-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NAOotQ/Npy1yG0uY6aHXlgnSx0VXQ0oTRPUxbR2dTbsQTnuZCm+uIOdu+EMGU/bC 27Yr4zOFjswkbdbQCl2gPg== 0000950123-04-001162.txt : 20040203 0000950123-04-001162.hdr.sgml : 20040203 20040203161439 ACCESSION NUMBER: 0000950123-04-001162 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20040203 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WYETH CENTRAL INDEX KEY: 0000005187 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 132526821 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-112450 FILM NUMBER: 04563215 BUSINESS ADDRESS: STREET 1: 5 GIRALDA FARMS CITY: MADISON STATE: NJ ZIP: 07940 BUSINESS PHONE: 9736605000 MAIL ADDRESS: STREET 1: 5 GIRALDA FARMS CITY: MADISON STATE: NJ ZIP: 07940 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN HOME PRODUCTS CORP DATE OF NAME CHANGE: 20020308 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN HOME PRODUCTS CORP DATE OF NAME CHANGE: 19920703 S-3 1 y93495sv3.txt FORM S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 3, 2004 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- WYETH (Exact name of registrant as specified in its charter) DELAWARE 13-2526821 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.)
FIVE GIRALDA FARMS MADISON, NEW JERSEY 07940 (973) 660-5000 (Address, including zip code and telephone number, including area code, of registrant's principal executive offices) --------------------- LAWRENCE V. STEIN, ESQ. SENIOR VICE PRESIDENT AND GENERAL COUNSEL WYETH FIVE GIRALDA FARMS MADISON, NEW JERSEY 07940 (973) 660-5000 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------------- COPIES TO: WILLIAM M. HASKEL, ESQ. JOSEPH H. KAUFMAN, ESQ. WYETH SIMPSON THACHER & BARTLETT LLP FIVE GIRALDA FARMS 425 LEXINGTON AVENUE MADISON, NEW JERSEY 07940 NEW YORK, NEW YORK 10017 (973) 660-5000 (212) 455-2000
--------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this registration statement. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] --------------------- CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------------------------- TITLE OF EACH CLASS OF AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF SECURITIES TO BE REGISTERED BE REGISTERED AGGREGATE PRICE PER UNIT AGGREGATE OFFERING PRICE REGISTRATION FEE(1) - --------------------------------------------------------------------------------------------------------------------------------- Floating Rate Convertible Senior Debentures due 2024.............. $1,020,000,000(2) 100%(2) $1,020,000,000(2) $129,234 - --------------------------------------------------------------------------------------------------------------------------------- Common Stock, $0.33 1/3 par value per share........................ 16,890,214 shares(3) (4) (4) (4) - --------------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------------
(1) Calculated at the statutory rate of .0001267 of the proposed maximum aggregate offering price, which price is exclusive of accrued interest and is estimated solely for the purpose of calculating the registration fee. (2) Estimated solely for the purpose of determining the registration fee, in accordance with Rule 457(o) under the Securities Act of 1933, as amended. (3) This number represents the total number of shares of common stock that are initially issuable upon conversion of the debentures registered hereby at the conversion rate of 16.559 shares per $1,000 of debentures, plus an indeterminate number of additional shares of common stock that may be issued from time to time upon conversion of the debentures as a result of anti-dilution adjustments in circumstances described in the prospectus that is part of this registration statement. (4) No additional consideration will be received for the common stock. Therefore, no additional registration fee is required pursuant to Rule 457(i). --------------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED. SUBJECT TO COMPLETION, DATED FEBRUARY 3, 2004 PROSPECTUS [WYETH LOGO] $1,020,000,000 FLOATING RATE CONVERTIBLE SENIOR DEBENTURES DUE 2024 --------------------- We issued the debentures in a private placement on December 16, 2003. The initial purchasers resold the debentures to qualified institutional buyers in accordance with Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"). This prospectus will be used by the selling securityholders from time to time to resell their debentures and any common stock issuable upon conversion of their debentures. We will not receive any proceeds from the resale of the debentures or any of those shares. The debentures bear interest at an annual rate equal to 6-month LIBOR, reset semiannually, minus 0.50%; provided that such rate will never be less than 0% per annum. The interest rate for the initial interest period, which commenced on December 16, 2003 and ends on July 14, 2004, will be 0.73625% per annum. Interest will be payable semiannually in arrears on January 15 and July 15 of each year, each an interest payment date, beginning July 15, 2004. The debentures are convertible by holders into shares of our common stock at an initial conversion rate of 16.559 shares of our common stock per $1,000 principal amount of debentures (subject to adjustment in certain events), which is equal to an initial conversion price of $60.39 per share, under the following circumstances: (1) during any calendar quarter commencing after March 31, 2004 and prior to December 31, 2022 (and only during such calendar quarter), if the price of our common stock issuable upon conversion reaches a specified threshold during the previous calendar quarter, as described in this prospectus, (2) at any time after December 31, 2022 and prior to maturity, if the price of our common stock issuable upon conversion reaches a specified threshold on any day following December 31, 2022, as described in this prospectus, (3) if we call the debentures for redemption, (4) upon the occurrence of specified corporate transactions described in this prospectus or (5) during any period in which the credit ratings assigned to the debentures are below the levels described in this prospectus. Upon conversion, we will have the right to deliver, in lieu of common stock, cash or a combination of cash and common stock. The debentures are unsecured and rank equally with all of our other existing and future unsecured and unsubordinated indebtedness. The debentures mature on January 15, 2024. We may redeem some or all of the debentures at any time on or after July 20, 2009 for a price in cash equal to 100% of the principal amount of debentures to be redeemed plus any accrued and unpaid interest, including additional interest, if any, to, but not including, the redemption date. Holders have the right to require us to purchase the debentures at a purchase price in cash equal to 100% of the principal amount of the debentures plus accrued and unpaid interest, including additional interest, if any, to, but not including, the purchase date, on July 15, 2009, January 15, 2014 and January 15, 2019 or upon a fundamental change, as described in this prospectus. For a more detailed description of the debentures, see "Description of the Debentures" beginning on page 12. The debentures have been designated for inclusion in The PORTAL(R) Market of the National Association of Securities Dealers, Inc. The common stock of Wyeth currently trades on the New York Stock Exchange (NYSE) under the symbol "WYE". On February 2, 2004, the last reported sales price for the common stock on the NYSE was $41.16 per share. INVESTING IN THE DEBENTURES INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON PAGE 6. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this prospectus is , 2004. TABLE OF CONTENTS
PAGE ---- Forward-Looking Information May Prove Inaccurate............ ii Where You Can Find More Information......................... ii Summary..................................................... 1 Risk Factors................................................ 6 Use of Proceeds............................................. 8 Price Range of Common Stock................................. 9 Dividend Policy............................................. 9 Ratio of Earnings to Fixed Charges.......................... 9 Selected Financial Data..................................... 10 Description of the Debentures............................... 12 Registration Rights......................................... 30 Description of Capital Stock................................ 32 Certain U.S. Federal Income Tax Consequences................ 35 Selling Securityholders..................................... 40 Plan of Distribution........................................ 41 Legal Matters............................................... 43 Experts..................................................... 43
The distribution of this prospectus and the offering and sale of the debentures or our common stock in certain jurisdictions may be restricted by law. This prospectus does not constitute an offer of, or an invitation to purchase, any of the debentures in any jurisdiction in which such offer or invitation would be unlawful. This prospectus summarizes certain documents and other information in a manner we believe to be accurate, but we refer you to the actual documents for a more complete understanding of what we discuss in this prospectus. In making an investment decision, you must rely on your own examination of us and the terms of the offering and the debentures or our common stock, including the merits and risks involved. We are not, and the selling securityholders are not, making any representation to any purchaser of the debentures regarding the legality of an investment in the debentures by the purchaser under any applicable laws or regulations. You should consult your own attorney, accountant, business adviser and tax adviser for legal, tax, business and financial advice regarding an investment in the debentures. You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized any person to provide you with different information or to make any representation not contained in, or incorporated by reference into, this prospectus. If anyone provides you with different or inconsistent information, you should not rely on it. You should not assume the information contained in this prospectus is accurate after the date on the front cover of this prospectus or that the information contained in documents incorporated by reference is accurate after the respective dates of filing of the incorporated documents. Our business, financial condition, results of operations and prospects may have changed since those dates. The selling securityholders reserve the right to withdraw this offering of the debentures and our common stock at any time. The selling securityholders also reserve the right to reject any offer to purchase some or all of the debentures or common stock for any reason and to allot to any prospective investor less than the full amount of debentures sought by the investor. i FORWARD-LOOKING INFORMATION MAY PROVE INACCURATE This prospectus contains or incorporates by reference "forward-looking statements" as that term is used in federal securities laws about our financial condition, results of operations and business. These statements include, among others: - statements concerning the benefits that we expect will result from our business activities and certain transactions we have completed, such as increased revenues, decreased expenses and avoided expenses and expenditures; and - statements of our expectations, beliefs, future plans and strategies, anticipated developments and other matters that are not historical facts. These statements may be made expressly in this prospectus, or may be incorporated by reference to other documents filed with the Securities and Exchange Commission (the "SEC"). You can identify many of these statements by looking for words such as "believes," "expects," "anticipates," "estimates," or similar expressions used in this prospectus or incorporated by reference in this prospectus. These forward-looking statements are subject to numerous assumptions, risks and uncertainties that may cause our actual results to be materially different from any future results expressed or implied by us in those statements, including the risks and uncertainties of a research-based pharmaceutical and health care company detailed in the documents filed with the SEC and incorporated by reference in this prospectus. Because the statements are subject to risks and uncertainties, actual results may differ materially from those expressed or implied by the forward-looking statements. We caution you not to place undue reliance on these forward-looking statements, which speak only as of the date of this prospectus or, in the case of documents incorporated by reference, the date of the applicable document. The cautionary statements contained or referred to in this section should be considered in connection with any subsequent written or oral forward-looking statements that we or persons acting on our behalf may issue. We do not undertake any obligation to review or confirm analysts' expectations or estimates or to release publicly any revisions to any forward-looking statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated events. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the Securities and Exchange Commission. You may read and copy any document we file at the SEC's public reference facilities in Washington, D.C., New York, New York, and Chicago, Illinois. For further information on the public reference rooms, please call the SEC at 1-800-SEC-0330. Our SEC filings are also available to the public from the SEC's web site at http://www.sec.gov. In addition, our SEC filings may be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. We incorporate by reference into this prospectus the documents listed below and any reports filed by us with the SEC after the date of this prospectus under Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"): - our Annual Report on Form 10-K, filed on March 31, 2003, for the year ended December 31, 2002; - our Quarterly Reports on Form 10-Q, filed on May 15, 2003, for the quarter ended March 31, 2003, on August 8, 2003, for the quarter ended June 30, 2003 and on November 12, 2003, for the quarter ended September 30, 2003; and - our Current Report on Form 8-K, filed on January 28, 2003 (related to the sale of our shares of Amgen common stock). ii You may obtain documents incorporated by reference into this prospectus at no cost by requesting them in writing from us at the following address: Investor Relations Wyeth Five Giralda Farms Madison, New Jersey 07940 Tel: (973)660-5000 Any statement contained in this prospectus or in a document incorporated by reference herein will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or therein, or in any other subsequently filed document that also is or is deemed to be incorporated herein or therein by reference, modifies or supersedes such statement. Any such statement so modified or superseded will not be deemed to constitute a part of this prospectus except as so modified or superseded. The prospectus constitutes a part of a registration statement on Form S-3 (referred to herein, including all amendments and exhibits, as the "Registration Statement") that we have filed with the SEC under the Securities Act of 1933, as amended. This prospectus does not contain all of the information contained in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the SEC. We refer you to the Registration Statement and related exhibits for further information regarding us and our debentures and any common stock issuable upon conversion of the debentures. The Registration Statement may be inspected at the public reference facilities maintained by the SEC at the addresses set forth above. Statements contained in this prospectus concerning the provisions of any document filed as an exhibit to the Registration Statement are not necessarily complete and, in each instance, reference is made to the copy of such document filed as an exhibit to the Registration Statement or otherwise filed with the SEC. Each such statement is qualified in its entirety by such reference. iii SUMMARY The following summary should be read together with the information contained in other parts of this prospectus and the documents we incorporate by reference. You should carefully read this prospectus and the documents we incorporate by reference to fully understand the terms of the debentures as well as the tax and other considerations that are important to you in making a decision about whether to invest in the debentures and the common stock issuable upon their conversion. ABOUT WYETH We are one of the world's largest research-based pharmaceutical and health care products companies. In March 2002, we changed our name to Wyeth after being known for 76 years as American Home Products Corporation. We are a leader in the discovery, development, manufacturing and marketing of pharmaceuticals, vaccines, biopharmaceuticals and non-prescription medicines. We are also a global leader in animal health care. We specialize in therapy areas of critical need, including neuroscience therapies, gastrointestinal diseases, musculoskeletal therapies, vaccines, infectious diseases, women's health care, cardiovascular diseases, transplantation and oncology. Our research and development utilizes three technology platforms: small molecules, vaccines and protein pharmaceuticals. Our pharmaceuticals segment manufactures, distributes, and sells human prescription pharmaceuticals, vaccines and biopharmaceuticals, nutritionals, and animal biologicals and pharmaceuticals. These products are promoted and sold worldwide primarily to wholesalers, pharmacies, hospitals, physicians, retailers, veterinarians, and other human and animal health care institutions. Some of these sales are made to large buying groups representing certain of these customers. Principal product categories for human use and their respective products are: neuroscience therapies including Effexor (marketed as Efexor internationally) and Effexor XR; cardiovascular products including Altace (co-marketed with King Pharmaceuticals, Inc.); nutritionals including S26, 2nd Age Promil and 3rd Age Progress (international markets only); gastroenterology drugs including Zoton (international markets only) and Protonix (U.S. market only); anti-infectives including Zosyn (marketed as Tazocin internationally); vaccines including Prevnar (marketed as Prevenar internationally); oncology therapies; musculoskeletal therapies including Enbrel (which, under an agreement, is co-promoted by Wyeth and Amgen in the United States and Canada with Wyeth having exclusive international rights to the product) and Synvisc; hemophilia treatments including BeneFIX coagulation factor IX (recombinant) and ReFacto albumin-free formulated factor VIII (recombinant); immunological products including Rapamune; and women's health care products including Premarin, Prempro, Premphase, and Triphasil (marketed as Trinordiol internationally). Principal animal health product categories include pharmaceuticals, vaccines including West Nile -- Innovator and endectocides including Cydectin. Our consumer healthcare segment manufactures, distributes and sells over-the-counter health care products. Principal consumer healthcare product categories and their respective products are: analgesics including Advil products; cough/cold/allergy remedies including Robitussin products, Dimetapp products and Alavert; nutritional supplements including Centrum products, Caltrate and Solgar products; hemorrhoidal, antacid, asthma and other relief items including Preparation H and Chap Stick products. These products are generally sold to wholesalers and retailers and are promoted primarily to consumers worldwide through advertising. These products are manufactured in the United States and Puerto Rico, and in 11 foreign countries. We are incorporated in the State of Delaware, and the address of our principal offices is Five Giralda Farms, Madison, New Jersey 07940. Our telephone number is 973-660-5000. You may visit us at our web site located at www.wyeth.com. The information contained in our web site has not been, and shall not be deemed to be, incorporated by reference into this prospectus. 1 SUMMARY OF THE OFFERING For a more complete description of the terms of the debentures and the common stock issuable upon conversion of the debentures, see "Description of the Debentures" and "Description of Capital Stock." For purposes of the description of debentures included in this prospectus, reference to "the company," "issuer," "Wyeth," "us," "we" and "our" refer only to Wyeth and do not include our subsidiaries. Issuer........................ Wyeth Debentures.................... $1,020,000,000 aggregate principal amount of Floating Rate Convertible Senior Debentures due 2024. Maturity...................... January 15, 2024 Interest...................... The debentures bear interest at an annual rate equal to 6-month LIBOR, reset semiannually, minus 0.50%; provided that such rate will never be less than 0% per annum. The interest rate for the initial interest period, which commenced on December 16, 2003 and ends on July 14, 2004, will be 0.73625% per annum. Interest will be payable semiannually in arrears on January 15 and July 15 of each year, each an interest payment date, beginning July 15, 2004. We will also pay additional interest on the debentures under the circumstances described in this prospectus below. Ranking....................... The debentures are unsecured and rank equally in right of payment with all of our other existing and future unsecured and unsubordinated indebtedness. The debentures are effectively subordinated to existing and future indebtedness and other liabilities of our subsidiaries and to any of our existing and future secured indebtedness. The indenture does not limit the amount of indebtedness we or our subsidiaries may incur. Conversion Rights............. Holders may convert their debentures into shares of our common stock under any of the following circumstances: (1) during any calendar quarter commencing after March 31, 2004 and prior to December 31, 2022 (and only during such calendar quarter) if the last reported sale price of our common stock for at least 20 trading days during the period of 30 consecutive trading days ending on the last trading day of the previous calendar quarter, is greater than or equal to 130% of the applicable conversion price, (2) at any time after December 31, 2022 and prior to maturity, if the last reported sale price of our common stock is greater than or equal to 130% of the applicable conversion price on any day after December 31, 2022, (3) if the debentures have been called for redemption, (4) upon the occurrence of specified corporate transactions described under "Description of the Debentures -- Conversion Rights -- Conditions to Conversion -- Conversion Upon Specified Corporate Transactions" or (5) during any period in which the credit rating assigned to the debentures by either Moody's Investor Services, Inc. and its successors ("Moody's") or Standard & Poor's Ratings Services, a division of the McGraw-Hill Companies, Inc. and its 2 successors ("S&P") is lower than Baa3 or BBB-, respectively, or the debentures are no longer rated by at least one of S&P or Moody's. For each $1,000 principal amount of debentures surrendered for conversion, you will receive 16.559 shares of our common stock. This represents an initial conversion price of $60.39 per share of common stock. As described in this prospectus, the conversion rate may be adjusted for certain reasons, but it will not be adjusted for accrued and unpaid interest, including additional interest, if any. Except as otherwise described in this prospectus, upon conversion of the debentures you will not receive any payment representing accrued and unpaid interest, including additional interest, if any. Upon conversion, we will have the right to deliver, in lieu of shares of our common stock, cash or a combination of cash and shares of our common stock. See "Description of the Debentures -- Conversion Rights -- Payment Upon Conversion." Debentures called for redemption may be surrendered for conversion prior to the close of business on the business day immediately preceding the redemption date. Optional Redemption........... Prior to July 20, 2009, the debentures are not redeemable. On or after July 20, 2009, we may redeem for cash all or part of the debentures at any time, upon not less than 20 nor more than 60 days notice before the redemption date, by mail to the trustee, the paying agent and each holder of debentures, for a price equal to 100% of the principal amount of the debentures to be redeemed plus any accrued and unpaid interest, including additional interest, if any, to, but not including, the redemption date. See "Description of the Debentures -- Optional Redemption." Purchase of Debentures by Us at the Option of the Holder... Holders have the right to require us to purchase all or any portion of their debentures for cash on July 15, 2009, January 15, 2014 and January 15, 2019. In each case, we will pay a purchase price equal to 100% of the principal amount of the debentures to be purchased plus any accrued and unpaid interest, including additional interest, if any, to, but not including, such purchase date. See "Description of the Debentures -- Purchase of Debentures by Us at the Option of the Holder." Fundamental Change............ If we undergo a Fundamental Change (as defined under "Description of the Debentures -- Fundamental Change Requires Purchase of Debentures by Us at the Option of the Holder"), holders will have the right, at their option, to require us to purchase for cash all or any portion of their debentures. Holders may exercise this right prior to the close of business on the business day immediately preceding the Fundamental Change purchase date, which will be no less than 20 and no more than 35 business days after we deliver you a notice of Fundamental Change. The cash price we are required to pay is equal to 100% of the principal amount of the debentures to be purchased plus accrued and unpaid interest, including additional interest, if any, to, but not including, the 3 Fundamental Change purchase date. See "Description of the Debentures -- Fundamental Change Requires Purchase of Debentures by Us at the Option of the Holder." Registration Rights........... Pursuant to a registration rights agreement we entered into with the initial purchasers, we filed a shelf registration statement under the Securities Act, of which this prospectus is a part, relating to the resale of the debentures and the common stock issuable upon conversion thereof. We have agreed to use our reasonable efforts to have that shelf registration statement declared effective within 180 days of the date of original issuance of the debentures, subject to our right to postpone under certain circumstances, and to keep such registration statement effective during the periods referred to below until the earlier of (i) the date all registrable securities have been sold pursuant to the shelf registration statement or Rule 144 under the Securities Act, or any successor provision and (ii) the expiration of the holding period with respect to the registrable securities under Rule 144(k) under the Securities Act, or any successor provision. However, holders of registrable securities will only be entitled to sell such securities under the shelf registration statement during the following periods: (1) the 20 calendar day period commencing on the deadline for filing any of our quarterly reports on Form 10-Q or annual reports on Form 10-K; (2) in connection with our option to purchase the debentures, the period commencing on the date we call the debentures for redemption and ending on the redemption date; (3) in connection with any Fundamental Change, the period commencing on the date we send a Fundamental Change purchase notice and ending on the Fundamental Change purchase date, unless we elect to pay all conversions during this period in cash; and (4) in connection with conversions upon specified corporate transactions, the period commencing on the date we send notice of such transaction and ending on the earlier of the business day following the ex-dividend date for such transaction or our public announcement that such transaction will not take place, unless we elect to pay all conversions during this period in cash. If we do not fulfill certain of our obligations under the registration rights agreement, we will be required to pay additional interest to holders of the debentures. See "Registration Rights." Use of Proceeds............... We will not receive any proceeds from the sale by selling securityholders of the debentures or shares of common stock issuable upon conversion of the debentures. Trustee, Paying Agent and Conversion Agent.............. JPMorgan Chase Bank. Risk Factors.................. You should consider carefully all of the information set forth and incorporated by reference in this prospectus, including the specific 4 factors set forth under "Risk Factors" beginning on page 6, before deciding whether to invest in the debentures. Governing Law................. The indenture and the debentures are governed by and construed in accordance with the laws of the State of New York. Book-Entry Form............... The debentures were issued in book-entry form and are represented by permanent global certificates deposited with, or on behalf of, The Depository Trust Company ("DTC") and registered in the name of a nominee of DTC. Beneficial interests in any of the debentures will be shown on, and transfers will be effected only through, records maintained by DTC or its nominee and any such interest may not be exchanged for certificated securities, except in certain circumstances. Trading....................... The debentures are not listed on any securities exchange or included in any automated quotation system. No assurance can be given as to the development or liquidity of any trading market for the debentures. Our common stock is listed on the New York Stock Exchange under the symbol "WYE." 5 RISK FACTORS Before purchasing the debentures you should carefully consider the following risk factors, the other information contained in this prospectus and the information incorporated by reference herein in order to evaluate an investment in the debentures. RISK RELATED TO THE DEBENTURES AN ACTIVE TRADING MARKET FOR THE DEBENTURES MAY NOT DEVELOP. The debentures are a new issue of securities with no established trading market and will not be listed on any securities exchange. Each of the initial purchasers has informed us that it intends to make a market in the debentures. However, the initial purchasers are not obligated to do so and may cease their market-making at any time. In addition, such market-making activity will be subject to limits imposed by the Securities Act and the Exchange Act and may be limited during the pendency of the effectiveness of a shelf registration statement, of which this prospectus is a part, or any post-effective amendment. Although we are required to use our reasonable efforts to have the shelf registration statement declared effective by the SEC, we cannot assure you that an active trading market for the debentures will develop. If an active trading market does not develop, the market price and liquidity of the debentures may be adversely affected. THE PRICE OF OUR COMMON STOCK, AND THEREFORE THE PRICE OF THE DEBENTURES, MAY FLUCTUATE SIGNIFICANTLY, WHICH MAY MAKE IT DIFFICULT FOR HOLDERS TO RESELL THE DEBENTURES OR THE SHARES OF OUR COMMON STOCK ISSUABLE UPON CONVERSION OF THE DEBENTURES WHEN DESIRED OR AT ATTRACTIVE PRICES. We expect our stock price to be subject to fluctuations as a result of a variety of factors, including factors beyond our control. These factors include the factors discussed under "Forward-Looking Information May Prove Inaccurate." In addition, the stock markets in general, including the New York Stock Exchange, recently have experienced significant price and trading fluctuations. These fluctuations have resulted in volatility in the market prices of securities that often has been unrelated or disproportionate to changes in operating performance. These broad market fluctuations may adversely affect the market price of our common stock and the debentures. THE TRADING PRICES FOR THE DEBENTURES WILL BE DIRECTLY AFFECTED BY THE TRADING PRICE OF OUR COMMON STOCK AND COULD BE AFFECTED BY HEDGING ACTIVITY BY INVESTORS IN THE DEBENTURES. We expect that the trading price of the debentures in the secondary market will be significantly affected by the trading price of our common stock, the general level of interest rates and our credit quality. This may result in greater volatility in the trading prices of the debentures than would be expected for non-convertible debt securities. It is impossible to predict whether the price of our common stock or interest rates will rise or fall. The trading price of our common stock will be influenced by our operating results and prospects and by economic, financial, regulatory and other factors. In addition, general market conditions, including the level of, and fluctuations in, the trading prices of stocks generally, and sales of substantial amounts of common stock by us in the market after the offering of the debentures, or the perception that such sales may occur, could affect the price of our common stock. In addition to the factors described above, the price of our common stock could be affected by possible sales of our common stock by investors who view the debentures as a more attractive means of equity participation in our company and by hedging or arbitrage trading activity that we expect to develop involving our common stock as a result of the issuance of the debentures. The hedging or arbitrage could, in turn, affect the trading price of the debentures. 6 THE CONDITIONAL CONVERSION FEATURE OF THE DEBENTURES COULD RESULT IN YOU RECEIVING LESS THAN THE VALUE OF THE COMMON STOCK INTO WHICH A DEBENTURE WOULD OTHERWISE BE CONVERTIBLE. The debentures are convertible into shares of our common stock only if specified conditions are met. If the specific conditions for conversion are not met, you will not be able to convert your debentures, and you may not be able to receive the value of the common stock into which the debentures would otherwise be convertible. WE MAY NOT HAVE THE ABILITY TO RAISE THE FUNDS NECESSARY TO PURCHASE THE DEBENTURES UPON A FUNDAMENTAL CHANGE OR OTHER PURCHASE EVENT, AS REQUIRED BY THE INDENTURE GOVERNING THE DEBENTURES. On July 15, 2009, January 15, 2014 and January 15, 2019, holders of the debentures may require us to purchase their debentures for cash. In addition, holders of the debentures also may require us to purchase their debentures upon a Fundamental Change as described under "Description of the Debentures -- Fundamental Change Requires Purchase of Debentures by Us at the Option of the Holder." A Fundamental Change also may constitute an event of default under, and result in the acceleration of the maturity of, our other indebtedness under another indenture or credit facility or other indebtedness that we may incur in the future. We cannot assure you that we would have sufficient financial resources, or would be able to arrange financing, to pay the purchase price for the debentures tendered by holders. Failure by us to purchase the debentures when required will result in an event of default with respect to the debentures. IF WE INCREASE THE CASH DIVIDEND ON OUR COMMON STOCK, YOU MAY BE DEEMED TO HAVE RECEIVED A TAXABLE DIVIDEND WITHOUT THE RECEIPT OF ANY CASH. If we increase the cash dividend on our common stock, an adjustment to the conversion rate may result, and you may be deemed to have received a taxable dividend subject to United States federal income tax without the receipt of any cash. If you are a non-U.S. holder (as defined in "Certain U.S. Federal Income Tax Consequences"), such deemed dividend may be subject to United States federal withholding tax at a 30% rate or such lower rate as may be specified by an applicable treaty. See "Certain U.S. Federal Income Tax Consequences." IF YOU HOLD DEBENTURES, YOU WILL NOT BE ENTITLED TO ANY RIGHTS WITH RESPECT TO OUR COMMON STOCK, BUT YOU WILL BE SUBJECT TO ALL CHANGES MADE WITH RESPECT TO OUR COMMON STOCK. If you hold debentures, you will not be entitled to any rights with respect to our common stock (including, without limitation, voting rights and rights to receive any dividends or other distributions on our common stock), but you will be subject to all changes affecting the common stock. You will only be entitled to rights on the common stock if and when we deliver shares of common stock to you upon conversion of your debentures. For example, in the event that an amendment is proposed to our Restated Certificate of Incorporation or Bylaws requiring stockholder approval and the record date for determining the stockholders of record entitled to vote on the amendment occurs prior to delivery of the common stock, you will not be entitled to vote on the amendment, although you will nevertheless be subject to any changes in the powers, preferences or special rights of our common stock. CONVERSION OF THE DEBENTURES WILL DILUTE THE OWNERSHIP INTEREST OF EXISTING STOCKHOLDERS, INCLUDING HOLDERS WHO HAD PREVIOUSLY CONVERTED THEIR DEBENTURES. The conversion of some or all of the debentures will dilute the ownership interests of existing stockholders. Any sales in the public market of the common stock issuable upon such conversion could adversely affect prevailing market prices of our common stock. WE MAY ISSUE ADDITIONAL SHARES OF COMMON STOCK AND THEREBY MATERIALLY AND ADVERSELY AFFECT THE PRICE OF OUR COMMON STOCK. We are not restricted from issuing additional common stock during the life of the debentures and have no obligation to consider the interests of the holders of the debentures for any reason. If we issue additional shares 7 of common stock, it may materially and adversely affect the price of our common stock and, in turn, the price of the debentures. THE CONVERSION RATE OF THE DEBENTURES WILL NOT BE ADJUSTED FOR ALL DILUTIVE EVENTS. The conversion rate of the debentures is subject to adjustment for certain events, including but not limited to the issuance of stock dividends on our common stock, the issuance of rights or warrants, subdivisions, combinations, distributions of capital stock, indebtedness or assets, certain cash dividends and certain issuer tender or exchange offers as described under "Description of the Debentures -- Conversion Rights -- Conversion Rate Adjustments." The conversion rate will not be adjusted for other events, such as a third party tender or exchange offer or an issuance of common stock for cash, that may adversely affect the trading price of the debentures or the common stock. There can be no assurance that an event that adversely affects the value of the debentures, but does not result in an adjustment to the conversion rate, will not occur. WE MAY ISSUE PREFERRED STOCK WHOSE TERMS COULD ADVERSELY AFFECT THE VOTING POWER OR VALUE OF OUR COMMON STOCK. Our Restated Certificate of Incorporation authorizes us to issue, without the approval of our stockholders, one or more classes or series of preferred stock having such preferences, powers and relative, participating, optional and other rights, including preferences over our common stock respecting dividends and distributions, as our board of directors may determine. The terms of one or more classes or series of preferred stock could adversely impact the voting power or value of our common stock which the debentures are convertible into thereby adversely affecting the value of the debentures. For example, we might afford holders of preferred stock the right to elect some number of our directors in all events or on the happening of specified events or the right to veto specified transactions. Similarly, the repurchase or redemption rights or liquidation preferences we might assign to holders of preferred stock could affect the residual value of our common stock which the debentures are convertible into, thereby adversely affecting the value of the debentures. USE OF PROCEEDS We will not receive any proceeds from the sale by the selling securityholders of the debentures or the shares of common stock issuable upon conversion of the debentures offered by this prospectus. 8 PRICE RANGE OF COMMON STOCK Our common stock trades on the New York Stock Exchange, or NYSE, under the symbol "WYE." The following table sets forth on a per share basis the high and low intra-day sale prices on the NYSE for our common stock for the periods indicated.
COMMON STOCK PRICE ------------- HIGH LOW ----- ----- YEAR ENDED 2002: First Quarter............................................... 66.51 60.48 Second Quarter.............................................. 66.49 49.00 Third Quarter............................................... 52.24 28.25 Fourth Quarter.............................................. 39.39 31.25 YEAR ENDED 2003: First Quarter............................................... 40.00 32.75 Second Quarter.............................................. 49.95 34.46 Third Quarter............................................... 49.29 41.32 Fourth Quarter.............................................. 48.32 36.81 YEAR ENDING 2004: First Quarter (through February 2, 2004).................... 44.70 39.51
The reported last sale price of our common stock on February 2, 2004 on the NYSE was $41.16 per share. As of November 28, 2003, there were approximately 58,305 holders of record of our common stock. DIVIDEND POLICY We have paid cash dividends on our common stock without interruption since 1950. We paid a quarterly dividend of $0.23 per share in each of 2001, 2002 and 2003. On January 27, 2004, we announced a quarterly cash dividend on our common stock of $0.23 per share, payable on March 1, 2004 to shareholders of record on February 13, 2004. Future dividends will be declared at the discretion of our board of directors and will depend upon our future earnings, financial condition and other factors affecting dividend policy. RATIO OF EARNINGS TO FIXED CHARGES The following table shows our consolidated ratio of earnings to fixed charges for each of the five most recent fiscal years ended on December 31 and for the nine months ended September 30, 2002 and September 30, 2003.
NINE MONTHS ENDED FISCAL YEAR ENDED DECEMBER 31, SEPTEMBER 30, ------------------------------------ -------------- 1998 1999 2000 2001 2002 2002 2003 ---- ---- ---- ---- ---- ----- ----- Ratio of earnings to fixed charges.......................... 9.3 * * 7.2 15.0 12.9 8.7
- --------------- * The results of operations for the years ended December 31, 1999 and 2000 were inadequate to cover total fixed charges as defined. The coverage deficiencies for the years ended December 31, 1999 and 2000 were $1,892,692,000 and $1,171,633,000, respectively. For the purposes of the table above, earnings are defined as income (loss) from continuing operations before income taxes, less equity earnings and capitalized interest, plus fixed charges, distributed income of equity investees, minority interests and amortization of capitalized interest. Fixed charges include interest expense on all debt, amortization of deferred debt issuance costs, capitalized interest and the portion of rental expense on operating leases attributable to interest. 9 SELECTED FINANCIAL DATA The following table presents selected financial data of Wyeth and its subsidiaries for the periods specified.
