person that is not a U.S. person as defined
in Rule 902(o) under the Securities Act.
"Participant" means a person who has an account with the Depositary.
"Participating Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
3
3
"Private Exchange" has the meaning set forth in the Registration Rights
Agreement.
"Private Exchange Notes" has the meaning set forth in the Registration
Rights Agreement.
"Private Placement Legend" means the legend set forth in Section 4.7(a)
to be placed on all Notes issued under this Second Supplemental Indenture except
where otherwise permitted by the provisions of this Second Supplemental
Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registrar" means the registrar specified from time to time pursuant to
Section 3.2 of the Indenture.
"Registration Rights Agreement" means the Exchange and Registration
Rights Agreement, dated as of the date hereof, by and among the Issuer, Chase
Securities Inc. and Xxxxxxx Xxxxx Xxxxxx Inc. (as representatives of the several
initial purchasers listed therein), as such agreement may be amended, modified
or supplemented from time to time.
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Unrestricted Definitive Note" means one or more Definitive Notes that
do not bear and, pursuant to Section 4.7, are not required to bear the Private
Placement Legend.
"Unrestricted Global Note" means one or more Global Notes that do not
bear and, pursuant to Section 4.7, are not required to bear the Private
Placement Legend.
SECTION 2. TERMS AND CONDITIONS OF THE SECURITIES.
There is hereby authorized the following series of Notes:
2.1 5 7/8% Notes due 2004.
(a) Two series of senior unsecured notes (collectively, the
"5 7/8% Notes due 2004") are hereby authorized and designated as the "5 7/8%
Series A Notes due 2004" and the "5 7/8% Series B Notes due 2004" .
4
4
(b) The 5 7/8% Notes due 2004 shall be limited in aggregate
principal amount to $500,000,000 and, subject to adjustment as described in the
form of Note attached as Exhibit A hereto, shall bear interest at a rate of
5 7/8% per annum, shall mature on March 15, 2004 and shall not be subject to
optional redemption prior to the stated maturity date thereof.
(c) The 5 7/8% Series A Notes due 2004 and the 5 7/8% Series B
Notes due 2004 shall be identical in all material respects except that the (i)
5 7/8% Series A Notes due 2004 and any 5 7/8% Series B Notes due 2004 issued in
the Private Exchange shall be issued bearing the Private Placement Legend and
(ii) 5 7/8% Series B Notes due 2004 issued pursuant to the Exchange Offer shall
be issued without bearing the Private Placement Legend. It is intended that the
5 7/8% Series A Notes due 2004 will be exchanged for the 5 7/8% Series B Notes
due 2004 pursuant to Section 4.6 hereof.
2.2 6 1/4 % Notes due 2006.
(a) Two series of senior unsecured notes (collectively, the "6
1/4% Notes due 2006") are hereby authorized and designated as the "6 1/4 Series
A Notes due 2006" and the "6 1/4% Series B Notes due 2006".
(b) The 6 1/4% Notes due 2006 shall be limited in aggregate
principal amount to $1,000,000,000 and, subject to adjustment as described in
the form of Note attached as Exhibit A hereto, shall bear interest at a rate of
6 1/4% per annum, shall mature on March 15, 2006 and shall be subject to
optional redemption at any time by the Issuer pursuant to the terms set forth in
the form of Note with respect thereto.
(c) The 6 1/4% Series A Notes due 2006 and the 6 1/4% Series B
Notes due 2006 shall be identical in all material respects except that the (i) 6
1/4% Series A Notes due 2004 and any 6 1/4% Series B Notes due 2004 issued in
the Private Exchange shall be issued bearing the Private Placement Legend and
(ii) 6 1/4% Series B Notes due 2004 issued pursuant to the Exchange Offer shall
be issued without bearing the Private Placement Legend. It is intended that the
6 1/4% Series A Notes due 2006 will be exchanged for the 6 1/4% Series B Notes
due 2006 pursuant to Section 4.6 hereof.
2.3 6.70% Notes due 2011.
(a) Two series of senior unsecured notes (collectively, the
"6.70% Notes due 2011") are hereby authorized and designated as the "6.70%
Series A Notes due 2011" and the "6.70% Series B Notes due 2011".