NINE MONTHS ENDED FISCAL YEARS ENDED DECEMBER 31, SEPTEMBER 30, ------------------------------------------------------------------- ------------------------- 1998 1999 2000 2001 2002 2002 2003 ----------- ----------- ----------- ----------- ----------- ----------- ----------- ($ IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) SUMMARY OF NET REVENUE AND EARNINGS Net revenue(1)(2).......... $11,101,100 $11,695,061 $13,081,334 $13,983,745 $14,584,035 $10,770,041 $11,517,222 Income (loss) from continuing operations(2)(3)(5)...... 2,152,344 (1,207,243) (901,040) 2,285,294 4,447,205 2,873,178 1,715,929 Diluted earnings (loss) per share from continuing operations(2)(3)(4)...... 1.61 (0.92) (0.69) 1.72 3.33 2.15 1.29 Dividends per common share.................... 0.87 0.905 0.92 0.92 0.92 0.69 0.69 FINANCIAL POSITION Current assets(2)(7)....... $10,698,188 $12,384,778 $10,180,811 $ 9,766,753 $11,595,852 $13,934,817 $12,172,005 Current liabilities(2)(5)........ 3,478,119 6,480,383 9,742,059 7,257,181 5,475,659 8,327,616 7,567,970 Ratio of current assets to current liabilities(2)(5)(7)..... 3.08 1.91 1.05 1.35 2.12 1.67 1.61 Total assets(2)(7)......... $20,224,231 $23,123,756 $21,092,466 $22,967,922 $25,994,949 $27,628,134 $28,241,381 Long-term debt(2)(6)....... 3,839,402 3,606,423 2,394,790 7,357,277 7,546,041 7,557,786 6,629,285 Average stockholders' equity(5)................ 8,895,024 7,914,772 4,516,420 3,445,333 6,114,243 -- -- STOCKHOLDERS -- OUTSTANDING SHARES Number of common stockholders............. 65,124 62,482 58,355 64,698 61,668 -- -- Weighted average common shares outstanding used for diluted earnings per share calculation (in thousands)(4)............ 1,336,641 1,308,876 1,306,474 1,330,809 1,334,127 1,335,298 1,335,315 EMPLOYMENT DATA(2) Number of employees at year end...................... 47,446 46,815 48,036 52,289 52,762 -- -- Wages and salaries......... $ 2,175,517 $ 2,032,431 $ 2,264,258 $ 2,536,220 $ 2,792,379 -- -- Benefits (including social security taxes).......... 577,930 593,222 602,816 691,018 842,177 -- --
- --------------- (1) We adopted new authoritative accounting guidance as of January 1, 2002 reflecting the cost of certain vendor considerations (i.e., cooperative advertising payments) as reductions of revenues instead of selling and marketing expenses. Net revenue for all prior periods presented has been reclassified to comply with the income statement classification requirements of the new guidelines. (2) As a result of the sale of the Cyanamid Agricultural Products business on June 30, 2000, amounts for the years 1998 and 1999 were restated to reflect this business as a discontinued operation with the net assets of the discontinued business held for sale related to the Cyanamid Agricultural Products business included in current assets. (3) See "Management's Discussion and Analysis of Financial Condition and Results of Operations" contained in our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q incorporated by reference into this prospectus for discussion of gains related to Immunex/Amgen common stock transactions, termination fee, litigation charges, goodwill impairment and special charges for nine months ended September 30, 2003 and 2002, and the years ended December 31, 2002, 2001 and 2000. 10 (4) The weighted average common shares outstanding for diluted loss per share for 2000 and 1999 did not include common stock equivalents, as the effect would have been antidilutive. (5) As a result of the charges of $2,000,000, $1,400,000, $950,000, $7,500,000 and $4,750,000 in 2003, 2002, 2001, 2000 and 1999, respectively, related to the litigation brought against us regarding the use of the diet drugs REDUX or PONDIMIN, current liabilities increased substantially in 2000 and 1999 compared to the prior year, and the ratio of current assets to current liabilities and average stockholders' equity decreased substantially in 2000 and 1999 compared to the prior year. (6) In the 2001 first quarter, we obtained a new $3,000,000 credit facility to support increased commercial paper borrowings and issued $3,000,000 of senior notes. In the 2003 first quarter, the $3,000,000 credit facility terminated and we entered into new credit facilities totaling $2,700,000. Also, in the 2003 first quarter, we issued $1,800,000 of senior notes. The proceeds from these borrowings have been used for our general corporate and working capital requirements, including payments related to the REDUX and PONDIMIN diet drug litigation. (7) On July 15, 2002, upon completion of Amgen Inc.'s acquisition of Immunex, we received 98,286,358 shares of Amgen common stock in exchange for the 223,378,088 shares of Immunex common stock we held as of July 15, 2002. At September 30, 2002, we classified a portion of our investment that could be sold during the next year as available-for-sale securities within current assets. The value of these 80,000,000 shares was $3,336,000 as of September 30, 2002. The remaining 18,286,358 shares were valued at $412,700 as of September 30, 2002, and were recorded in other assets including deferred taxes because such shares were then restricted from being sold within the next year. In the 2002 fourth quarter, we obtained the consent of Amgen to remove this restriction; as such, we sold 67,050,400 shares during the 2002 fourth quarter. As of December 31, 2002, the remaining 31,235,958 shares were valued at $1,509,947. We completed the sales of our remaining shares in the 2003 first quarter. 11 DESCRIPTION OF THE DEBENTURES The following description of the debentures is only a summary and is not intended to be comprehensive. For purposes of this "Description of the Debentures," the terms "Wyeth," "we," "our," "ours" and "us" refer only to Wyeth and not to any of our subsidiaries. GENERAL We issued the debentures on December 16, 2003 under a supplement to an indenture dated as of April 10, 1992, as amended on October 13, 1992, between the Company and JPMorgan Chase Bank, as trustee. Copies of the supplement and the indenture, which we collectively refer to as the indenture, have been filed as exhibits to the shelf registration statement, of which this prospectus is a part. The debentures are limited to $1,020.0 million in aggregate principal amount. The debentures were issued in registered form without coupons only in denominations of $1,000 principal amount and integral multiples of $1,000. We use the term "debenture" in this prospectus to refer to each $1,000 principal amount of debentures. The debentures mature on January 15, 2024. The debentures bear interest at an annual rate equal to 6-month LIBOR, reset semiannually, minus 0.50% (but never less than 0%) on the principal amount from December 16, 2003, or from the most recent date to which interest has been paid or provided for. The interest rate for the initial interest period, which commenced on December 16, 2003 and ends on July 14, 2004, will be 0.73625% per annum. Interest will be payable semiannually in arrears on January 15 and July 15 of each year, each an interest payment date, beginning July 15, 2004, to the person in whose name a debenture is registered at the close of business on the January 1 or July 1, as the case may be, immediately preceding the relevant interest payment date, each of which we refer to as a record date. Interest on the debentures will be calculated on the basis of a 360-day year using the actual number of days elapsed during an interest period. If any date on which interest is payable is not a business day, other than the interest payment date that is the date of maturity, a redemption date or a purchase date, we will pay interest on the next business day (without any interest or other payment due on the delay), except that if such next business day is in a different month, then that interest payment date will be the immediately preceding day that is a business day. If the maturity date or any redemption date or purchase date (including upon the occurrence of a Fundamental Change, as described below) for the debentures falls on a day that is not a business day, we will pay the interest and principal payable on the next business day (without any interest or other payment due on the delay). The term "business day," when used with respect to any place of payment for the debentures or the determination of LIBOR reset date as described below under "6-month LIBOR", means a day other than a Saturday or a Sunday, a legal holiday or a day on which banking institutions or trust companies in that place of payment are authorized or obligated by law to close; provided that such day is also a London banking day as defined below. In addition, we will pay additional interest on the debentures under the circumstances described below under "Registration Rights." Interest payments on the debentures will include accrued interest from and including the date of issue or from and including the last date in respect of which interest has been paid, as the case may be, to, but excluding, the interest payment date or the date of maturity, as the case may be. Holders may present debentures for conversion at the office of the conversion agent and may present debentures for exchange or for registration of transfer at the office or agency maintained by us for that purpose in the Borough of Manhattan, The City of New York. We will not charge a service charge for any exchange or registration of transfer of debentures. However, we may require payment of a sum sufficient to cover any tax or other governmental charge payable for the registration of transfer or exchange. The trustee serves as the initial conversion agent, paying agent and registrar for the debentures. At any time, we may designate additional paying agents. However, at all times we will be required to maintain a paying agent for the debentures in the Borough of Manhattan, The City of New York. 12 Any monies deposited with the trustee or any paying agent or then held by us in trust for the payment of principal and interest (including additional interest, if any) on the debentures that remain unclaimed for two years after the date the payments became due and payable, shall, at our request, be repaid to us or released from trust, as applicable, and the holders of the debentures shall thereafter look, as a general unsecured creditor, only to us for payment thereof. 6-MONTH LIBOR The annual rate of interest payable on the debentures will be reset on each interest payment date, which we also refer to as a LIBOR reset date. If any LIBOR reset date would otherwise be a day that is not a business day, that LIBOR reset date will be postponed to the next succeeding business day, unless that business day falls in the next succeeding calendar month, in which case that LIBOR reset date will be the immediately preceding business day. We will determine 6-month LIBOR on the second London banking day preceding the related LIBOR reset date, which we refer to as the LIBOR determination date. "6-month LIBOR" means: (a) the rate for six-month deposits in United States dollars commencing on the related LIBOR reset date, that appears on the Moneyline Telerate Page 3750 as of 11:00 AM, London time, on the LIBOR determination date, (b) if no rate appears on the particular LIBOR determination date on the Moneyline Telerate Page 3750, the rate calculated by us as the arithmetic mean of at least two offered quotations obtained by us after requesting the principal London offices of each of four major reference banks in the London interbank market to provide us with its offered quotation for deposits in United States dollars for the period of six months, commencing on the related LIBOR reset date, to prime banks in the London interbank market at approximately 11:00 AM, London time, on that LIBOR determination date and in a principal amount that is representative for a single transaction in United States dollars in that market at that time, (c) if fewer than two offered quotations referred to in clause (b) are provided as requested, the rate calculated by us as the arithmetic mean of the rates quoted at approximately 11:00 AM, New York time, on the particular LIBOR determination date by three major banks in The City of New York selected by us for loans in United States dollars to leading European banks for a period of six months, commencing on the related LIBOR reset date, and in a principal amount that is representative for a single transaction in United States dollars in that market at that time or (d) if the banks so selected by us are not quoting as mentioned in clause (c), 6-month LIBOR in effect on the preceding LIBOR determination date. "Moneyline Telerate Page 3750" means the display on Moneyline Telerate (or any successor service) on such page (or any other page as may replace such page on such service) for the purpose of displaying the London interbank rates of major banks for United States dollars. "London banking day" means a day on which commercial banks are open for business, including dealings in United States dollars in London. RANKING The debentures are our direct, unsecured and unsubordinated obligations. The debentures rank equally in right of payment with all of our other existing and future unsecured and unsubordinated indebtedness. In addition, the debentures effectively rank junior to any secured indebtedness that we may incur to the extent of the assets securing such indebtedness. We currently conduct substantially all of our operations through Wyeth. However, to the extent we conduct operations, now or in the future, through subsidiaries, creditors of those subsidiaries, including trade creditors and secured creditors, will generally have claims to the assets of our subsidiaries that are superior to the claims of our creditors, including holders of the debentures. 13 CONVERSION RIGHTS Subject to the conditions and during the periods and under the circumstances described below, holders may convert their debentures into shares of our common stock initially at a conversion rate of 16.559 shares of common stock per debenture at any time by giving notice on the business day prior to the close of business on January 15, 2024. The conversion price as of any date of determination is a dollar amount (initially $60.39 per share of common stock) derived by dividing the principal amount of a $1,000 principal amount debenture by the conversion rate in effect on such date. The conversion rate and the equivalent conversion price in effect at any given time are referred to as the "applicable conversion rate" and the "applicable conversion price," respectively, and are subject to adjustment as described below. A holder may convert fewer than all of such holder's debentures so long as the debentures converted are an integral multiple of $1,000 principal amount. Upon conversion, we may choose to deliver, in lieu of shares of our common stock, cash or a combination of cash and shares of our common stock, as described below. Except as otherwise described below, you will not receive any cash payment representing accrued and unpaid interest, including additional interest, upon conversion of a debenture and we will not adjust the conversion rate to account for the accrued and unpaid interest, including additional interest. Upon conversion we will deliver to you shares of our common stock or cash in lieu thereof, or a combination of the foregoing, and any cash payment to account for fractional shares ("conversion payment"), as described below. The cash payment for fractional shares will be based on the last reported sale price of our common stock on the trading day immediately prior to the conversion settlement date. Delivery of the conversion payment will be deemed to satisfy in full our obligation to pay any accrued and unpaid interest on a debenture, and no portion of any such accrued and unpaid interest will be canceled, extinguished or forfeited. The fair market value of the conversion payment will be treated as a payment, to the extent thereof, first, in exchange for any such accrued and unpaid interest and second, in exchange for the principal amount of the debenture. If a holder converts debentures, we will pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of our common stock upon the conversion, unless the tax is due because the holder requests the shares to be issued or delivered to a person other than the holder, in which case the holder will pay that tax. To convert your debenture you must do the following: - complete and manually sign the notice of conversion on the back of the debenture or facsimile of the notice of conversion and deliver this notice to the conversion agent, - surrender the debenture to the conversion agent, - if required by the conversion agent, furnish appropriate endorsements and transfer documents - if required, pay all transfer or similar taxes and - if required, pay funds equal to interest payable on the next interest payment date. If your interest is a beneficial interest in a global debenture, to convert you must comply with the last two requirements listed above and comply with DTC's procedures for converting a beneficial interest in a global debenture. The conversion date will be the date on which all of the foregoing requirements have been satisfied. The debentures will be deemed to have been converted, and you will be deemed a record holder of any shares of common stock deliverable upon conversion, immediately prior to the close of business on the conversion date. A certificate for the number of full shares of our common stock into which any debentures are converted, or cash in lieu thereof, or a combination of the foregoing, together with any cash payment for fractional shares, will be delivered through the conversion agent set forth below under "-- Payment Upon Conversion." If a holder has already delivered a purchase notice as described under either "-- Purchase of Debentures by Us at the Option of the Holder" or "-- Fundamental Change Requires Purchase of Debentures by Us at the Option of the Holder" with respect to a debenture, however, the holder may not surrender that debenture for conversion until the holder has withdrawn the purchase notice in accordance with the indenture, and if your interest is a beneficial interest in a global debenture, the holder has complied with DTC's procedures. 14 Holders of debentures at the close of business on a record date will receive payment of interest, payable on the corresponding interest payment date, notwithstanding the conversion of such debentures at any time after the close of business on such record date. Debentures surrendered for conversion by a holder during the period from the close of business on any record date to the opening of business on the immediately following interest payment date must be accompanied by payment of an amount equal to the interest that the holder is to receive on the debentures; provided, however, that no such payment need be made if (1) we have specified a redemption date that is after a record date and on or prior to the immediately following interest payment date, (2) we have specified a purchase date following a Fundamental Change that is during such period or (3) any overdue interest exists at the time of conversion with respect to such debentures, to the extent of such overdue interest. PAYMENT UPON CONVERSION Conversion on or Prior to the Final Notice Date. In the event that we receive your notice of conversion on or prior to the day that is 20 days prior to maturity or, with respect to debentures we have called for redemption, on or prior to the date that is 20 days prior to the applicable redemption date (the "final notice date"), the following procedures will apply: If we choose to satisfy all or any portion of our obligation (the "conversion obligation") in cash, we will notify you through the trustee of the dollar amount to be satisfied in cash (which must be expressed either as 100% of the conversion obligation or as a fixed dollar amount) at any time on or before the date that is two business days following receipt of your notice of conversion ("cash settlement notice period"). If we timely elect to pay cash for any portion of the shares otherwise issuable to you, you may retract the conversion notice at any time during the two business day period beginning on the day after the final day of the cash settlement notice period ("conversion retraction period"); no such retraction can be made (and a conversion notice shall be irrevocable) if we do not elect to deliver cash in lieu of shares (other than cash in lieu of fractional shares). If the conversion notice has not been retracted, then settlement (in cash and/or shares) will occur on the business day following the final day of the 10 trading day period beginning on the day after the final day of the conversion retraction period (the "cash settlement averaging period"). If we choose to satisfy the entire conversion obligation in shares, then settlement will occur on the conversion date. Settlement amounts will be computed as follows: - If we elect to satisfy the entire conversion obligation in shares, we will deliver to you a number of shares equal to (1) the aggregate principal amount of debentures to be converted divided by 1,000 multiplied by (2) the applicable conversion rate. - If we elect to satisfy the entire conversion obligation in cash, we will deliver to you cash in an amount equal to the product of: - a number equal to (1) the aggregate principal amount of debentures to be converted divided by 1,000 multiplied by (2) the conversion rate and - the average of the last reported sale prices of our common stock during the cash settlement averaging period. - If we elect to satisfy a fixed portion (other than 100%) of the conversion obligation in cash, we will deliver to you such cash amount ("cash amount") and a number of shares, for each $1,000 principal amount of debenture, equal to the applicable conversion rate, minus the number of shares equal to the cash amount divided by the average of the last reported sale prices of our common stock during the cash settlement averaging period; provided, however, that the number of shares will not be less than zero. Conversion After the Final Notice Date. In the event that we receive your notice of conversion after the final notice date, we will not send individual notices of our election to satisfy all or any portion of the conversion obligation in cash. Instead, if we choose to satisfy all or any portion of the conversion obligation in 15 cash, we will send a single notice to the trustee of the dollar amount to be satisfied in cash (which must be expressed either as 100% of the conversion obligation or as a fixed dollar amount) at any time on or before the final notice date. Settlement amounts will be computed and settlement dates will be determined in the same manner as set forth above under "-- Conversion on or Prior to the Final Notice Date" except that the "cash settlement averaging period" shall be the 10 trading day period beginning on the day after receipt of your notice of conversion (or in the event we receive your notice of conversion on the business day prior to the maturity date, the 10 trading day period beginning on the day after the maturity date). Settlement will occur on the business day following the final day of such cash settlement averaging period. If we do not elect to satisfy all or any portion of the conversion obligation in cash, settlement will occur on the conversion date. Conversion After Irrevocable Election to Pay Principal in Cash. At any time prior to maturity, we may irrevocably elect in our sole discretion without the consent of the holders of the debentures, by notice to the trustee and the holders of the debentures to satisfy in cash 100% of the principal amount of the debentures converted after the date of such election. After making such an election, we still may satisfy our conversion obligation to the extent it exceeds the principal amount in cash or common stock or a combination of cash and common stock. If we choose to satisfy all or a portion of the remainder of our conversion obligation in cash, we will provide notice of our election in the same manner as set forth above under either "-- Conversion on or Prior to the Final Notice Date" or "-- Conversion After to the Final Notice Date," whichever is applicable. Settlement amounts will be computed and settlement dates will be determined in the same manner as set forth above under "-- Conversion on or Prior to the Final Notice Date" and "-- Conversion After the Final Notice Date," as applicable. If we choose to satisfy all of the remainder of our conversion obligation in common stock, your notice of conversion will not be retractable as set forth above under "-- Conversion on or Prior to the Final Notice Date" and "-- Conversion After the Final Notice Date." "Trading day" means a day during which trading in securities generally occurs on the New York Stock Exchange or, if our common stock is not listed on the New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which our common stock is then listed or, if our common stock is not listed on a U.S. national or regional securities exchange, on the Nasdaq National Market or, if our common stock is not reported by the Nasdaq National Market, on the principal other market on which our common stock is then traded. The "last reported sale price" of our common stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and asked prices or, if more than one in either case, the average of the average bid and the average asked prices) on that date as reported in composite transactions for the principal U.S. securities exchange on which our common stock is traded or, if our common stock is not listed on a U.S. national or regional securities exchange, as reported by the Nasdaq National Market. If our common stock is not listed for trading on a U.S. national or regional securities exchange and not reported by the Nasdaq Market on the relevant date, the "last reported sale price" will be the last quoted bid price for our common stock in the over-the-counter market on the relevant date as reported by the National Quotation Bureau or similar organization. If our common stock is not so quoted, the "last reported sale price" will be the average of the mid-point of the last bid and asked prices for our common stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by us for this purpose. CONDITIONS TO CONVERSION Holders may surrender their debentures for conversion into shares of our common stock prior to stated maturity only under the circumstances described below. For a discussion of the federal income tax consequences of a conversion of the debentures into our common stock, see "Certain U.S. Federal Income Tax Consequences." Conversion Upon Satisfaction of Sale Price Condition. A holder may surrender any of its debentures for conversion into shares of our common stock: - in any calendar quarter commencing after March 31, 2004 and prior to December 31, 2022 (and only during such calendar quarter) if the last reported sale price of our common stock for at least 20 trading days during the period of 30 consecutive trading days ending on the last trading day of the previous 16 calendar quarter is greater than or equal to 130% of the applicable conversion price as of the last day of such previous calendar quarter (initially 130% of $60.39, or $78.51, which we refer to as the conversion trigger price) and - at any time after December 31, 2022 and prior to maturity, if the last reported sale price of our common stock is greater than or equal to the conversion trigger price on any day after December 31, 2022. Conversion Upon Redemption. If we elect to redeem the debentures, holders may convert debentures into our common stock at any time after we call the debenture for redemption and prior to the close of business on the business day immediately preceding the redemption date, even if the debentures are not otherwise convertible at such time. Conversion Upon Specified Corporate Transactions. If we elect to: - distribute to all holders of our common stock certain rights or warrants entitling them to purchase, for a period expiring within 45 days after the date of the distribution, shares of our common stock at less than the last reported sale price of a share of our common stock on the trading day immediately preceding the declaration date of the distribution or - distribute to all holders of our common stock our assets, debt securities or certain rights to purchase our securities, which distribution has a per share value as determined by our board of directors exceeding 10% of the last reported sale price of a share of our common stock on the trading day immediately preceding the declaration date for such distribution, we must notify the holders of the debentures at least 20 business days prior to the ex-dividend time for such distribution. Once we have given such notice, holders may surrender their debentures for conversion at any time until the earlier of the close of business on the business day immediately prior to the ex-dividend time or our announcement that such distribution will not take place, even if the debentures are not otherwise convertible at such time; provided, however, that a holder may not exercise this right to convert if the holder may participate in the distribution without conversion. The "ex-dividend time" is the first date upon which a sale of the common stock does not automatically transfer the right to receive the relevant dividend from the seller of the common stock to its buyer. In addition, if we are party to a consolidation, merger or binding share exchange pursuant to which our common stock would be converted into cash, securities or other property, a holder may surrender debentures for conversion at any time from and after the date which is 15 days prior to the anticipated effective date of the transaction until 15 days after the actual effective date of such transaction (or if such transaction constitutes a Fundamental Change, until the applicable Fundamental Change purchase date) even if the debentures are not otherwise convertible at such time. If we engage in certain reclassifications of our common stock or are a party to a consolidation, merger, binding share exchange or transfer of all or substantially all of our assets pursuant to which our common stock is converted into cash, securities or other property, then at the effective time of the transaction, the right to convert a debenture into our common stock will be changed into a right to convert a debenture into the kind and amount of cash, securities or other property that the holder would have received if the holder had converted its debentures immediately prior to the transaction. If the transaction also constitutes a Fundamental Change, as defined below, a holder can require us to purchase all or a portion of its debentures as described below under "-- Fundamental Change Requires Purchase of Debentures by Us at the Option of the Holder." Conversion Upon Credit Ratings Event. A holder may convert debentures into our common stock during any period in which the credit rating assigned to the debentures by either Moody's or S&P is lower than Baa3 or BBB-, respectively, or the debentures are no longer rated by at least one of S&P or Moody's. 17 CONVERSION RATE ADJUSTMENTS The conversion rate will be subject to adjustment, without duplication, upon the occurrence of any of the following events: (1) the payment of dividends and other distributions on our common stock payable exclusively in shares of our common stock, (2) the issuance to all holders of our common stock of rights or warrants that allow the holders to purchase shares of our common stock for a period expiring within 45 days from the date of issuance of the rights or warrants at less than the market price on the record date for the determination of shareholders entitled to receive the rights or warrants, (3) subdivisions or combinations of our common stock, (4) distributions to all holders of our common stock of our assets, debt securities, shares of our capital stock or rights or warrants to purchase our securities (excluding (A) any dividend, distribution or issuance covered by clause (1) or (2) above and (B) any dividend or distribution paid exclusively in cash), in which event the conversion rate will be adjusted by multiplying: - the conversion rate by - a fraction, the numerator of which is the current market price of our common stock and the denominator of which is the current market price of our common stock minus the fair market value, as determined by our board of directors, except as described in the following paragraph, of the portion of those assets, debt securities, shares of capital stock or rights or warrants so distributed applicable to one share of common stock. In the event that we make a distribution to all holders of our common stock consisting of capital stock of, or similar equity interests in, a subsidiary or other business unit of ours, the conversion rate will be adjusted based on the market value of the securities so distributed relative to the market value of our common stock, in each case based on the average of the last reported sales prices of those securities for each of the 10 trading days commencing on and including the fifth trading day after the date on which "ex-distribution trading" commences for such dividend or distribution on the New York Stock Exchange or such other national or regional exchange or market on which the securities are then listed or quoted. (5) distributions by us consisting exclusively of cash to all holders of our common stock, excluding any cash dividend on our common stock to the extent that the aggregate cash dividend per share of our common stock (i) in any quarter does not exceed $0.23 and (ii) in any calendar year does not exceed $0.92 (each such number, the "dividend threshold amount") (the dividend threshold amount is subject to adjustment on an inversely proportional basis whenever the conversion rate is adjusted, provided that no adjustment will be made to the dividend threshold amount for any adjustment made to the conversion rate pursuant to this clause (5)), in which event the conversion rate will be adjusted by multiplying: - the conversion rate by - a fraction, the numerator of which will be the current market price of our common stock and the denominator of which will be the current market price of our common stock minus the amount per share of such dividend increase (as determined below) or distribution. If an adjustment is required to be made under this clause (5) as a result of a distribution that is a quarterly or annual dividend, the adjustment would be based, without duplication, upon the amount by which the distribution exceeds the dividend threshold amount (the dividend increase). If an adjustment is required to be made under this clause (5) as a result of a distribution that is not a quarterly or annual dividend, the adjustment would be based upon the full amount of the distribution. (6) a payment by us or one of our subsidiaries in respect of a tender offer or exchange offer for our common stock (other than offers not subject to Rule 13e-4 under the Exchange Act) to the extent that the cash and value of any other consideration included in the payment per share of our common stock 18 exceeds the last reported sale price of our common stock on the trading day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, in which event the conversion rate will be adjusted by multiplying: - the conversion rate by - a fraction, the numerator of which will be the sum of (x) the fair market value, as determined by our board of directors, of the aggregate consideration payable for all shares of our common stock we purchase in such tender or exchange offer and (y) the product of the number of shares of our common stock outstanding less any such purchased shares and the last reported sale price of our common stock on the trading day next succeeding the expiration of the tender or exchange offer and the denominator of which will be the product of the number of shares of our common stock outstanding, including any such purchased shares, and the last reported sale price of our common stock on the trading day next succeeding the expiration of the tender or exchange offer. To the extent that we have a rights plan in effect upon conversion of the debentures into common stock, the holder will receive (except to the extent we settle our conversion obligation in cash), in addition to the common stock, the rights under the rights plan unless the rights have separated from the common stock prior to the time of conversion, in which case the conversion rate will be adjusted at the time of separation as if we distributed to all holders of our common stock our assets, debt securities, shares of our capital stock or rights or warrants to purchase our securities as described in clause (4) above. In addition to these adjustments, we may increase the conversion rate as our board of directors considers advisable to avoid or diminish any income tax to holders of our common stock or rights to purchase our common stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. We may also, from time to time, to the extent permitted by applicable law, increase the conversion rate by any amount for any period of at least 20 business days if our board of directors has determined that such increase would be in our best interests. If our board of directors makes such a determination, it will be conclusive. We will give holders of debentures at least 15 days notice of such an increase in the conversion rate. As used in this prospectus, "current market price" means the average of the last reported sale prices per share of our common stock for the 20 trading day period ending on the applicable date of determination (if the applicable date of determination is a trading day or, if not, then on the last trading day prior to the applicable date of determination), appropriately adjusted to take into account the occurrence, during the period commencing on the first of the trading days during the 20 trading day period and ending on the applicable date of determination, of any event that would result in an adjustment of the conversion rate under the indenture. The applicable conversion rate will not be adjusted: - upon the issuance of any shares of our common stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on our securities and the investment of additional optional amounts in shares of our common stock under any plan, - upon the issuance of any shares of our common stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by us or any of our subsidiaries, - upon the issuance of any shares of our common stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in the preceding bullet and outstanding as of the date the debentures were first issued, - for a change in the par value of the common stock or - for accrued and unpaid interest, including additional interest, if any. Adjustments to the applicable conversation rate will be calculated to the nearest 1/10,000th of a share. No adjustment in the applicable conversion rate will be required unless the adjustment would require an increase or decrease of at least 0.50% of the applicable conversion rate. If the adjustment is not made because 19 the adjustment does not change the applicable conversion rate by more than 0.50%, then the adjustment that is not made will be carried forward and taken into account in any future adjustment. In the event of: - a taxable distribution to holders of shares of common stock which results in an adjustment of the conversion rate or - an increase in the conversion rate at our discretion, the holders of the debentures may, in certain circumstances, be deemed to have received a distribution subject to U.S. federal income tax as a dividend. In addition, non-U.S. holders of debentures in certain circumstances may be deemed to have received a distribution subject to U.S. federal withholding tax requirements. See "Certain U.S. Federal Income Tax Consequences -- Consequences to U.S. Holders -- Constructive Distributions" and "-- Consequences to Non-U.S. Holders -- Dividends and Constructive Dividends." OPTIONAL REDEMPTION No sinking fund is provided for the debentures. Prior to July 20, 2009, the debentures are not redeemable. On or after July 20, 2009, we may redeem for cash all or part of the debentures at any time, upon not less than 20 nor more than 60 days notice before the redemption date by mail to the trustee, the paying agent and each holder of debentures, for a price equal to 100% of the principal amount of the debentures to be redeemed plus any accrued and unpaid interest, including additional interest, if any, to the redemption date. If we decide to redeem fewer than all of the outstanding debentures, the trustee will select the debentures to be redeemed (in principal amounts of $1,000 or integral multiples thereof) by lot, on a pro rata basis or by another method the trustee considers fair and appropriate. If the trustee selects a portion of your debenture for partial redemption and you convert a portion of the same debenture, the converted portion will be deemed to be from the portion selected for redemption. In the event of any redemption in part, we will not be required to issue, register the transfer of or exchange any debenture during a period of 15 days before the mailing of the redemption notice. PURCHASE OF DEBENTURES BY US AT THE OPTION OF THE HOLDER Holders have the right to require us to purchase all or a portion of the debentures on July 15, 2009, January 15, 2014 and January 15, 2019 (each, a "purchase date"). Any debentures purchased by us on a purchase date will be paid for in cash. We will be required to purchase any outstanding debentures for which a holder delivers a written purchase notice to the paying agent. This notice must be delivered during the period beginning at any time from the opening of business on the date that is 20 business days prior to the relevant purchase date until the close of business on the business day prior to the purchase date. If the purchase notice is given and withdrawn during such period, we will not be obligated to purchase the related debentures. Our purchase obligation will be subject to some additional conditions as described in the indenture. Also, as described in the "Risk Factors" section of this prospectus under the caption "Risks Related to the Debentures -- We may not have the ability to raise the funds necessary to purchase the debentures upon a Fundamental Change or other purchase date, as required by the indenture governing the debentures," we may not have funds sufficient to purchase the debentures when we are required to do so. Our failure to purchase the debentures when we are required to do so will constitute an event of default under the indenture with respect to the debentures. If a holder has delivered a purchase notice as described herein with respect to a debenture, the holder may not surrender that debenture for conversion until the holder has withdrawn the purchase notice as set forth below. The purchase price payable will be equal to 100% of the principal amount of the debentures to be purchased plus any accrued and unpaid interest, including additional interest, if any, to such purchase date. For a discussion of the U.S. federal income tax treatment of a holder receiving cash, see "Certain U.S. Federal Income Tax Consequences." 20 On or before the 20th business day prior to each purchase date, we will provide to the trustee, the paying agent and to all holders of the debentures at their addresses shown in the register of the registrar, and to beneficial owners as required by applicable law, a notice stating, among other things: - the purchase price, - the name and address of the paying agent and the conversion agent, - the conversion rate and any adjustments to the conversion rate, - the debentures with respect to which a purchase notice has been given by the holder may be converted only if the holder withdraws the purchase notice in accordance with the terms of the indenture, and - the procedures that holders must follow to require us to purchase their debentures. In connection with providing such notice, we will issue a press release and publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the information on our web site or through such other public medium as we may use at that time. A notice electing to require us to purchase your debentures must state: - if certificated debentures have been issued, the certificate numbers of the debentures, - the portion of the principal amount of debentures to be purchased, in integral multiples of $1,000, and - that the debentures are to be purchased by us pursuant to the applicable provisions of the debentures and the indenture. If the debentures are not in certificated form, your notice must comply with appropriate DTC procedures. We may not purchase any debentures at the option of holders if the principal amount of the debentures has been accelerated, and such acceleration has not been rescinded. You may withdraw any purchase notice in whole or in part by a written notice of withdrawal delivered to the paying agent prior to the close of business on the business day prior to the purchase date. The notice of withdrawal must state: - the principal amount of the withdrawn debentures, - if certificated debentures have been issued, the certificate numbers of the withdrawn debentures, and - the principal amount, if any, that remains subject to the purchase notice. If the debentures are not in certificated form, your withdrawal notice must comply with appropriate DTC procedures. You must either effect book-entry transfer or deliver the debentures, together with necessary endorsements, to the office of the paying agent after delivery of the purchase notice to receive payment of the purchase price. You will receive payment promptly following the later of the purchase date and the time of book-entry transfer or the delivery of the debentures. If the paying agent holds money or securities sufficient to pay the purchase price of the debentures on the business day following the purchase date, then: - the debentures will cease to be outstanding and interest, including additional interest, will cease to accrue (whether or not book-entry transfer of the debentures is made or whether or not the debentures are delivered to) the paying agent, and - all other rights of the holder will terminate (other than the right to receive the purchase price upon delivery or transfer of the debentures). FUNDAMENTAL CHANGE REQUIRES PURCHASE OF DEBENTURES BY US AT THE OPTION OF THE HOLDER If a Fundamental Change (as defined below in this section) occurs at any time prior to maturity, holders will have the right, at their option, to require us to purchase any or all of their debentures for cash, or any 21 portion of the principal amount thereof, that is equal to $1,000 or an integral multiple of $1,000. The cash price we are required to pay is equal to the principal amount of the debentures to be purchased plus accrued and unpaid interest, including additional interest, if any, to but excluding the Fundamental Change purchase date, unless such Fundamental Change purchase date falls after a record date and on or prior to the corresponding interest payment date, in which case we will pay the full amount of accrued and unpaid interest payable on such interest payment date to the holder of record at the close of business on the corresponding record date. For a discussion of the U.S. federal income tax treatment of a holder receiving cash, see "Certain U.S. Federal Income Tax Consequences." If a holder has delivered a purchase notice as described herein with respect to a debenture, the holder may not surrender that debenture for conversion until the holder has withdrawn the purchase notice as set forth below. A "Fundamental Change" will be deemed to have occurred at any time after the debentures are originally issued that any of the following occurs: (1) our common stock or other common stock into which the debentures are convertible is neither listed for trading on a United States national securities exchange nor approved for trading on the Nasdaq National Market or another established automated over-the-counter trading market in the United States, (2) a "person" or "group" within the meaning of Section 13(d) of the Exchange Act other than us, our subsidiaries or our or their employee benefit plans, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect ultimate "beneficial owner," as defined in Rule 13d-3 under the Exchange Act, of our common equity representing more than 50% of the voting power of our common equity entitled to vote generally in the election of directors, (3) consummation of any share exchange, consolidation or merger of us pursuant to which our common stock will be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of us and our subsidiaries, taken as a whole, to any person other than us or one or more of our subsidiaries; provided, however, that a transaction where the holders of our common equity immediately prior to such transaction have directly or indirectly, more than 50% of the aggregate voting power of all classes of common equity of the continuing or surviving corporation or transferee entitled to vote generally in the election of directors immediately after such event shall not be a Fundamental Change or (4) continuing directors (as defined below in this section) cease to constitute at least a majority of our board of directors. A Fundamental Change will not be deemed to have occurred in respect of any of the foregoing, however, if either: (1) the last reported sale price of our common stock for any five trading days within the 10 consecutive trading days ending immediately before the later of the Fundamental Change or the public announcement thereof, equals or exceeds 105% of the applicable conversion price of the debentures in effect immediately before the Fundamental Change or the public announcement thereof, as the case may be, or (2) at least 90% of the consideration, excluding cash payments for fractional shares, in the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on a national securities exchange or quoted on the Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change (these securities being referred to as "publicly traded securities") and as a result of this transaction or transactions the debentures become convertible into such publicly traded securities, excluding cash payments for fractional shares. For purposes of the above paragraph the term capital stock of any person means any and all shares, interests, participations or other equivalents however designated of corporate stock or other equity participations, including partnership interests, whether general or limited, of such person and any rights (other than 22 debt securities convertible or exchangeable into an equity interest), warrants or options to acquire an equity interest in such person. "Continuing director" means a director who either was a member of our board of directors on the date that the debentures were originally issued or who becomes a member of our board of directors subsequent to that date and whose appointment, election (or re-election) or nomination (or re-nomination) for election by our stockholders is duly approved by a majority of the continuing directors on our board of directors at the time of such approval, either by a specific vote or by approval of the proxy statement issued by us on behalf of the board of directors in which such individual is named as nominee for director. On or before the 30th day after the occurrence of a Fundamental Change, we will provide to all holders of the debentures and the trustee and paying agent a notice of the occurrence of the Fundamental Change and of the resulting purchase right. Such notice shall state, among other things: - the events causing a Fundamental Change, - the date of the Fundamental Change, - the last date on which a holder may exercise the purchase right, - the Fundamental Change purchase price, - the Fundamental Change purchase date, - the name and address of the paying agent and the conversion agent, - the applicable conversion rate and any adjustments to the applicable conversion rate, - the debentures with respect to which a Fundamental Change purchase notice has been given by the holder may be converted only if the holder withdraws the Fundamental Change purchase notice in accordance with the terms of the indenture, and - the procedures that holders must follow to require us to purchase their debentures. In connection with providing such notice, we will issue a press release and publish a notice containing this information in a newspaper of general circulation in the City of New York or publish the information on our web site or through such other public media as we may use at the time. To exercise the purchase right, holders must deliver, before the close of business on the business day immediately preceding the Fundamental Change purchase date, the debentures to be purchased, duly endorsed for transfer, together with the form entitled "Form of Fundamental Change Purchase Notice" duly completed, to the paying agent. Their purchase notice must state: - if certificated, the certificate numbers of their debentures to be delivered for purchase, - the portion of the principal amount of debentures to be purchased, which must be $1,000 or an integral multiple thereof, and - that the debentures are to be purchased by us pursuant to the applicable provisions of the debentures and the indenture. If the debentures are not in certificated form, the purchase notice must comply with appropriate DTC procedures. Holders may withdraw any purchase notice (in whole or in part) by a written notice of withdrawal delivered to the paying agent prior to the close of business on the business day prior to the Fundamental Change purchase date. The notice of withdrawal shall state: - the principal amount of the withdrawn debentures, - if certificated debentures have been issued, the certificate numbers of the withdrawn debentures, and - the principal amount, if any, that remains subject to the purchase notice. 