(b) The 6.70% Notes due 2011 shall be limited in aggregate
principal amount to $1,500,000,000 and, subject to adjustment as described in
the form of Note attached as Exhibit A hereto, shall bear interest at a rate of
6.70% per annum, shall mature on March 15, 2011 and shall be subject to optional
redemption at any time by the Issuer pursuant to the terms set forth in the form
of Note with respect thereto.
(c) The 6.70% Series A Notes due 2011 and the 6.70% Series B
Notes due 2011 shall be identical in all material respects except that the (i)
6.70% Series A Notes due 2004 and
5
5
any 6.70% Series B Notes due 2004 issued in the Private Exchange shall be issued
bearing the Private Placement Legend and (ii) 6.70% Series B Notes due 2004
issued pursuant to the Exchange Offer shall be issued without bearing the
Private Placement Legend. It is intended that the 6.70% Series A Notes due 2011
will be exchanged for the 6.70% Series B Notes due 2011 pursuant to Section 4.6
hereof.
2.4 Issuance of Additional Securities. The Issuer shall be
permitted to amend this Second Supplemental Indenture in order to increase the
aggregate principal amount of Notes of any series that may be issued hereunder
without the consent of the Holders of Notes of any series so affected.
SECTION 3. FORM OF NOTES.
3.1 Form of Global Notes. The Notes shall be issued in the form
of Global Notes (including the Global Note Legend thereon and the "Schedule of
Exchanges of Interests in the Global Note" attached thereto). Each Global Note
shall represent such of the outstanding Notes as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee, as custodian of the Global Notes, in
accordance with instructions given by the Holder thereof as required by Section
4 hereof.
SECTION 4. TRANSFER AND EXCHANGE.
Notwithstanding any provisions to the contrary set forth in
Article Two of the Indenture, the following terms and conditions shall govern
the transfer and exchange of the Notes.
4.1 Transfer and Exchange of Global Notes. A Global Note may not
be transferred as a whole except 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, the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. All Global Notes will be
exchanged by the Issuer for Definitive Notes if (i) the Issuer delivers to the
Trustee 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
Issuer within 90 days after the date of such notice from the Depositary, (ii)
the Issuer in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for individual Notes and delivers a written
notice to such effect to the Trustee or (iii) an Event of Default shall have
occurred and be continuing with respect to the Notes. Upon the occurrence of any
of the preceding events in (i), (ii) or (iii) above, Definitive Notes shall be
issued in such names as the Depositary shall instruct the Trustee. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 4 hereof, shall be authenticated and
delivered in the form of, and shall
6
6
be, a Global Note. A Global Note may not be exchanged for another Note other
than as provided in this Section 4, however, beneficial interests in a Global
Note may be transferred and exchanged as provided in Section 4.2, 4.3 or 4.6
hereof.
4.2 Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
the Indenture, as supplemented by this Second Supplemental Indenture, and the
Applicable Procedures. Beneficial interests in any Restricted Global Note
bearing the Private Placement Legend shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Notes also shall
require compliance with either subparagraph (a) or (b) below, as applicable, as
well as one or more of the other following subparagraphs, as applicable:
(a) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth in
the Private Placement Legend. Beneficial interests in any Unrestricted Global
Note may be transferred to persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to register the
transfers described in this Section 4.2(a).
(b) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 4.2(a) above, the transferor of such
beneficial interest must deliver to the Depositary either (1) (A) a written
order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in the Global Note, or in another
Global Note in the case of an exchange, in an amount equal to the beneficial
interest to be transferred or exchanged and (B) instructions given in accordance
with the Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (2) (A) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged and (B) instructions given by the Depositary to the Registrar
containing information regarding the person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (A) above.
Upon consummation of an Exchange Offer by the Issuer in accordance with Section
4.6 hereof, the requirements of this Section 4.2(b) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in the
Letter of Transmittal delivered by the holder of such beneficial interests in
the Restricted Global Notes. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in the
Indenture, as supplemented by this Second Supplemental Indenture, and the Notes
or otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section 4.8 hereof.
(c) Transfer of Beneficial Interests to Another Restricted
Global Note. A
7
7
beneficial interest in any Restricted Global Note may be transferred to a person
who takes delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements of Section
4.2(b) above and the transferor delivers a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof.