23 If the debentures are not in certificated form, the withdrawal notice must comply with appropriate DTC procedures. We will be required to purchase the debentures no less than 20 and no more than 35 business days after the date of our notice of the occurrence of the relevant Fundamental Change, subject to extension to comply with applicable law. You must either effect book-entry transfer or deliver the debentures, together with necessary endorsements, to the office of the paying agent after delivery of the purchase notice to receive payment of the purchase price. Holders will receive payment of the Fundamental Change purchase price promptly following the later of the Fundamental Change purchase date or the time of book-entry transfer or the delivery of the debentures. If the paying agent holds money or securities sufficient to pay the Fundamental Change purchase price of the debentures on the business day following the Fundamental Change purchase date, then: - the debentures will cease to be outstanding and interest, including additional interest, if any, will cease to accrue (whether or not book-entry transfer of the debentures is made or whether or not the debenture is delivered to the paying agent), and - all other rights of the holder will terminate (other than the right to receive the Fundamental Change purchase price upon delivery or transfer of the debentures). The rights of the holders to require us to purchase their debentures upon a Fundamental Change could discourage a potential acquirer of us. The Fundamental Change purchase feature, however, is not the result of management's knowledge of any specific effort to accumulate shares of our common stock, to obtain control of us by any means or part of a plan by management to adopt a series of anti-takeover provisions. Instead, the Fundamental Change purchase feature is a standard term contained in other offerings of debt securities similar to the debentures that have been marketed by certain of the initial purchasers. The terms of the Fundamental Change purchase feature resulted from negotiations between the initial purchasers and us. The term Fundamental Change is limited to specified transactions and may not include other events that might adversely affect our financial condition. In addition, the requirement that we offer to purchase the debentures upon a Fundamental Change may not protect holders in the event of a highly leveraged transaction, reorganization, merger or similar transaction involving us. No debentures may be purchased at the option of holders upon a Fundamental Change if the principal amount of the debentures has been accelerated, and such acceleration has not been rescinded. The definition of Fundamental Change includes a phrase relating to the conveyance, transfer, sale, lease or disposition of "all or substantially all" of the consolidated assets of us and our subsidiaries, taken as a whole. There is no precise, established definition of the phrase "substantially all" under applicable law. Accordingly, the ability of a holder of the debentures to require us to purchase its debentures as a result of the conveyance, transfer, sale, lease or other disposition of less than all of our assets may be uncertain. If a Fundamental Change were to occur, we may not have enough funds to pay the Fundamental Change purchase price or we may be prohibited from doing so under the terms of our then-existing indebtedness. See "Risk Factors" under the caption "Risks Related to the Debentures -- We may not have the ability to raise the funds necessary to purchase the debentures upon a Fundamental Change or other purchase date, as required by the indenture governing the debentures." Our failure to purchase the debentures when required following a Fundamental Change will constitute an event of default under the indenture with respect to the debentures. In addition, we have, and may in the future incur, other indebtedness with similar change in control provisions permitting holders to accelerate or to require us to purchase our indebtedness upon the occurrence of similar events or on some specific dates. RESTRICTIVE COVENANTS We will be subject to the following negative covenants with respect to the debentures only during the time when we are subject to these negative covenants with respect to the three tranches of senior notes issued on 24 the same day as the debentures. We refer to the termination of our obligations under these covenants as a "covenant termination event." Limitation on Liens. The indenture provides that the Company will not create or assume, or permit any Restricted Subsidiary (as defined below) to create or assume, any mortgage, pledge, security interest or lien ("Mortgage") of or upon any Principal Property (as defined below) or shares of capital stock or indebtedness of any Restricted Subsidiary, unless the debentures are secured by such a Mortgage equally and ratably with all other indebtedness thereby secured. Such covenant does not apply to: (a) Mortgages on any Principal Property, shares of stock or indebtedness of any corporation existing at the time such corporation becomes a Restricted Subsidiary; (b) Mortgages on any Principal Property acquired, constructed or improved by the Company or any Restricted Subsidiary after the date of the indenture which are created or assumed contemporaneously with such acquisition, construction or improvement or within 120 days after the latest of the acquisition, completion of construction (including any improvement on any existing property) or commencement of commercial operation of such property; (c) Mortgages on any Principal Property or shares of stock or indebtedness acquired from a corporation merged with or into the Company or a Restricted Subsidiary; (d) Mortgages on any Principal Property to secure indebtedness of a Restricted Subsidiary to the Company or another Restricted Subsidiary; (e) Mortgages on any Principal Property in favor of the United States of America or any State thereof or The Commonwealth of Puerto Rico or any political subdivisions thereof to secure progress or other payments or to secure indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such Principal Property (including Mortgages incurred in connection with pollution control, industrial revenue, Title XI maritime financings or similar financings); (f) Mortgages existing on the date of the indenture; and (g) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Mortgage referred to in the foregoing clauses (a) to (f), inclusive. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries may, without securing the debentures, create or assume Mortgages (which would otherwise be subject to the foregoing restrictions) securing indebtedness in an aggregate amount which, together with all other Exempted Debt (as defined) of the Company and its Restricted Subsidiaries, does not at the time exceed 10% of the Company's consolidated net tangible assets (defined in the indenture as total assets less current liabilities and intangible assets). Sale and Lease-Back Transactions. The indenture provides that Sale and Lease-Back Transactions (as defined) by the Company or any Restricted Subsidiary of any Principal Property are prohibited except in the event that (a) the Company or such Restricted Subsidiary would be entitled to incur indebtedness secured by a Mortgage on the Principal Property to be leased equal in amount to the Attributable Debt (as defined) with respect to such Sale and Lease-Back Transaction without equally or ratably securing the debentures; or (b) the Company applies an amount equal to the fair value of the property sold to the purchase of Principal Property or to the retirement of Long-Term Indebtedness (as defined) of the Company within 120 days of the effective date of any such Sale and Lease-Back Transaction. In lieu of applying such amount to such retirement the Company may deliver debentures to the trustee for cancellation, such debentures to be credited at the cost thereof to the Company. Notwithstanding the foregoing, the Company or any Restricted Subsidiary may enter into any Sale and Lease-Back Transaction (which would otherwise be subject to the foregoing restrictions) as long as the Attributable Debt resulting from such Sale and Lease-Back Transaction, together with all other Exempted Debt (as defined) of the Company and its Restricted Subsidiaries, does not at the time exceed 10% of the Company's consolidated net tangible assets. 25 The term "Principal Property" means the Company's principal office building and each manufacturing plant or research facility located within the territorial limits of the States of the United States of America or The Commonwealth of Puerto Rico (but not within any other territorial possession) of the Company or a Subsidiary except such as the Board of Directors by resolution reasonably determines (taking into account, among other things, the importance of such property to the business, financial condition and earnings of the Company and its consolidated Subsidiaries taken as a whole) not to be a Principal Property. The term "Subsidiary" means any corporation the outstanding securities of which having ordinary voting power to elect a majority of the board of directors of such corporation are at the time owned or controlled by the Company or by one or more Subsidiaries or by the Company and one or more Subsidiaries, other than a Subsidiary which is engaged primarily in financing receivables, making loans, extending credit, providing financing from foreign sources or other activities of a character conducted by a finance company. The term "Restricted Subsidiary" means any Subsidiary which owns a Principal Property. CONSOLIDATION, MERGER AND SALE OF ASSETS We may not consolidate with, merge into, or sell or convey its property and assets substantially as an entirety to another entity unless (i) the successor entity assumes all of our obligations under the indenture and the debentures, (ii) after giving effect thereto, no default or Event of Default shall have occurred and be continuing, (iii) such successor entity shall be incorporated under the laws of the United States or any State and (iv) we have delivered to the trustee an officers' certificate and a legal opinion confirming that we have complied with the indenture. Thereafter, except in the case of a conveyance by way of lease, all such obligations of ours shall terminate. The indenture further provides that we will not, and will not permit any Restricted Subsidiary to, merge or consolidate with another corporation, or sell all or substantially all of its assets to another corporation for a consideration other than the fair value thereof in cash, if such other corporation has outstanding obligations secured by a mortgage which, after such transaction, would extend to any Principal Property owned by us or such Restricted Subsidiary prior to such transaction, unless we or such Restricted Subsidiary shall have effectively provided that the debentures will be secured by a mortgage which, upon completion of the aforesaid transaction, will rank prior to such mortgage of such other corporation on any Principal Property; provided, that this sentence will cease to apply if a covenant termination event occurs. If we engage in certain reclassifications of our common stock or are a party to a consolidation, merger, binding share exchange or transfer of all or substantially all of our assets pursuant to which our common stock is converted into cash, securities or other property, then at the effective time of the transaction, the right to convert a debenture into our common stock will be changed into a right to convert a debenture into the kind and amount of cash, securities or other property that the holder would have received if the holder had converted its debentures immediately prior to the transaction. If the transaction also constitutes a Fundamental Change, as defined below, a holder can require us to purchase all or a portion of its debentures as described below under "-- Fundamental Change Requires Purchase of Debentures by Us at the Option of the Holder." Certain of these transactions could constitute a Fundamental Change (as defined above) permitting each holder to require us to purchase the debentures of such holder as described above. The provisions of the indenture do not afford holders of the debentures protection in the event of a highly leveraged or other transaction involving us that may adversely affect holders of the debentures. EVENTS OF DEFAULT An Event of Default is defined under the indenture as being: (a) default in payment of any principal of the debentures, either at maturity, upon any redemption or repurchase, by declaration or otherwise; (b) failure to deliver our common stock, or cash in lieu thereof, or a combination of the foregoing, upon conversion of any debenture and such failure continues for 10 days following the scheduled settlement date for such conversion; 26 (c) default for 30 days in payment of any interest on any debentures; (d) default for 90 days after written notice in the observance or performance of any other covenant or agreement in the debentures or the indenture; (e) certain events of bankruptcy, insolvency or reorganization; and (f) failure to provide notice of a Fundamental Change for 10 days after written notice from the trustee or the holders of not less than 25% in principal amount of the debentures. The indenture provides that (i) if an Event of Default described in the foregoing clauses (a), (b), (c), (d) or (f) shall have occurred and be continuing, either the trustee or the holders of not less than 25% in principal amount of the debentures then outstanding may then declare the principal of all debentures and interest accrued thereon to be due and payable immediately; and (ii) if an Event of Default described in the foregoing clause (e) shall have occurred and be continuing, either the trustee or the holders of not less than 25% in principal amount of all series of debt securities then outstanding under the base indenture may declare the principal of all debentures 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 by the holders of a majority in principal amount of the debentures of all such affected series then outstanding. Subject to certain limitations, the holders of a majority in principal amount of the outstanding debentures may direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee. The indenture provides that no holder of debentures may institute any action under the indenture (except actions for payment of overdue principal or interest) unless such holder previously shall have given to the trustee written notice of default and continuance thereof and unless the holders of not less than 25% in principal amount of the debentures then outstanding shall have requested the trustee to institute such action and shall have offered the trustee reasonable indemnity, the trustee shall not have instituted such action within 60 days of such request and the trustee shall not have received direction inconsistent with such written request by the holders of a majority in principal amount of the debentures. The indenture contains a covenant that we will file annually with the trustee a certificate of no default or a certificate specifying any default that exists. A default in the payment of the debentures, or a default with respect to the debentures that causes them to be accelerated, may give rise to a cross default under our credit facilities or other indebtedness we may incur in the future. SATISFACTION AND DISCHARGE OF THE INDENTURE The indenture will generally cease to be of any further effect with respect to the debentures, if: - we have delivered to the trustee for cancellation all outstanding debentures (with certain limited exceptions) or - all debentures not previously delivered to the trustee for cancellation have become due and payable, whether at stated maturity or any redemption date or any purchase date (including upon the occurrence of a Fundamental Change), or upon conversion or otherwise, and we have deposited with the trustee as trust funds the entire amount (including our common stock, as applicable) sufficient to pay all of the outstanding debentures, - and if, in either case, we also pay or cause to be paid all other sums payable under the indenture by us. 27 LEGAL DEFEASANCE AND COVENANT DEFEASANCE The debentures will not be subject to any defeasance provisions under the indenture. MODIFICATION AND WAIVER The indenture provides that we and the trustee may enter into supplemental indentures without the consent of the holders of the debentures to: (a) secure any debentures; (b) evidence the assumption by a successor corporation of the obligations of ours; (c) add covenants for the protection of the holders of debentures; (d) cure any ambiguity or correct any inconsistency in the indenture or conform the indenture to the description of debentures in this prospectus; and (e) evidence the acceptance of appointment by a successor trustee. The indenture also contains provisions permitting us and the trustee, with the consent of the holders of not less than a majority in principal amount of the debentures, to add any provisions to, or change in any manner or eliminate any of the provisions of, the indenture or modify in any manner the rights of the holders of the debentures; provided that we and the trustee may not, without the consent of the holder of each outstanding debenture affected thereby, (a) extend the final maturity of the principal of the debentures or reduce the principal amount thereof or reduce the rate or extend the time of payment of interest thereon or reduce any amount payable on the redemption or repurchase thereof or change the currency in which the principal thereof (including any amount in respect of original issue discount) or interest thereon is payable or reduce the amount of any original issue discount security payable upon acceleration or provable in bankruptcy or impair the right to institute suit for the enforcement of any payment on any debenture when due; (b) make any change that adversely affects the right to convert the debentures or reduces the amount payable upon conversion; (c) reduce the aforesaid percentage in principal amount of debentures, the consent of the holders of which is required for any such modification; or (d) modify any of the foregoing provisions except to increase the aforesaid percentage or to provide that other provisions of the indenture may not be amended or waived without the consent of the holder of each outstanding debenture affected thereby. CALCULATIONS IN RESPECT OF DEBENTURES We will be responsible for making all calculations called for under the debentures. These calculations include, but are not limited to, determinations of the market prices of our common stock, anti-dilution adjustments and the conversion rate of the debentures. We will make all these calculations in good faith and, absent manifest error, our calculations will be final and binding on holders of debentures. We will provide a schedule of our calculations to each of the Trustee and the conversion agent, and each of the Trustee and conversion agent is entitled to rely upon the accuracy of our calculations without independent verification. The Trustee will forward our calculations to any holder of debentures upon the request of that holder. BOOK-ENTRY SYSTEM The debentures are represented by one or more global securities. Each global security has been deposited with, or on behalf of, DTC and registered in the name of a nominee of DTC. Upon the issuance of a global security, DTC will credit on its book-entry registration and transfer system the accounts of persons designated by the initial purchasers with the respective principal amounts of the 28 debentures represented by the global security. Ownership of beneficial interests in a global security will be limited to persons that have accounts with DTC or its nominee ("participants") or persons that may hold interests through participants. Ownership of beneficial interests in a global security will be shown on, and the transfer of that ownership will be effected only through, records maintained by DTC or its nominee (with respect to interests of persons other than participants). The laws of some states require that some purchasers of securities take physical delivery of the securities in certificated form. Such limits and such laws may impair the ability to transfer beneficial interests in a global security. Principal and interest payments, if any, on debentures registered in the name of DTC or its nominee will be made to DTC or its nominee, as the case may be, as the registered owner of the relevant global security. Neither we, the trustee, any paying agent or the security registrar for the debentures have any responsibility or liability for any aspect of the records relating to nor payments made on account of beneficial interests in a global security or for maintaining, supervising or reviewing any records relating to such beneficial interests. We expect that DTC or its nominee, upon receipt of any payment of principal or interest, will credit immediately participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the relevant global security as shown on the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests in a global security held through these participants will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of the participants. Beneficial owners of interests in global securities who desire to convert their interests into common stock or have us redeem or repurchase their interests pursuant to the indenture should contact their brokers or other participants or indirect participants through whom they hold such beneficial interests to obtain information on procedures, including proper forms and cut-off times, for submitting requests for conversion. Unless and until they are exchanged in whole or in part for debentures in certificated form, the global securities may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC. Transfers between participants in DTC will be effected in the ordinary way in accordance with DTC rules and will be settled in same-day funds. If an event of default has occurred and is continuing and all principal and accrued interest in respect of the debentures have become immediately due and payable or DTC at any time is unwilling, unable or ineligible to continue as a depositary, and a successor depositary is not appointed by us within 90 days, we will issue debentures in certificated form in exchange for the global securities relating to the debentures. In addition, we may at any time and in our sole discretion determine not to have the debentures or portions of the debentures represented by one or more global securities and, in that event, we will notify the trustee and issue individual debentures in exchange for the global security or securities representing the debentures. Holders of beneficial interests in a global security may exchange such beneficial interests for debentures in a certificated form upon request in accordance with customary procedures. Debentures so issued in certificated form will be issued as registered debentures in denominations of $1,000 and integral multiples thereof, unless otherwise specified by us. Such debentures will be subject to certain restrictions on registration of transfers as described under "Transfer Restrictions" and will bear the legend set forth thereunder. NOTICES Notices to holders of the notes will be published in authorized newspapers in the Borough of Manhattan, the City of New York and in London. It is expected that publication will be made in the City of New York in The Wall Street Journal and in London in the Financial Times. We will be deemed to have given such notice on the date of each publication or, if published more than once, on the date of the first such publication. THE TRUSTEE JPMorgan Chase Bank is the initial trustee, conversion agent, paying agent, transfer agent and registrar with respect to the debentures. 