(d) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted Global Note.
A beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 4.2(b) above and:
(i) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
holder of the beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal or via the Depositary's book-entry system
that it is not (A) a broker-dealer, (B) a person participating in the
distribution of the Exchange Notes or (C) a person who is an affiliate (as
defined in Rule 144) of the Issuer; or
(ii) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(iii) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(iv) the Registrar receives the following:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(B) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such
beneficial interest to a person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (iv), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
8
8
If any such transfer is effected pursuant to subparagraph (ii) or
(iv) above at a time when an Unrestricted Global Note has not yet been issued,
the Issuer shall issue and, upon receipt of an Issuer Order in accordance with
Section 2.4 of the Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (ii) or (iv) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
4.3 Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(a) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for
a Restricted Definitive Note or to transfer such beneficial interest to
a person who takes delivery thereof in the form of a Restricted
Definitive Note, then, upon receipt by the Registrar of the following
documentation:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for
a Restricted Definitive Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(ii) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (1) thereof;
(iii) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(iv) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(v) if such beneficial interest is being transferred to the
Issuer or any of its Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(vi) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 4.8 hereof, and the Issuer
shall execute and the Trustee
9
9
shall authenticate and deliver to the person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 4.3(a) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant. The Trustee shall make available
for delivery such Definitive Notes to the persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a beneficial interest
in a Restricted Global Note pursuant to this Section 4.3(a) shall bear the
Private Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(b) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted
Global Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a person who takes delivery
thereof in the form of an Unrestricted Definitive Note only if:
(i) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
holder of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a broker-dealer, (2) a person
participating in the distribution of the Exchange Notes or (3) a person who
is an affiliate (as defined in Rule 144) of the Issuer;
(ii) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(iii) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(iv) the Registrar receives the following:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for a Definitive Note that does not
bear the Private Placement Legend, a certificate from
such holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or
(B) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such
beneficial interest to a person who shall take delivery
thereof in the form of a Definitive Note that does not
bear the Private Placement Legend, a certificate from
such holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (iv), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably
10
10
acceptable to the Registrar to the effect that such exchange or transfer is
in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.
(c) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a person who takes
delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in Section 4.2(b) hereof, the Trustee shall cause the
aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 4.8 hereof, and the Issuer shall execute and the
Trustee shall authenticate and make available for delivery to the person
designated in the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 4.3(c) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant. The Trustee shall make available
for delivery such Definitive Notes to the persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 4.3(c) shall not bear the Private Placement Legend.
4.4 Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(a) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note, then,
upon receipt by the Registrar of the following documentation:
(i) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(b) thereof;
(ii) if such Restricted Definitive Note is being transferred
to a QIB in accordance with Rule 144A, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (1)
thereof;
(iii) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(2) thereof;
(iv) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(a)
thereof;
11
11
(v) if such Restricted Definitive Note is being transferred
to the Issuer or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(vi) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of the appropriate Restricted Global
Note.
(b) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange
such Note for a beneficial interest in an Unrestricted Global Note or transfer
such Restricted Definitive Note to a person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note only if:
(i) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not
(1) a broker-dealer, (2) a person participating in the distribution of the
Exchange Notes or (3) a person who is an affiliate (as defined in Rule 144)
of the Issuer;
(ii) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(iii) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(iv) the Registrar receives the following:
(A) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(B) if the Holder of such Definitive Notes proposes to
transfer such Notes to a person who shall take delivery
thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (iv), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance
12
12
with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section
4.4(b), the Trustee shall cancel the Definitive Notes and increase or cause to
be increased the aggregate principal amount of the Unrestricted Global Note.
(c) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Definitive Notes to a person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time. Upon
receipt of a request for such an exchange or registration of transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note and increase or
cause to be increased the aggregate principal amount of one of the Unrestricted
Global Notes.
If any such exchange or registration of transfer from a
Definitive Note to a beneficial interest in a Global Note is effected pursuant
to subparagraphs (b)(ii), (b)(iv) or (c) above at a time when an Unrestricted
Global Note has not yet been issued, the Issuer shall issue and, upon receipt of
an Issuer Order in accordance with Section 2.4 of the Indenture, the Trustee
shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
4.5 Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 4.5, the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section 4.5.