29 GOVERNING LAW The indenture and the debentures are governed by, and construed in accordance with, the laws of the State of New York. REGISTRATION RIGHTS We entered into a registration rights agreement with the initial purchasers. In the registration rights agreement we agreed, for the benefit of the holders of the debentures and the shares of common stock issuable upon conversion of the debentures, which we refer to as the registrable securities, that we will, at our expense: - file with the SEC, within 90 days after the date the debentures are originally issued, a shelf registration statement, of which this prospectus is a part, covering resales of the registrable securities, - use our reasonable efforts to cause the shelf registration statement to be declared effective under the Securities Act within 180 days after the date the debentures are originally issued and - use our reasonable efforts to keep effective the shelf registration statement during the periods referred to below until the earlier of (i) the date all registrable securities (excluding any shares of common stock issuable upon conversion of debentures so sold) have been sold pursuant to the shelf registration statement or Rule 144 under the Securities Act, or any successor provision and (ii) the expiration of the holding period with respect to the registrable securities under Rule 144(k) under the Securities Act, or any successor provision. The registration rights agreement permits us, if we possess material nonpublic information the disclosure of which would have a material adverse effect on us and our subsidiaries taken as a whole, to postpone for a reasonable period not to exceed 90 days without causing a registration default, our obligation to use reasonable efforts to cause the shelf registration statement to be declared effective within 180 days after the initial issuance of the debentures. We will provide notice to all holders of debentures if we do postpone the effective date of the shelf registration statement. Notwithstanding the foregoing, holders of registrable securities will only be entitled to sell such securities under the shelf registration statement during the following periods, which we refer to as window periods: - following the date the shelf registration statement is effective, the 20 calendar day period commencing on the date we are required to have filed any of our Quarterly Reports on Form 10-Q or Annual Reports on Form 10-K. We anticipate those dates to be: - 40 days after the end of the fiscal quarters ended June 30, 2004 and September 30, 2004; - 60 days after the end of the fiscal years ended December 31, 2004 and December 31, 2005; and - 35 days after the end of the fiscal quarters ended March 31, 2005, June 30, 2005 and September 30, 2005; - in connection with our option to purchase the debentures, the period commencing on the date we call the debentures for redemption and ending on the redemption date; - in connection with any Fundamental Change, the period commencing on the date we send a Fundamental Change purchase notice and ending the Fundamental Change purchase date unless we elect to pay all conversions during this period in cash; and - in connection with conversions upon specified corporate transactions (see "Description of the Debentures -- Conditions to Conversion -- Conversion Upon Specified Corporate Transactions"), the period commencing on the date we send notice of such transaction and ending the earlier of the business day following the ex-dividend date for such transaction or our public announcement that such transaction will not take place unless we elect to pay all conversions during this period in cash. We may, upon written notice to holders of registrable securities, suspend the use of the shelf registration statement during any of the window periods described in the first bullet point above without causing a 30 registration default. If we suspend the use of the shelf registration statement at any time during any of those window periods, we will make the shelf registration statement available for the sale of registrable securities as soon as possible for another 20 calendar day period. We will notify holders of registrable securities at least five calendar days in advance of the commencement of such 20 calendar day period. A holder who elects to sell any registrable securities pursuant to the shelf registration statement: - will be required to be named as a selling securityholder in the related prospectus, - may be required to deliver a prospectus to purchasers, - may be subject to certain civil liability provisions under the Securities Act in connection with those sales and - will be bound by the provisions of the registration rights agreement that apply to a holder making such an election, including certain indemnification provisions. Additional interest will accrue on the debentures if any of the following events occurs, which we call "registration defaults": - on or prior to the 90th day following the date the debentures were originally issued, a shelf registration statement, of which this prospectus is a part, has not been filed with the SEC, - on or prior to the 180th day following the date the debentures were originally issued, which we refer to as the "effectiveness target date," the shelf registration statement is not declared effective, subject to our right to postponement, as described above, - at any time after the effectiveness target date, the shelf registration statement ceases to be effective or fails to be useable during a window period, subject to our right to postponement or suspension, as described above, or - we fail to perform any of our obligations to file any amendment or supplement to the shelf registration statement and related prospectus by the date therein prescribed. If a registration default occurs, additional interest will accrue on any debentures that are then restricted securities, from and including the day following the registration default to but excluding the day on which the registration default has been cured. Additional interest will be paid semiannually in arrears, with the first semiannual payment due on the first interest payment date following the date on which the additional interest began to accrue. The rates at which additional interest will accrue will be as follows: - 0.25% of the principal amount per annum to and including the 90th day after the registration default, and - 0.50% of the principal amount per annum from and after the 91st day after the registration default. Additional interest will accrue until the earlier of the following: - the time the shelf registration statement becomes effective, and - the earlier of (i) the date all registrable securities have been sold pursuant to the shelf registration statement or Rule 144 under the Securities Act, or any successor provision and (ii) the expiration of the holding period with respect to the registrable securities under Rule 144(k) under the Securities Act, or any successor provision. We agreed in the registration rights agreement to use our reasonable best efforts to cause the shares of common stock issuable upon conversion of the debentures to be listed on the New York Stock Exchange. However, if the common stock is not then listed on the New York Stock Exchange, we will use our reasonable best efforts to cause the shares of common stock issuable upon conversion of the debentures to be quoted or listed on whichever market or exchange the common stock is then primarily traded, upon effectiveness of the shelf registration statement. 31 This summary of certain provisions of the registration rights agreement is not complete and is subject to, and qualified in its entirety by reference to, all the provisions of the registration rights agreement, a copy of which was filed as an exhibit to the shelf registration statement, of which this prospectus is a part. DESCRIPTION OF CAPITAL STOCK GENERAL Our Restated Certificate of Incorporation authorizes the issuance of 2,405,000,000 shares of capital stock, of which 2,400,000,000 shares are common stock with a par value of $0.33 1/3 per share and 5,000,000 shares are preferred stock with a par value of $2.50 per share. As of the close of business on November 28, 2003, our outstanding capital stock consisted of 1,331,804,873 shares of common stock and 17,105 shares of convertible preferred stock issued and outstanding. The following summaries of certain provisions of our capital stock do not purport to be complete and are subject to, and qualified in their entirety by (i) the provisions of our Restated Certificate of Incorporation, including the Certificate of Designations pursuant to which any series of preferred stock may be issued, (ii) the By-laws; and (iii) the Delaware General Corporation Law. COMMON STOCK Voting Rights. Each holder of common stock is entitled to one vote per share on all matters to be voted upon by stockholders of the Company, and do not have cumulative voting rights. Dividend Rights. Holders of our common stock are entitled to receive ratably such dividends, if any, as may be declared from time to time by the Board of Directors out of funds legally available for that purpose, subject to preferences that may be applicable to any outstanding preferred stock and any other provisions of our Restated Certificate of Incorporation. Rights Upon Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up, the holders of common stock are entitled, after payment of the debts and other liabilities, and subject to the rights of holders of shares of preferred stock, to share in any distribution to the stockholders on a pro rata basis. Miscellaneous. All of the outstanding shares of our common stock are fully paid and non-assessable. Holders of common stock have no preemptive or other rights to subscribe for additional shares. No shares of common stock are subject to redemption or a sinking fund. Listing. The common stock is listed on the New York Stock Exchange under the symbol "WYE." Common Stock Available for Issuance. As of November 28, 2003, we had granted options under our stock incentive plans to purchase an aggregate of 133,789,213 shares of common stock (with options relating to 84,082,075 shares of common stock currently exercisable) and we had an aggregate of 615,780 shares of common stock that could be issued upon conversion of our convertible preferred stock into common stock. As of that date, we held 90,261,753 shares of common stock in treasury that could be used to satisfy our current obligations under the stock incentive plans and convertible preferred stock. TRANSFER AGENT AND REGISTRAR The transfer agent and registrar for our common stock is The Bank of New York. PREFERRED STOCK The Restated Certificate of Incorporation authorizes our Board of Directors to issue preferred stock from time to time in one or more series, without stockholder action. The Board of Directors is authorized to issue up to 5,000,000 shares of preferred stock with a par value of $2.50 per share, and can determine the number of shares of each series, dividend rates, redemption prices, voting rights, preference and limitations of each series as well as any other special rights and protective provisions. 32 CONVERTIBLE PREFERRED STOCK Voting Rights. Each holder of convertible preferred stock is entitled to 36 votes for each share on each matter submitted to a vote at a meeting of shareholders. If we default in the payment of dividends on the convertible preferred stock for a certain period of time, we will be required to increase the number of directors that constitute our Board of Directors by two, and the holders of preferred stock will be entitled to vote for these directors. Dividend Rights. Holders of convertible preferred stock are entitled to receive when, as and if declared by the Board of Directors, dividends with an annual dividend rate of $2.00, payable in cash quarterly on January 1, April 1, July 1 and October 1. Redemption. The shares of convertible preferred stock are redeemable at the option of the Board of Directors if at the time of mailing of the notice of redemption, the average market price per share of the common stock is at least $80.00 per share, or in the event that an adjustment in the number of shares issuable upon conversion of preferred stock for shares of common stock shall have occurred, then a market price per share equal to the product of multiplying $60.00 per share by the reciprocal of the then current conversion rate. The redemption price will be $60.00 per share in cash plus accrued but unpaid dividends on the redemption date. Conversion. The shares of convertible preferred stock are convertible at the option of the holder, at any time, upon surrender to a transfer agent of the certificate representing the shares to be converted into fully paid and non-assessable shares of common stock of the Company at a rate of 0.75 shares of common stock for each convertible preferred share, subject to adjustment. Upon conversion, no payment or adjustment will be made for accrued but unpaid dividends on any shares. Rights Upon Liquidation. In the event of our voluntary liquidation, dissolution or winding-up, holders of convertible preferred stock are entitled to receive $60.00 per share prior to the receipt of any of our assets by holders of common stock. In the case of our involuntary liquidation, dissolution or winding-up, the holders of convertible preferred stock are entitled to receive the amount of $52.50 per share prior to the receipt of any of our assets by holders of common stock. In either case, holders of convertible preferred stock will also receive an amount equal to all accrued but unpaid dividends to the date of the liquidation, dissolution or winding-up. Miscellaneous. The shares of convertible preferred stock are not subject to the operation of any sinking fund to be applied to the purchase or redemption of such shares. No fractional shares can be issued upon conversion, but the stockholder is entitled to receive a cash payment equal to the value of the fractional interest in a share. Listing. The convertible preferred stock is listed on the New York Stock Exchange under the symbol "WYEPR." CERTAIN EFFECT OF AUTHORIZED BUT UNISSUED CAPITAL STOCK We have shares of common stock and preferred stock available for future issuance without stockholder approval. We may use these additional shares for a variety of corporate purposes, including future public or private offerings to raise additional capital, facilitating corporate acquisitions or paying a dividend on our capital stock. The existence of unissued and unreserved shares of common stock and preferred stock may enable our Board of Directors to issue shares to persons friendly to current management or to issue preferred stock with terms that could render more difficult or discourage a third party's attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise, thereby protecting the continuity of our management. In addition, our issuance of preferred stock could adversely affect the voting power of holders of common stock and the likelihood that such holders will receive dividend payments and payments upon liquidation. 33 ANTI-TAKEOVER EFFECTS OF PROVISIONS OF DELAWARE LAW AND OUR CHARTER AND BY-LAWS Our Restated Certificate of Incorporation, By-laws and the Delaware General Corporation Law include a number of provisions that could delay, defer or prevent a transaction or change of control of us that might involve a premium price for holders of our common stock or that our holders might believe to be in their best interest. RESTATED CERTIFICATE OF INCORPORATION; BY-LAWS Constitution of Board of Directors. Our Restated Certificate of Incorporation provides that, subject to any rights of holders of preferred stock to elect additional directors under specified circumstances, the number of directors will be fixed in the manner provided in our By-laws, and must consist of not less than eight and not more than fifteen directors. Our Restated Certificate of Incorporation and By-laws provide that any vacancies will be filled only by the affirmative vote of a majority of the remaining directors, even if those directors constitute less than a quorum. Removal of Directors. Our Restated Certificate of Incorporation provides that a majority of the Board of Directors may remove a director (except directors elected by holders of preferred stock) for any cause deemed sufficient by them. Any director may also be removed from office by the vote of the holders of at least 80% of the voting power of all the outstanding shares of stock entitled to vote generally in the election of directors, voting together as a single class. Stockholder Action. Our Restated Certificate of Incorporation and By-laws provide that stockholder action can be taken only at an annual or special meeting of stockholders and may not be taken by written consent in lieu of a meeting. Our Restated Certificate of Incorporation and By-laws further provide that, subject to any rights of holders of preferred stock, special meetings of stockholders can be called only by our Chairman or Vice-Chairman of the Board of Directors or the President, or by the Secretary on the written request of a majority of all the directors. Amendment. Pursuant to the Delaware General Corporation Law, our Restated Certificate of Incorporation may generally be amended by the affirmative vote of the holders of a majority of the voting power of the outstanding stock, provided that the affirmative vote of the holders of at least 80% of the combined voting power of the then outstanding shares of stock entitled to vote generally in the election of directors, voting together as a single class, is required to amend the provisions of the Restated Certificate of Incorporation and the By-laws relating to special meetings, the power, number, election, term and vacancies of the Board and the ability of stockholders to remove directors. Subject to the supermajority voting requirements listed above, the By-laws may be amended by the affirmative vote of the holders of a majority of the voting power of the outstanding stock. All of the provisions of the Restated Certificate of Incorporation and By-laws, other than those requiring supermajority stockholder approval listed above, may also be amended by the Board of Directors by vote of a majority of all the directors, subject to the right of the stockholders to alter or repeal such amendments of the By-laws adopted by the Board of Directors as described above. DELAWARE LAW We are a Delaware corporation subject to Section 203 of the Delaware General Corporation Law. Section 203 provides that, subject to certain exceptions specified in the law, a Delaware corporation shall not engage in certain "business combinations" with any "interested stockholder" for a three-year period following the time that the stockholder became an interested stockholder unless: - prior to such time, our board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; - upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, excluding certain shares; or 34 - at or subsequent to that time, the business combination is approved by our board of directors and by the affirmative vote of holders of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder. Generally, a "business combination" includes a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. Subject to certain exceptions, an "interested stockholder" is a person who together with that person's affiliates and associates owns, or within the previous three years did own, 15% or more of our voting stock. Under certain circumstances, Section 203 makes it more difficult for a person who would be an "interested stockholder" to effect various business combinations with a corporation for a three-year period. The provisions of Section 203 may encourage companies interested in acquiring our company to negotiate in advance with our board of directors because the stockholder approval requirement would be avoided if our board of directors approves either the business combination or the transaction which results in the stockholder becoming an interested stockholder. These provisions also may have the effect of preventing changes in our board of directors and may make it more difficult to accomplish transactions which stockholders may otherwise deem to be in their best interests. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES The following summary describes the material U.S. federal income tax consequences of the ownership of debentures and certain consequences of ownership of the shares of common stock into which the debentures may be converted, as of the date hereof. Except where noted, it deals only with debentures and shares of common stock held as capital assets. This summary does not deal with special situations, such as: - tax consequences to holders who may be subject to special tax treatment, including dealers in securities or currencies, financial institutions, regulated investment companies, real estate investment trusts, tax- exempt entities, insurance companies, and traders in securities or commodities that elect to use a mark-to-market method of accounting for their securities holdings; - tax consequences to persons holding debentures or shares of common stock as a part of a hedging, integrated, conversion or constructive sale transaction or a straddle; - tax consequences to U.S. holders (as defined below) of debentures or shares of common stock whose "functional currency" is not the U.S. dollar; - investors in pass-through entities; - alternative minimum tax consequences, if any; or - any state, local or foreign tax consequences. The discussion below is based upon the provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and regulations, rulings and judicial decisions thereunder as of the date hereof, and such authorities may be repealed, revoked or modified so as to result in U.S. federal income tax consequences different from those discussed below. If a partnership holds debentures or shares of common stock, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partner in a partnership holding the debentures or shares of common stock, you should consult your tax advisors. IF YOU ARE CONSIDERING THE PURCHASE OF DEBENTURES, YOU SHOULD CONSULT YOUR OWN TAX ADVISORS CONCERNING THE U.S. FEDERAL INCOME TAX CONSEQUENCES TO YOU IN LIGHT OF YOUR PARTICULAR SITUATION AS WELL AS ANY CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE, LOCAL, FOREIGN OR OTHER TAXING JURISDICTION. As used herein, the term "U.S. holder" means a holder of debentures or shares of common stock that is for U.S. federal income tax purposes: - a citizen or resident of the U.S.; 35 - a corporation created or organized in or under the laws of the U.S. or any political subdivision of the U.S.; - an estate the income of which is subject to U.S. federal income taxation regardless of its source; or - a trust if it (i) is subject to the primary supervision of a court within the U.S. and one or more U.S. persons have the authority to control all substantial decisions of the trust or (ii) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. A "non-U.S. holder" is a beneficial owner of debentures or shares of common stock (other than a partnership) that is not a U.S. holder. Special rules may apply to certain non-U.S.holders such as "controlled foreign corporations," "passive foreign investment companies" and "foreign personal holding companies." Such entities should consult their own tax advisors to determine the U.S. federal, state, local and other tax consequences that may be relevant to them. CONSEQUENCES TO U.S. HOLDERS PAYMENT OF INTEREST Stated interest on a debenture will generally be taxable to you as ordinary income at the time it is paid or accrued in accordance with your usual method of accounting for tax purposes. MARKET DISCOUNT If you purchase a debenture for an amount that is less than its stated redemption price at maturity, the amount of the difference will be treated as "market discount" for U.S. federal income tax purposes, unless the difference is less than a specified de minimis amount. Under the market discount rules, you will be required to treat any payment, other than stated interest, on, or any gain on the sale, exchange, retirement or other disposition of, a debenture as ordinary income to the extent of the market discount that you have not previously included in income and are treated as having accrued on the debenture at the time of its payment or disposition. Any unrecognized market discount will carry over to common stock received upon conversion or repurchase by us of the debentures. In addition, you may be required to defer, until the maturity of the debenture or its earlier disposition in a taxable transaction, the deduction of all or a portion of the interest expense on any indebtedness attributable to the debenture. Any market discount will be considered to accrue ratably during the period from the date of acquisition to the maturity date of the debenture, unless you elect to accrue on a constant interest method. Your election to accrue market discount on a constant interest method is to be made for the taxable year in which you acquired the debenture, applies only to that debenture and may not be revoked without the consent of the Internal Revenue Service. You may elect to include market discount in income currently as it accrues, on either a ratable or constant interest method, in which case the rule described above regarding deferral of interest deductions will not apply. Your election to include market discount in income currently, once made, applies to all market discount obligations acquired by you on or after the first taxable year to which your election applies and may not be revoked without the consent of the Internal Revenue Service. You should consult your own tax advisor before making either election described in this paragraph. AMORTIZABLE BOND PREMIUM If you purchase a debenture for an amount in excess of the sum of all amounts payable on the debenture after the purchase date other than stated interest, you will be considered to have purchased the debenture at a "premium". You generally may elect to amortize the premium over the remaining term of the debenture on a constant yield method as an offset to interest when includible in income under your regular account method. If you do not elect to amortize bond premium, that premium will decrease the gain or increase the loss you would otherwise recognize on disposition of the debenture. Your election to amortize premium on a constant yield method will also apply to all debt obligations held or subsequently acquired by you on or after the first day of the first taxable year to which the election applies. You may not revoke the election without the consent of the Internal Revenue Service. You should consult your own tax advisor before making this election. 36 SALE, EXCHANGE, REDEMPTION, OR OTHER DISPOSITION OF DEBENTURES Except as provided below under "-- Conversion of Debentures into Common Stock, Cash or a Combination Thereof," you will generally recognize gain or loss upon the sale, exchange, redemption or other disposition of a debenture equal to the difference between the amount realized (less accrued interest, which will be taxable as such) upon the sale, exchange, redemption or other disposition and your adjusted tax basis in the debenture. Your tax basis in a debenture will generally be equal to the amount you paid for the debenture increased by market discount that you previously included in income and reduced by any bond premium that the holder elects to amortize and any cash payments on the debenture other than stated interest. Any gain or loss recognized on a taxable disposition of the debenture will be capital gain or loss subject to the market discount discussion above. If you are an individual and have held the debenture for more than one year, such capital gain will be subject to reduced rates of taxation. Your ability to deduct capital losses may be limited. CONVERSION OF DEBENTURES INTO COMMON STOCK, CASH OR A COMBINATION THEREOF Neither gain nor loss will be recognized by U.S. holders on the exchange of debentures into shares of common stock upon conversion, except to the extent of cash received, if any, including any cash received in lieu of a fractional share and except to the extent of amounts received with respect to accrued interest, which will be taxable as such. If you receive solely cash in exchange for your debentures upon conversion, your gain or loss will be determined in the same manner as if you disposed of the debentures in a taxable disposition (as described above under "-- Sale, Exchange, Redemption or other Disposition of Debentures"). If a combination of cash and common stock is received in exchange for your debentures upon conversion, although the tax treatment is uncertain, we intend to take the position that gain, but not loss, will be recognized equal to the excess of the fair market value of the common stock and cash received (other than amounts attributable to accrued interest, which will be treated as such, and cash received in lieu of a fractional share) over your adjusted tax basis in the debenture (excluding the portion of the tax basis that is allocable to any fractional share), but in no event should the gain recognized exceed the amount of cash received (excluding cash attributable to accrued interest or received in lieu of a fractional share). The amount of gain or loss recognized on the receipt of cash in lieu of a fractional share will be equal to the difference between the amount of cash you receive in respect of the fractional share and the portion of your adjusted tax basis in the debenture that is allocable to the fractional share. The tax basis of the shares of common stock received upon a conversion (other than common stock attributable to accrued interest, the tax basis of which will equal its fair market value) will equal the adjusted tax basis of the debenture that was converted (excluding the portion of the tax basis that is allocable to any fractional share), reduced by the amount of any cash received (excluding cash received in lieu of a fractional share or cash attributable to accrued interest), and increased by the amount of gain, if any, recognized (other than with respect to a fractional share). Your holding period for shares of common stock received upon conversion will include the period during which you held the debentures, except that the holding period of any common stock received with respect to accrued interest will commence on the day after the date of receipt. You should consult your tax advisors regarding the tax treatment of the receipt of cash and stock in exchange for debentures upon conversion and the ownership of our common stock. CONSTRUCTIVE DISTRIBUTIONS The conversion rate of the debentures will be adjusted in certain circumstances as described under "Description of the Debentures -- Conversion Rights." Under Section 305(c) of the Code, adjustments (or failures to make adjustments) that have the effect of increasing your proportionate interest in our assets or earnings may in some circumstances result in a deemed distribution to you. Adjustments to the conversion rate made pursuant to a bona fide reasonable adjustment formula that has the effect of preventing the dilution of the interest of the holders of the debentures, however, will generally not be considered to result in a deemed distribution to you. Certain of the possible conversion rate adjustments provided in the debentures (including, 37 without limitation, adjustments in respect of taxable dividends to holders of our common stock) will not qualify as being pursuant to a bona fide reasonable adjustment formula. If such adjustments are made, you will be deemed to have received a distribution even though you have not received any cash or property as a result of such adjustments. Any deemed distributions will be taxable as a dividend, return of capital, or capital gain in accordance with the rules under the Code governing corporate distributions. It is not clear whether a constructive dividend deemed paid to individuals would be eligible for the preferential rates of U.S. federal income tax applicable in respect of certain dividends received under recently enacted legislation. It is also unclear whether corporate holders would be entitled to claim the dividends received deduction with respect to any such constructive dividends. INFORMATION REPORTING AND BACKUP WITHHOLDING Information reporting requirements generally will apply to payments of interest on the debentures and dividends on shares of common stock and to the proceeds of a sale of a debenture or share of common stock paid to you unless you are an exempt recipient such as a corporation. A backup withholding tax will apply to those payments if you fail to provide your taxpayer identification number, or certification of foreign or other exempt status, or if you fail to report in full interest and dividend income. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against your U.S. federal income tax liability, provided the required information is timely furnished to the Internal Revenue Service. CONSEQUENCES TO NON-U.S. HOLDERS PAYMENTS OF INTEREST The 30% U.S. federal withholding tax will not apply to any payment to you of interest on a debenture under the "portfolio interest rule," provided that: - interest paid on the debenture is not effectively connected with your conduct of a trade or business in the U.S.; - you do not actually or constructively own 10% or more of the total combined voting power of all classes - of our stock that are entitled to vote, within the meaning of section 871(h)(3) of the Code; - you are not a controlled foreign corporation that is related to us (actually or constructively) through stock ownership; - you are not a bank whose receipt of interest on a debenture is described in section 881(c)(3)(A) of the Code; and - (a) you provide your name and address and certify, under penalties of perjury, that you are not a U.S. person (which certification may be made on an Internal Revenue Service Form W-8BEN (or successor form)) or (b) you hold your debentures through certain foreign intermediaries or certain foreign partnerships, and you satisfy the certification requirements of applicable Treasury regulations. Special certification rules apply to non-U.S. holders that are pass-through entities. If you cannot satisfy the requirements described above, payments of interest will be subject to the 30% U.S. federal withholding tax, unless you provide us with a properly executed (1) Internal Revenue Service Form W-8BEN (or successor form) claiming an exemption from or reduction in withholding under the benefit of an applicable income tax treaty or (2) Internal Revenue Service Form W-8ECI (or successor form) stating that interest paid on the debenture is not subject to withholding tax because it is effectively connected with your conduct of a trade or business in the U.S. and is includible in your U.S. gross income. If you are engaged in a trade or business in the U.S. and interest on the debentures is effectively connected with the conduct of that trade or business and, where a tax treaty applies, is attributable to a U.S. permanent establishment, then, although exempt from the withholding tax discussed above, you will be subject to U.S. federal income tax on that interest on a net income basis in the same manner as if you were a U.S. holder. In addition, if you are a foreign corporation, you may be subject to a branch profits tax equal to 38 30% (or lesser rate under an applicable income tax treaty) of your earnings and profits for the taxable year, subject to adjustments, that are effectively connected with your conduct of a trade or business in the U.S. DIVIDENDS AND CONSTRUCTIVE DIVIDENDS Any dividends paid to you with respect to shares of our common stock (and any deemed dividends resulting from certain adjustments, or failure to make adjustments, to the conversion rate, including, without limitation, adjustments in respect of taxable dividends to holders of our common stock, see "-- Constructive Distributions" above) will be subject to withholding tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty. In the case of any constructive dividend, it is possible that this tax would be withheld from interest, shares of your common stock or sales proceeds subsequently paid or credited to you. However, dividends that are effectively connected with the conduct of a trade or business within the U.S. and, where a tax treaty applies, are attributable to a U.S. permanent establishment, are not subject to the withholding tax, but instead are subject to U.S. federal income tax on a net income basis at applicable graduated individual or corporate rates. Certain certification requirements and disclosure requirements must be complied with in order for effectively connected income to be exempt from withholding. Any such effectively connected income received by a foreign corporation may, under certain circumstances, be subject to an additional branch profits tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty. A non-U.S. holder of shares of common stock or debentures who wishes to claim the benefit of an applicable treaty rate for dividends or constructive dividends is required to satisfy applicable certification and other requirements. If you are eligible for a reduced rate of U.S. withholding tax pursuant to an income tax treaty, you may obtain a refund of any excess amounts withheld by filing an appropriate claim for refund with the Internal Revenue Service. CONVERSION OF DEBENTURES INTO COMMON STOCK, CASH OR A COMBINATION THEREOF Neither gain nor loss will be recognized by non-U.S. holders on the exchange of debentures into shares of our common stock upon conversion, except to the extent of cash received in lieu of a fractional share (which will be treated as described below under "-- Sale, Exchange, Redemption or Other Disposition of Debentures or Shares of Common Stock") and common stock attributable to accrued interest (which will be treated as described above under "-- Payments of Interest"). To the extent you receive cash (other than as described in the preceding sentence) upon conversion of a debenture, the conversion will be taxed in the same manner as described above under "Consequences to U.S. Holders -- Conversion of Debentures into Common Stock, Cash or a Combination Thereof." Any gain realized upon the conversion of the debentures will be subject to tax in the manner described below under "-- Sale, Exchange, Redemption or Other Disposition of Debentures or Shares of Common Stock." SALE, EXCHANGE, REDEMPTION OR OTHER DISPOSITION OF DEBENTURES OR SHARES OF COMMON STOCK Any gain realized upon the sale, exchange, redemption or other disposition of a debenture or share of common stock generally will not be subject to U.S. federal income tax unless: - that gain is effectively connected with your conduct of a trade or business in the U.S., and, where a tax treaty applies, that gain is attributable to a U.S. permanent establishment; - you are an individual who is present in the U.S. for 183 days or more in the taxable year of that disposition, and certain other conditions are met; or - we are or have been during a specified period prior to such sale, exchange, redemption or other disposition, a "U.S. real property holding corporation" for U.S. federal income tax purposes. We believe that we are not and do not anticipate becoming a "U.S. real property holding corporation" for U.S. federal income tax purposes. 39 U.S. FEDERAL ESTATE TAX Your estate will not be subject to U.S. federal estate tax on debentures beneficially owned by you at the time of your death, provided that any payment to you on the debentures would be eligible for exemption from the 30% U.S. federal withholding tax under the "portfolio interest rule" described above under "-- Payments of Interest," without regard to the statement requirement described in the last bullet point, and, at the time of your death, payments with respect to the debentures would not have been effectively connected with the conduct by you of a trade or business in the U.S. However, shares of common stock held by you at the time of your death will be included in your gross estate for U.S. federal estate tax purposes unless an applicable estate tax treaty provides otherwise. INFORMATION REPORTING AND BACKUP WITHHOLDING We must report annually to the Internal Revenue Service and to you the amount of interest and dividends paid or deemed paid to you and the amount of tax, if any, withheld with respect to those payments. Copies of the information returns reporting such interest, dividends and withholding may also be made available to the tax authorities in the country in which you reside under the provisions of an applicable income tax treaty. In general, you will not be subject to backup withholding with respect to interest or dividends paid or deemed paid on the debentures or our common stock, provided the statement described above in the last bullet point under "-- Payments of Interest" has been received (and we do not have actual knowledge or reason to know that you are a U.S. person that is not an exempt recipient). In addition, you will be subject to information reporting and, depending on the circumstances, backup withholding with respect to payments of the proceeds of the sale of a debenture or share of common stock within the U.S. or conducted through certain U.S.-related financial intermediaries, unless the statement described above has been received (and we do not have actual knowledge or reason to know that you are a U.S. person that is not an exempt recipient) or you otherwise establish an exemption. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against your U.S. federal income tax liability, provided the required information is timely furnished to the Internal Revenue Service. SELLING SECURITYHOLDERS We originally issued the debentures on December 16, 2003. The debentures were resold by the initial purchasers to qualified institutional buyers under Rule 144A under the Securities Act. Selling securityholders, including their transferees, pledgees, donees or their successors, may offer and sell the debentures and the underlying common stock pursuant to this prospectus. The following table sets forth information as of , 2004 about the principal amount of debentures and the underlying common stock beneficially owned by each selling securityholder that may be offered using this prospectus.
PRINCIPAL AMOUNT OF PERCENTAGE OF NUMBER OF SHARES OF PERCENTAGE OF DEBENTURES BENEFICIALLY DEBENTURES COMMON STOCK THAT COMMON STOCK NAME OWNED THAT MAY BE SOLD OUTSTANDING MAY BE SOLD(1) OUTSTANDING(2)(4) ---- ----------------------- ------------- ------------------- ----------------- Any other holder of debentures or future transferee, pledgee, donee or successor of any holder(3)(4)...
- --------------- (1) Assumes conversion of all of the holder's debentures at the initial conversion rate of 16.559 shares per debenture. The initial conversion rate is subject to adjustment as described under "Description of Debentures -- Conversion Rate Adjustments." As a result, the amount of common stock issuable upon conversion of the debentures may increase or decrease in the future. (2) Calculated based on Rule 13d-3(d) of the Exchange Act, using 1,332,434,672 shares of common stock outstanding as of December 31, 2003. In calculating this amount for holders of debentures, we treated as 40 outstanding the number of shares of common stock issuable upon conversion of all of that particular holder's debentures. We did not, however, assume the conversion of any other holder's debentures. (3) Information about other selling securityholders will be set forth in an amendment to the registration statement of which this prospectus is a part or in prospectus supplements, as required. (4) Assumes that any holders of debentures, or any future transferees, pledgees, donees or successors of or from any such holders of debentures, do not beneficially own any common stock other than the common stock issuable upon conversion of the debentures. We prepared this table based on the information supplied to us by the selling securityholders named in the table. The selling securityholders listed in the above table may have sold or transferred, in transactions exempt from the registration requirements of the Securities Act, some or all of their debentures since the date on which the information is presented in the above table. Information about the selling securityholders may change over time. Any changed information may be set forth in amendments and/or prospectus supplements to the registration statement of which this prospectus is a part. Because the selling securityholders may offer all or some of their debentures or the underlying common stock from time to time we cannot estimate the amount or percentage of the debentures or the underlying common stock that will be held by the selling securityholders upon the termination of any particular offering. See "Plan of Distribution." To our knowledge, none of the named selling securityholders nor any of their affiliates, officers, directors or principal equity holders has held any position or office with, been employed by or otherwise had any material relationship with us or our affiliates during the three years prior to the date of this prospectus. PLAN OF DISTRIBUTION We will not receive any of the proceeds of the sale of the debentures and the underlying common stock offered by this prospectus. The aggregate proceeds to the selling securityholders from the sale of the debentures or underlying common stock will be the purchase price of the debentures or underlying common stock less any discounts and commissions. A selling securityholder reserves the right to accept and, together with their agents, to reject, any proposed purchase of debentures or common stock to be made directly or through agents. The debentures and the underlying common stock may be sold from time to time to purchasers: - directly by the selling securityholders and their successors, which includes their transferees, pledgees or donees or their successors, or - through underwriters, broker-dealers or agents who may receive compensation in the form of discounts, concessions or commissions from the selling securityholders or the purchasers of the debentures and the underlying common stock. These discounts, concessions or commissions may be in excess of those customary in the types of transactions involved. The selling securityholders and any underwriters, broker-dealers or agents who participate in the distribution of the debentures and the underlying common stock may be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act. Any selling securityholder which is a broker-dealer or an affiliate of a broker-dealer will be deemed to be an "underwriter" within the meaning of Section 2(11) of the Securities Act, unless such selling securityholder purchased in the ordinary course of business, and at the time of its purchase of the debentures to be resold, did not have any agreements or understandings, directly or indirectly, with any person to distribute the debentures. As a result, any profits on the sale of the debentures and the underlying common stock by selling securityholders who are deemed to be underwriters and any discounts, commissions or concessions received by any such broker-dealers or agents who are deemed to be underwriters will be deemed to be underwriting discounts and commissions under the Securities Act. Selling securityholders who are deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act will be subject to prospectus delivery requirements of the Securities Act and to certain statutory liabilities, including, but not limited to, those relating to Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 41 under the Exchange Act. To our knowledge, none of the selling securityholders who are broker-dealers or affiliates of broker-dealers, other than the initial purchasers, purchased the debentures outside of the ordinary course of business or, at the time of the purchase of the debentures, had any agreements or understandings, directly or indirectly, with any person to distribute the debentures. If the debentures and the underlying common stock are sold through underwriters or broker-dealers, the selling securityholders will be responsible for underwriting discounts or commissions or agent's commissions. The debentures and the underlying common stock may be sold in one or more transactions at: - fixed prices; - prevailing market prices at the time of sale; - prices related to such prevailing market prices; - varying prices determined at the time of sale; or - negotiated prices. These sales may be effected in transactions: - on any national securities exchange or quotation service on which the debentures and underlying common stock may be listed or quoted at the time of the sale, including the New York Stock Exchange in the case of the common stock; - in the over-the-counter market; - in transactions otherwise than on such exchanges or services or in the over-the-counter market; or - through the writing of options, whether such options are listed on an options exchange or otherwise through the settlement of short sales. These transactions may include block transactions or crosses. Crosses are transactions in which the same broker acts as an agent on both sides of the trade. At the time a particular offering of the securities is made, if required, a prospectus supplement will be distributed, which will set forth the names of the selling securityholders, the aggregate amount and type of securities being offered and the terms of the offering, including, to the extent required, (1) the name or names of any underwriters, broker-dealers or agents, (2) any discounts, commissions and other terms constituting compensation from the selling securityholders and (3) any discounts, commissions or concessions allowed or reallowed to be paid to broker-dealers. To our knowledge, there are currently no plans, arrangements or understandings between any selling securityholder and any underwriter, broker-dealer or agent regarding the sale of the debentures and the underlying common stock by the selling securityholders. Our common stock trades on the New York Stock Exchange under the symbol "WYE." We do not intend to apply for listing of the debentures on any securities exchange or for quotation through NASDAQ. Accordingly, no assurances can be given as to the development of liquidity or any trading market for the debentures. See "Risk Factors-Risks related to the Debentures." We cannot assure you that any selling securityholder will sell any or all of the debentures or the underlying common stock with this prospectus. Further, we cannot assure you that any such selling securityholder will not transfer, devise or gift the debentures and the underlying common stock by other means not described in this prospectus. In addition, any debentures or underlying common stock covered by this prospectus that qualify for sale under Rule 144 or Rule 144A of the Securities Act may be sold under Rule 144 or Rule 144A rather than under this prospectus. The debentures and the underlying common stock may be sold in some states only through registered or licensed brokers or dealers. In addition, in some states the debentures and underlying common stock may not be sold unless they have been registered or qualified for sale or the sale is entitled to an exemption from registration. 