(a) Restricted Definitive Notes to Restricted Definitive Notes.
Any Restricted Definitive Note may be transferred to and registered in the name
of persons who take delivery thereof in the form of a Restricted Definitive Note
if the Registrar receives the following:
(i) if the transfer will be made pursuant to Rule 144A,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and
(ii) if the transfer will be made pursuant to Rule 903 or
Rule 904 under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications
in item (2) thereof;
(iii) if the transfer will be made pursuant to any other
exemption from the
13
13
registration requirements of the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(b) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a person or persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(i) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and
the Holder, in the case of an exchange, or the transferee, in the case of
a transfer, certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a person participating in the distribution of
the Exchange Notes or (3) a person who is an affiliate (as defined in Rule
144) of the Issuer;
(ii) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(iii) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(iv) the Registrar receives the following:
(A) if the Holder of such Restricted Definitive Notes proposes
to exchange such Notes for an Unrestricted Definitive Note,
a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or
(B) if the Holder of such Restricted Definitive Notes proposes
to transfer such Notes to a person who shall take delivery
thereof in the form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (iv), if the
Registrar so requests, an Opinion of Counsel in form reasonably acceptable
to the Issuer to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(c) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A
Holder of Unrestricted Definitive Notes may transfer such Notes to a person who
takes delivery thereof in the form of an Unrestricted Definitive Note. Upon
receipt of a request to register such a transfer, the Registrar shall register
the Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.
14
14
4.6 Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Issuer shall issue and,
upon receipt of an Issuer Order in accordance with Section 2.4 of the Indenture,
the Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by persons that
certify in the applicable Letters of Transmittal or via the Depositary's
book-entry system that (x) they are not broker-dealers, (y) they are not
participating in a distribution of the Exchange Notes and (z) they are not
affiliates (as defined in Rule 144) of the Issuer, and accepted for exchange in
the Exchange Offer and (ii) Definitive Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Notes accepted for
exchange in the Exchange Offer. In addition, if pursuant to the Registration
Rights Agreement, any Holder is entitled to receive Private Exchange Notes
simultaneously with the consummation of the Exchange Offer and so requests, the
Issuer shall issue and, upon receipt of an Issuer Order in accordance with
Section 2.4 of the Indenture, the Trustee shall authenticate (i) one or more
Restricted Global Notes that are identical in all material respects to the
Exchange Notes, except for the Private Placement Legend, in an aggregate
principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Notes accepted for exchange in the Private Exchange and
(ii) Restricted Definitive Notes that are identical in all material respects to
the Exchange Notes, except for the Private Placement Legend, in an aggregate
principal amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Private Exchange. Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate principal amount
of the applicable Restricted Global Notes to be reduced accordingly, and the
Issuer shall execute and the Trustee shall authenticate and make available for
delivery to the persons designated by the Holders of Definitive Notes so
accepted Definitive Notes in the appropriate principal amount.
4.7 Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Second Supplemental
Indenture unless specifically stated otherwise in the applicable provisions
hereof:
(a) Private Placement Legend. Except as permitted by subparagraph (b)
below, each Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF IS DEEMED
TO HAVE AGREED TO BE BOUND BY THE PROVISIONS OF A REGISTRATION
RIGHTS AGREEMENT AMONG AMERICAN HOME PRODUCTS CORPORATION AND THE
INITIAL PURCHASERS, DATED MARCH 30, 2001 (THE "REGISTRATION
RIGHTS AGREEMENT"). WE WILL PROVIDE A COPY OF THE REGISTRATION
RIGHTS AGREEMENT TO A HOLDER WITHOUT CHARGE UPON WRITTEN REQUEST
TO US AT OUR PRINCIPAL PLACE OF BUSINESS.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS
OF ANY STATE OR OTHER JURISDICTION. NEITHER
15
15
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH AMERICAN HOME PRODUCTS CORPORATION (THE
"COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE."
If Definitive Notes are issued, each Definitive Note will bear the following
additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to Sections 4.2(d), 4.3(b), 4.4(b), 4.4(c), 4.5(b), 4.5(c) or 4.6 (and
all Notes issued in exchange therefor or substitution thereof) shall not bear
the Private Placement Legend.
16
16
(b) Global Note Legends. Each Global Note shall bear legends in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.9 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 4.1 OF THE
SECOND SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE 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 CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX,
XXX XXXX, XXX XXXX) ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE 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."
4.8 Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.10 of the
Indenture. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an
17
17
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee 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
Note, such other Global Note shall be increased accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Depositary at the
direction of the Trustee to reflect such increase.
SECTION 5. MISCELLANEOUS.
5.1 Ratification of Indenture. The Indenture, as supplemented by this
Second Supplemental Indenture, is in all respects ratified and confirmed, and
this Second Supplemental Indenture shall be deemed a part of the Indenture in
the manner and to the extent herein and therein provided.
5.2 GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE, EACH NOTE AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS SECOND SUPPLEMENTAL
INDENTURE AND EACH NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.3 Counterparts. This Second Supplemental Indenture may be executed
in several counterparts, each of which shall be an original, and all
collectively but one instrument
5.4 The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Second
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which are made solely by the Issuer.
18
18
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be executed as of the date first above written.
AMERICAN HOME PRODUCTS CORPORATION, as Issuer
By: /s/ Xxxx X. X'Xxxxxx
---------------------------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Officer
19
EXHIBIT A
[FACE OF NOTE]
[INSERT GLOBAL NOTE LEGENDS, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
SECOND SUPPLEMENTAL INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE SECOND SUPPLEMENTAL INDENTURE]
No. $
---------- -------------
CUSIP:
------------
AMERICAN HOME PRODUCTS CORPORATION
-% [SERIES A] [SERIES B] NOTES DUE ____
ORIGINAL ISSUE DATE: INTEREST PAYMENT DATES:
INTEREST RATE: APPLICABILITY OF
OPTIONAL REDEMPTION
PROVISIONS:
MATURITY DATE:
American Home Products Corporation, a Delaware corporation
(together with its successors and assigns, the "Issuer"), for value received,
hereby promises to pay to _______, or registered assignees, the principal sum of
_______ on the Maturity Date specified above and to pay interest thereon at the
Interest Rate per annum specified above, semiannually in arrears on each
Interest Payment Date specified above during each year commencing on the
Interest Payment Date next succeeding the Original Issue Date specified above,
and at maturity (or on any redemption or repayment date).
Interest on this Note will accrue from the most recent Interest
Payment Date to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for, from the Original Issue Date, until
the principal hereof has been paid or duly made available for payment (except as
provided below). The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, subject to certain exceptions described
herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the date 15
calendar days prior to such Interest Payment Date (whether or not a Business
Day) (each such date a "Record Date"); provided, however, that interest payable
at maturity (or on any redemption or repayment date) will be payable to the
person to whom the principal hereof shall be payable. As used herein, "Business
Day" means any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which
A-1
20
banking institutions are authorized or required by law or regulation to close in
The City of New York.
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date) will be made
in immediately available funds upon surrender of this Note at the office or
agency of the Paying Agent, as defined on the reverse hereof, maintained for
that purpose in the Borough of Manhattan, The City of New York, or at such other
paying agency as the Issuer may determine. Payment of the principal of and
premium, if any, and interest on this Note will be made by U.S. dollar check
mailed to the address of the person entitled thereto as such address shall
appear in the Note register. A holder of U.S. $10,000,000 or more in aggregate
principal amount of Notes having the same Interest Payment Date will be entitled
to receive payments of interest, other than interest due at maturity or on any
date of redemption or repayment, by wire transfer of immediately available funds
if appropriate wire transfer instructions have been received by the Paying Agent
in writing not less than 15 calendar days prior to the applicable Interest
Payment Date.
Reference is hereby made to the further provisions of this Note
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 executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture, as defined on the
reverse hereof, or be valid or obligatory for any purpose.
A-2
21
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
DATED:
AMERICAN HOME PRODUCTS CORPORATION
By:
---------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:
---------------------
Name:
Title: Authorized Officer
A-3
22
[BACK OF NOTE]
This Note is one of a duly authorized issue of -% Series [A] [B]
Notes due _____ (the "Notes") of the Issuer. The Notes are issuable under an
indenture, dated as of April 10, 1992 (as amended by the Supplemental Indenture
dated as of October 13, 1992, and as further amended by the Second Supplemental
Indenture dated as of March 30, 2001, the "Indenture"), each between the Issuer
and The Chase Manhattan Bank (successor to Manufacturers Hanover Trust Company),
as Trustee (the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities of the Issuer, the Trustee and holders of the Notes and
the terms upon which the Notes are, and are to be, authenticated and delivered.
The Issuer has appointed The Chase Manhattan Bank at its principal corporate
trust office in The City of New York as the paying agent (the "Paying Agent,"
which term includes any additional or successor Paying Agent appointed by the
Issuer) with respect to the Notes. The terms of individual Notes may vary with
respect to interest rates, interest rate formulas, issue dates, maturity dates
or otherwise, all as provided in the Indenture. To the extent not inconsistent
herewith, the terms of the Indenture are hereby incorporated by reference
herein.
At any time on or after March 27, 2001, to and including March
15, 2006, the interest rate payable this Note will be subject to adjustment from
time to time if either Xxxxx'x Investors Service, Inc. ("Moody's") or Standard &
Poor's Ratings Services, a division of XxXxxx-Xxxx, Inc. ("S&P") downgrades the
rating ascribed to the Notes as set forth below.
(a) If the rating from Xxxxx'x is decreased to a rating set out
below, the interest rate will increase from the rate set forth on the face of
this Note by the percentage per annum set opposite that rating:
Rating Percentage
--------------------------------
Baa1 .25%
Baa2 .50%
Baa3 .75%
Ba1 1.00%
(b) If the rating from S&P is decreased to a rating set out
below, the interest rate will increase from the rate set forth on the face of
this Note by the percentage per annum set opposite that rating:
Rating Percentage
---------------------------------
BBB+ .25%
BBB .50%
BBB- .75%
BB+ 1.00%
A-4
23
Each adjustment required by any decrease in rating above, whether occasioned by
the action of Moody's or S&P, shall be made independent of any and all other
adjustments. If Moody's or S&P subsequently increases its ratings ascribed to
the Notes to any of the thresholds set forth above, the interest rate on this
Note will be readjusted downwards to the percentage set forth opposite such
ratings threshold above, provided that in no event shall (a) the interest rate
payable with respect to this Note be reduced to below the interest rate set
forth on the face of this Note and (b) the total increase in the interest rate
payable with respect to this Note exceed 2.00% per annum.
Any interest rate increase or decrease, as described herein, will
take effect from the Interest Payment Date following which a ratings change
requires an adjustment in the interest rate. [Insert for the 2011 Notes only:
The interest rate in effect on March 15, 2006 for this Note will, thereafter,
become the effective interest rate on this Note until maturity.]
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer upon payment of the
redemption price specified below. If the Issuer exercises the option to redeem
this Note, the redemption price will equal the greater of (i) 100% of the
principal amount of this Note or (ii) the sum, as determined by the Quotation
Agent (defined below), of the present value of the principal amount of this Note
and the remaining scheduled payments of interest on this Note from the
redemption date to the Maturity Date, exclusive of interest accrued to the
redemption date, discounted from the scheduled payment dates to the redemption
date on a semiannual basis (assuming a 360-day year of 30-day months) at the
Treasury Rate (defined below) plus - basis points, plus accrued and unpaid
interest on the principal amount being redeemed to the date of redemption.
Notice of redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on the
Note register not less than 30 nor more than 60 days prior to the date fixed for
redemption, subject to all the conditions and provisions of the Indenture. In
the event of redemption of this Note in part only, a new Note or Notes for the
amount of the unredeemed portion hereof shall be issued in the name of the
holder hereof upon the cancellation hereof.
For purposes of the immediately preceding paragraph, the
following defined terms shall have the meanings specified:
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable
to the Remaining Life that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity with the
Remaining Life.
"Comparable Treasury Price" means, with respect to any redemption
date, the average of two Reference Treasury Dealer Quotations for such
redemption date.
"Quotation Agent" means the Reference Treasury Dealer appointed
by the Issuer.
A-5
24
"Reference Treasury Dealer" means each of Chase Securities Inc.
and Xxxxxxx Xxxxx Xxxxxx Inc., and their successors; provided,
however, that if any of the foregoing ceases to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Issuer will substitute therefor another Primary Treasury
Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked price for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00p.m., New York City time, on the third Business Day
preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semiannual yield to maturity of the
Comparable Treasury Issue, calculated on the third business day
preceding such redemption date using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Interest payments for this
Note will be computed and paid on the basis of a 360-day year of twelve 30-day
months.
In the case where the Interest Payment Date or the Maturity Date
(or any redemption or repayment date) does not fall on a Business Day, payment
of interest, premium, if any, or principal otherwise payable on such date need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the Interest Payment Date or on the
Maturity Date (or any redemption or repayment date), and no interest on such
payment shall accrue for the period from and after the Interest Payment Date or
the Maturity Date (or any redemption or repayment date) to such next succeeding
Business Day.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon registration of
transfer or exchange hereof, is issuable only in fully registered form, without
coupons, and is issuable only in denominations of U.S. $1,000 and any integral
multiple of U.S. $1,000 in excess thereof.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its principal corporate trust office in The City of New
York a register for the registration and transfer of Notes. This Note may be
transferred at the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered holder hereof in
person or by the holder's attorney duly authorized in writing, and thereupon the
Trustee shall
A-6
25
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions and having a like aggregate
principal amount in authorized denominations, subject to the terms and
conditions set forth herein; provided, however, that the Trustee will not be
required (i) to register the transfer of or exchange any Note that has been
called for redemption in whole or in part, except the unredeemed portion of
Notes being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of such
Note not required to be repurchased, or (iii) to register the transfer of or
exchange Notes to the extent and during the period so provided in the Indenture
with respect to the redemption of Notes. Notes are exchangeable at said office
for other Notes of other authorized denominations of equal aggregate principal
amount having identical terms and provisions. All such exchanges and transfers
of Notes will be free of charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge in connection
therewith. All Notes surrendered for exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. The date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest results from
such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or
be destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the Issuer
in exchange for the Note so mutilated or defaced, or in lieu of the Note so
destroyed or lost or stolen, but, in the case of any destroyed or lost or stolen
Note, only upon receipt of evidence satisfactory to the Trustee and the Issuer
that such Note was destroyed or lost or stolen and, if required, upon receipt
also of indemnity satisfactory to each of them. All expenses and reasonable
charges associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of the
Note mutilated, defaced, destroyed, lost or stolen.
The Indenture provides that, (a) if an Event of Default (as
defined in the Indenture) due to the default in payment of principal of, or
interest on, any series of debt securities issued under the Indenture, including
the series of Notes of which this Note forms a part, or due to the default in
the performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Indenture shall have occurred and
be continuing, either the Trustee or the holders of not less than 25% in
aggregate principal amount of all affected debt securities issued under the
Indenture then outstanding (treated as one class) may then declare the principal
of all debt securities of all such series and interest accrued thereon to be due
and payable immediately and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the Indenture
applicable to all outstanding debt securities issued thereunder, including this
Note, or due to certain events of bankruptcy, insolvency and reorganization of
the Issuer, shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of all debt
A-7
26
securities issued under the Indenture then outstanding (treated as one class)
may declare the principal of all such debt securities and interest accrued
thereon to be due and payable immediately, but upon certain conditions such
declarations may be annulled and past defaults may be waived (except a
continuing default in payment of principal of, or interest on, such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding.
The Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal amount
of the debt securities of all series issued under the Indenture then outstanding
and affected (voting as one class), to execute supplemental indentures adding
any provisions to or changing in any manner the rights of the holders of each
series so affected; provided that the Issuer and the Trustee may not, without
the consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption or repayment thereof, or
change the currency of payment thereof, or impair or affect the right of any
holder to institute suit for the payment thereof; or (b) reduce the aforesaid
percentage in principal amount of debt securities the consent of the holders of
which is required for any such supplemental indenture; or (c) modify any of the
foregoing provisions except to increase any such percentage or to provide that
other provisions cannot be modified or waived without the consent of each
affected holder.
So long as this Note shall be outstanding, the Issuer will cause
to be maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Note as herein provided in the Borough of
Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the Notes.
The Issuer may designate other agencies for the payment of said principal,
premium and interest at such place or places (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such an agency,
the Issuer shall keep the Trustee advised of the names and locations of such
agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee
or any Paying Agent for payment of the principal of or interest or premium, if
any, on any Notes that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Notes that such moneys shall be
repaid to the Issuer and any person claiming such moneys shall thereafter look
only to the Issuer for payment thereof and (ii) such moneys shall be so repaid
to the Issuer. Upon such repayment all liability of the Trustee or such Paying
Agent with respect to such moneys shall thereupon cease, without, however,
limiting in any way any obligation that the Issuer may have to pay the principal
of or interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to pay
the principal of, premium, if any, and interest on this Note at the time, place
and rate, and in the coin and currency, herein prescribed unless otherwise
agreed between the Issuer and the registered holder of this Note.
A-8
27
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder in whose name this Note is registered as the owner hereof for
all purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture, or in this Note, or because of the indebtedness
evidenced hereby, shall be had against any incorporator, as such, or against any
past, present or future stockholder, officer or director, as such, of the Issuer
or of any successor, either directly or through the Issuer or any successor,
under any rule of law, statute or constitutional provision or by the enforcement
of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issuance hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
A-9
28
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute
another to act for him.
--------------------------------------------------------------------------
Date:
Your Signature:
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No:
SIGNATURE GUARANTEE:
---------------------------------
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
A-10
29
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1)
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of decrease Amount of increase of this Global
in Principal in Principal Note Signature of
Amount of this Amount of this following such authorized
Global Global decrease officer of
Date of Exchange Note Note (or increase) Trustee
---------------- ---------- --------- --------------- -------
-------------------
(1) This should be included only if the Note is issued in global form.
A-11
30
EXHIBIT B
[FORM OF CERTIFICATE OF TRANSFER]
American Home Products Corporation
Five Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Secretary of the Company
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
Re: -% Series A Notes due ____
Reference is hereby made to the Indenture, dated as of April 10,
1992, as amended by the Supplemental Indenture, dated as of October 13, 1992 and
as further amended by the Second Supplemental Indenture, date as of March 30,
2001 (as so amended and supplemented, the "Indenture"), between American Home
Products Corporation, as issuer (the "Company"), and The Chase Manhattan Bank,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to __________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE
144A. The Transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor hereby further
certifies that the beneficial interest or Restricted Definitive Note is
being transferred to a person that the Transferor reasonably believed
and believes is purchasing the beneficial interest or Restricted
Definitive Note for its own account, or for one or more accounts with
respect to which such person exercises sole investment discretion, and
such person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon consummation of the proposed Transfer in accordance
B-1
31
with the terms of the Indenture, the transferred beneficial interest or
Restricted Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Restricted Global Note and/or the Restricted Definitive Note and in the
Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the
United States or such Transferor and any person acting on its behalf
reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act and (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Restricted
Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted
Global Note and/or the Restricted Definitive Note and in the Indenture
and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE
SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is
being effected in compliance with the transfer restrictions applicable
to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities
Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies
that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or ...
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act.
B-2
32
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated: ______________, _____
B-3
33
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) - a beneficial interest in the Restricted Global Note; or
(b) - a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) - a beneficial interest in the:
(i) - Restricted Global Note (CUSIP ___), or
(ii) - Unrestricted Global Note (CUSIP ___); or
(b) - Restricted Definitive Note; or
(c) - an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
34
EXHIBIT C
[FORM OF CERTIFICATE OF EXCHANGE]
American Home Products Corporation
Five Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Secretary of the Company
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
Re: -% Series A Notes due ____
Reference is hereby made to the Indenture, dated as of April 10,
1992, as amended by the Supplemental Indenture, dated as of October 13, 1992 and
as further amended by the Second Supplemental Indenture, date as of March 30,
2001 (as so amended and supplemented, the "Indenture"), between American Home
Products Corporation, as issuer (the "Company"), and The Chase Manhattan Bank,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL NOTE.
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities
C-1
35
Act and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES.
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
C-2
36
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
Restricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
-----------------------------------
[Insert Name of Owner]
By:
--------------------------------
Name:
Title:
Dated:____________, ____
C-3