42 The selling securityholders and any other person participating in the sale of debentures or the underlying common stock will be subject to the Exchange Act. The Exchange Act rules include, without limitation, Regulation M, which may limit the timing of purchases and sales of any of the debentures and the underlying common stock by the selling securityholders and any other such person. In addition, Regulation M of the Exchange Act may restrict the ability of any person engaged in the distribution of the debentures and the underlying common stock to engage in market-making activities with respect to the particular debentures and the underlying common stock being distributed for a period of up to five business days before the commencement of such distribution. This may affect the marketability of the debentures and the underlying common stock and the ability of any person or entity to engage in market-making activities with respect to the debentures and the underlying common stock. Under the registration rights agreement filed as an exhibit to the registration statement of which this prospectus is a part, we and the selling securityholders will be indemnified by the other against certain liabilities, including certain liabilities under the Securities Act, or will be entitled to contribution in connection with these liabilities. We have agreed to pay substantially all of the expenses incidental to the registration, offering and sale of the debentures and underlying common stock to the public other than commissions, fees and discounts of underwriters, brokers, dealers and agents. We estimate that the expenses for which we will be responsible in connection with this offering will be approximately $703,000. LEGAL MATTERS The validity of the debentures and common stock issuable upon conversion of the debentures offered by this prospectus will be passed upon for us by Simpson Thacher & Bartlett LLP, our counsel. EXPERTS The financial statements incorporated in this prospectus by reference to the Annual Report on Form 10-K for each of the two years in the period ended December 31, 2002 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. The consolidated financial statements of Wyeth for the year ended December 31, 2000 incorporated by reference in this prospectus and elsewhere in the Registration Statement have been audited by Arthur Andersen LLP, our previous independent public accountants, as indicated in their report with respect thereto, and are incorporated by reference in reliance upon the authority of said firm as experts in giving said report. Arthur Andersen LLP completed its audit of our consolidated financial statements at December 31, 2001 and 2000 and for each of the three years in the period ended December 31, 2001 and issued its report with respect to such consolidated financial statements on January 24, 2002. On June 15, 2002, Arthur Andersen LLP was convicted of obstruction of justice for activities relating to its previous work for Enron Corp., and Arthur Andersen LLP ceased to audit publicly held companies in August 2002. Investors in the securities which may be sold under any prospectus supplement may not be able to effectively recover against Arthur Andersen LLP for any claims they may have under securities or other laws as a result of Arthur Andersen LLP's previous role as our independent public accountants and as author of the audit report for the audited financial statements for the year ended December 31, 2000, incorporated by reference in this prospectus. 43 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
ESTIMATED AMOUNTS --------- Securities and Exchange Commission registration fee under the 1933 Act.............................................. $ 129,234 Printing and engraving expenses............................. $ 20,000 Legal fees and expenses..................................... $ 50,000 Rating agency fees.......................................... $ 379,000 Accountants' fees and expenses.............................. $ 100,000 Blue Sky fees and expenses.................................. $ -- Trustee fees and expenses................................... $ 20,000 Miscellaneous............................................... $ 4,850 --------- Total....................................................... $ 703,084 =========
- --------------- * Except for the Securities and Exchange Commission registration fee, all fees and expenses are estimated. All of the above fees and expenses will be borne by the Company. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Article Nine of the Company's Restated Certificate of Incorporation provides for the elimination of personal monetary liabilities of directors of the Company for breaches of certain of their fiduciary duties to the full extent permitted by Section 102(b)(7) of the General Corporation Law of Delaware (the "GCL"). Section 102(b)(7) of the GCL enables a corporation in its certificate of incorporation to eliminate or limit the personal liability of members of its board of directors to the corporation or its shareholders for monetary damages for violations of a director's fiduciary duty as a director. Such a provision has no effect on the availability of equitable remedies, such as an injunction or rescission, for breach of fiduciary duty. In addition, no such provision may eliminate or limit the liability of a director for breaching his or her duty of loyalty, failing to act in good faith, engaging in intentional misconduct or knowingly violating the law, paying an unlawful dividend or approving an illegal stock repurchase, or obtaining an improper personal benefit. Section 145 of the GCL provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation -- a "derivative action"), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceedings, had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of such action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation's by-laws, disinterested director vote, stockholder vote, agreement or otherwise. The Company's By-laws provide that the Company is authorized to provide indemnification and to advance expenses to its directors, officers and employees in respect of claims, actions, suits or proceedings based upon, arising from, relating to or by reason of the fact that any such director or officer serves in such capacity with the Company or at the request of the Company in any capacity with any other corporation or entity of which the Company is or was a stockholder, creditor or otherwise interested. II-1 The Company maintains directors' and officers' liability insurance which insures against liabilities that directors or officers of the Company may incur in such capacities. ITEM 16. EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 4.1 Indenture dated as of April 10, 1992 between American Home Products Corporation and Manufacturers Hanover Trust Company, as trustee (incorporated by reference to Exhibit 4-a to the Registrant's Registration Statement on Form S-3 (File No. 33-57339), filed on January 18, 1995). 4.2 Supplemental Indenture dated October 13, 1992 between American Home Products Corporation and Chemical Bank, as trustee (incorporated by reference to Exhibit 4-b to the Registrant's Registration Statement on Form S-3 (File No. 33-57339), filed on January 18, 1995). 4.3 Supplemental Indenture dated December 16, 2003 between Wyeth and JPMorgan Chase Bank, as trustee (filed herewith). 4.4 Registration Rights Agreement, dated December 16, 2003 between Wyeth and the Representatives of the Initial Purchasers (filed herewith). 4.5 Form of Floating Rate Convertible Senior Debenture due 2024 (included as Exhibit A to Exhibit 4.3) 5.1 Opinion of Simpson Thacher & Bartlett LLP as to legality of the debt securities (filed herewith). 12.1 Computation of Ratio of Earnings to Fixed Charges (incorporated by reference to Exhibit 12 to the Registrant's Annual Report on Form 10-K, filed on March 31, 2003). 12.2 Computation of Ratio of Earnings to Fixed Charges (incorporated by reference to Exhibit 12 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2003, filed on November 12, 2003). 23.1 Consent of PricewaterhouseCoopers LLP (filed herewith). 23.2 Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1). 24.1 Power of Attorney of Wyeth (filed herewith). 25 Form T-1 Statement of Eligibility of Trustee under the Trust Indenture Act of 1939, as amended, of JPMorgan Chase Bank, as trustee (filed herewith).
After reasonable efforts, the Company has not been able to obtain the written consent of Arthur Andersen LLP, the Company's former independent public accountants, to the incorporation by reference into this registration statement of its report covering the Company's financial statements for the year ended December 31, 2000. The Company has dispensed with the requirement to file the written consent of Arthur Andersen LLP in reliance on Rule 437a promulgated under the Securities Act of 1933, as amended. Since the Company has not been able to obtain the written consent of Arthur Andersen LLP, investors will not be able to recover against Arthur Andersen LLP under Section 11 of the Securities Act for any untrue statements of a material fact contained in the financial statements for the year ended December 31, 2000 audited by Arthur Andersen LLP incorporated by reference herein or any omissions to state a material fact required to be stated therein. ITEM 17. UNDERTAKINGS The undersigned registrant hereby undertakes: (1) to file during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by section 10(a)(3) of the Securities Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or II-2 in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement; (2) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby further undertakes that for purposes of determining any liability under the Securities Act: (1) each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of any employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (2) the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(B)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and (3) each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, except pursuant to the insurance policies referred to in Item 15, the registrant has been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by such registrant of expenses incurred or paid by a director, officer or controlling person of such registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Madison, state of New Jersey, on February 3, 2004. WYETH By: /s/ KENNETH J. MARTIN ------------------------------------ Name: Kenneth J. Martin Title: Executive Vice President and Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dated indicated.
SIGNATURE TITLE DATE --------- ----- ---- Principal Executive Officers: /s/ ROBERT ESSNER* Chairman of the Board, President February 3, 2004 - -------------------------------------- and Chief Executive Officer Robert Essner Principal Financial Officer: /s/ KENNETH J. MARTIN Executive Vice President and February 3, 2004 - -------------------------------------- Chief Financial Officer Kenneth J. Martin Principal Accounting Officer: /s/ PAUL J. JONES* Vice President and Controller February 3, 2004 - -------------------------------------- Paul J. Jones Directors: /s/ CLIFFORD L. ALEXANDER, JR.* Director February 3, 2004 - -------------------------------------- Clifford L. Alexander, Jr. /s/ FRANK A. BENNACK, JR.* Director February 3, 2004 - -------------------------------------- Frank A. Bennack, Jr.
II-4
SIGNATURE TITLE DATE --------- ----- ---- /s/ RICHARD L. CARRION* Director February 3, 2004 - -------------------------------------- Richard L. Carrion /s/ JOHN D. FEERICK* Director February 3, 2004 - -------------------------------------- John D. Feerick /s/ ROBERT S. LANGER* Director February 3, 2004 - -------------------------------------- Robert S. Langer /s/ JOHN P. MASCOTTE* Director February 3, 2004 - -------------------------------------- John P. Mascotte /s/ MARY LAKE POLAN, M.D., PH.D., M.P.H.* Director February 3, 2004 - -------------------------------------- Mary Lake Polan, M.D., Ph.D., M.P.H. Director February 3, 2004 - -------------------------------------- Ivan G. Seidenberg /s/ WALTER V. SHIPLEY* Director February 3, 2004 - -------------------------------------- Walter V. Shipley /s/ JOHN R. TORELL, III* Director February 3, 2004 - -------------------------------------- John R. Torell, III *By: /s/ KENNETH J. MARTIN Executive Vice President and February 3, 2004 ------------------------------ Chief Financial Officer Kenneth J. Martin, Attorney-in-Fact
II-5 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 4.3 Supplemental Indenture dated December 16, 2003 between Wyeth and JPMorgan Chase Bank, as trustee (filed herewith). 4.4 Registration Rights Agreement, dated December 16, 2003 between Wyeth and the Representatives of the Initial Purchasers (filed herewith). 5.1 Opinion of Simpson Thacher & Bartlett LLP as to legality of the debt securities (filed herewith). 23.1 Consent of PricewaterhouseCoopers LLP (filed herewith). 24.1 Power of Attorney of Wyeth (filed herewith). 25 Form T-1 Statement of Eligibility of Trustee under the Trust Indenture Act of 1939, as amended, of JPMorgan Chase Bank, as trustee (filed herewith).
EX-4.3 3 y93495exv4w3.txt SUPPLEMENTAL INDENTURE EXHIBIT 4.3 FOURTH SUPPLEMENTAL INDENTURE, dated as of December 16, 2003 (this "FOURTH SUPPLEMENTAL INDENTURE"), between WYETH (as successor to AMERICAN HOME PRODUCTS CORPORATION), a Delaware corporation (the "ISSUER") and JPMORGAN CHASE BANK (as successor to MANUFACTURERS HANOVER TRUST COMPANY), a banking 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 a new series of Securities (the "DEBENTURES") to be issued under the Indenture in an aggregate principal amount of up to $1,020,000,000, which may be authenticated and delivered as provided in the Indenture; WHEREAS, the Issuer desires to supplement the provisions of the Indenture to provide for the issuance of the Debentures under the terms of the Indenture as supplemented hereby; WHEREAS, Section 8.1(e) of the Indenture expressly permits the Issuer and the Trustee to enter into one or more supplemental indentures for the purposes of establishing the forms and terms of Debentures to be issued under the Indenture without the consent of the Holders of any Debentures 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 Fourth Supplemental Indenture; and WHEREAS, all conditions and requirements necessary to make this Fourth 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: ARTICLE 1 DEFINITIONS Section 1.01 . All terms contained in this Fourth 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. In the event of any inconsistency between the Indenture and this Fourth Supplemental Indenture, this Fourth Supplemental Indenture shall govern. The words "herein," "hereof," "hereunder," and words of similar import shall refer to this Fourth Supplemental Indenture. Section 1.02 . Unless the context otherwise requires, the following terms shall have the following meanings: (a) Definitions. "ADDITIONAL INTEREST" has the meaning specified in the Registration Rights Agreement. "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 or cause the direction of 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. "APPLICABLE RATE" means, for any Interest Period, a rate equal to 6-Month LIBOR determined on the LIBOR Determination Date relating to the Interest Reset Date for such Interest Period, minus 0.50%, provided that in no event shall the Applicable Rate be less than 0%. The Applicable Rate for the first Interest Period shall be 0.73625%. "BANKRUPTCY LAW" means Title 11, United States Code, or any similar Federal or state law for the relief of debtors. "BUSINESS DAY" means any day other than a Saturday, a Sunday, a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close; provided such day is also a London banking day. "COMMON STOCK" shall mean the shares of Common Stock, $0.33-1/3 par value, of the Issuer as it exists on the date of this Fourth Supplemental Indenture, or any other shares of Capital Stock of the Issuer into which the Common Stock shall be reclassified or changed. 2 "CONVERSION SETTLEMENT DATE" means (i) the Conversion Date or (ii) if the Issuer elects to pay cash in lieu of Common Stock pursuant to Section 5.03, the Business Day following the final day of the Cash Settlement Averaging Period. "CONVERSION PRICE" means, as of any date of determination, a dollar amount derived by dividing $1,000 principal amount of Debentures by the Conversion Rate in effect on such date. "CONVERSION RATE" means 16.5590 shares of Common Stock per $1,000 principal amount of Debentures, subject to adjustment pursuant to Section 5.07. "CUSTODIAN" means the Trustee or any Person appointed by the Trustee to act as custodian of Registered Global Securities for the Depositary. "DEBENTURES" or "DEBENTURE" means any of the Issuer's Floating Rate Convertible Senior Debentures due 2024, as amended or supplemented from time to time, issued under this Fourth Supplemental Indenture. "DEFAULT" means any event which is, or after notice or passage of time or both would be, an Event of Default. "DEPOSITARY" means, the clearing agency registered under the Exchange Act that is designated to act as the Depositary for the Registered Global Securities. The Depository Trust Company shall be the initial Depositary, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Fourth Supplemental Indenture, and thereafter, "DEPOSITARY" shall mean or include such successor. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder. "FOURTH SUPPLEMENTAL INDENTURE" means this supplemental indenture, as amended from time to time in accordance with the terms hereof. "INDENTURE" has the meaning set forth in the recitals herein. "INITIAL PURCHASERS" has the meaning set forth in the Purchase Agreement. "INTEREST PAYMENT DATE" means January 15 and July 15 of each year, subject to Section 2.13 hereof, commencing July 15, 2004; provided that, if any Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall be postponed to the next succeeding Business Day, except, if such Business Day falls in the next succeeding calendar month, such Interest Payment Date will be the immediately preceding Business Day. 3 "INTEREST PERIOD" means the period from and including the most recent Interest Payment Date to which interest has been paid or duly made available for payment (or December 16, 2003 if no interest has been paid or been duly made available for payment) to, but excluding, the next succeeding Interest Payment Date, or any earlier Fundamental Change Purchase Date. "INTEREST RESET DATE" means each Interest Payment Date. "ISSUE DATE" of any Debenture means the date on which the Debenture was originally issued or deemed issued as set forth on the face of the Debenture. "ISSUER" means the party named as the "ISSUER" in the first paragraph of this Fourth Supplemental Indenture until a successor replaces it pursuant to the applicable provisions of this Fourth Supplemental Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any such subsequent successor or successors. "ISSUER REQUEST" or "ISSUER ORDER" means a written request or order signed in the name of the Issuer by any Officer and delivered to the Trustee. "LAST REPORTED SALE PRICE" of the shares of Common Stock on any date means the closing sale price per share (or, if no closing sale price is reported, the average of the bid and asked prices or, if more than one in either case, the average of the average bid and the average asked prices) on such date as reported in composite transactions on the principal United States securities exchange on which shares of Common Stock are traded or, if the shares of Common Stock are not listed on a United States national or regional securities exchange, as reported by Nasdaq. The Last Reported Sale Price will be determined without reference to after-hours or extended market trading. If the shares of Common Stock are not listed for trading on a U.S. national or regional securities exchange and not reported by the Nasdaq National Market on the relevant date, the Last Reported Sale Price will be the last quoted bid for the shares of Common Stock in the over-the-counter market on the relevant date as reported by the National Quotation Bureau or similar organization. If the shares of Common Stock are not so quoted, the Last Reported Sale Price will be the average of the midpoint of the last bid and asked prices for the shares of Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Issuer for this purpose. If during a period applicable for calculating "LAST REPORTED SALE PRICE" pursuant to the definition in the preceding paragraph, an issuance, distribution, subdivision or combination occurs requiring an adjustment to the Conversation Rate pursuant to Section 5.07, "LAST REPORTED SALE PRICE" shall be calculated for such period in a manner determined by the Board of Directors to reflect the 4 impact of such issuance, distribution, subdivision or combination on the price of the Common Stock during such period. "LEGAL HOLIDAY" means a day that is not a Business Day. "LIBOR DETERMINATION DATE" means the second London banking day preceding the related Interest Reset Date. "LONDON BANKING DAY" means a day on which commercial banks are open for business, including dealings in United States dollars, in London, England. "MONEYLINE TELERATE PAGE 3750" means the display on Moneyline Telerate (or any successor service) on such page (or any other page as may replace such page on such service) for the purpose of displaying the London interbank rates of major banks for United States dollars. "NASDAQ" means the National Association of Securities Dealers Automated Quotation System. "OFFICER" means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, or the Secretary of the Issuer. "PURCHASE AGREEMENT" means the Purchase Agreement dated as of December 10, 2003 among the Issuer and Citigroup Global Markets Inc. and J.P. Morgan Securities Inc. as representatives of the initial purchasers named therein. "REDEMPTION DATE" means the date specified for redemption of the Debentures in accordance with the terms of the Debentures and this Fourth Supplemental Indenture. "REDEMPTION PRICE" means, when used with respect to any Debenture to be redeemed, 100% of the principal amount of such Debenture as of the Redemption Date, plus accrued and unpaid interest (including Additional Interest, if any) to, but excluding, the Redemption Date. "REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement dated as of December 16, 2003 among the Issuer, Citigroup Global Markets Inc. and J.P. Morgan Securities Inc. as representatives of the Initial Purchasers. "REGULAR RECORD DATE" for the interest payable on any Interest Payment Date means the January 1 or July 1, as the case may be, immediately preceding such Interest Payment Date. 5 "RULE 144A" means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time. "SECURITIES ACT" means the Securities Act of 1933, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder. "SECURITY REGISTER" means the register maintained by the Registrar that evidences ownership of the Debentures. "SPECIAL RECORD DATE" means, for the payment of any Defaulted Interest, the date fixed by the Trustee pursuant to Section 2.11. "TIA" means the Trust Indenture Act of 1939 as in effect on the date of this Fourth Supplemental Indenture, provided, however, that in the event the TIA is amended after such date, TIA means, to the extent required by any such amendment, the TIA as so amended. "TRADING DAY" means a day during which trading in securities generally occurs on the New York Stock Exchange or, if the Common Stock is not listed on the New York Stock Exchange, on the principal other national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not listed on a national or regional securities exchange, on Nasdaq or, if the Common Stock is not quoted on Nasdaq, on the principal other market on which the Common Stock is then traded. "TRUSTEE" means the party named as the "TRUSTEE" in the first paragraph of this Fourth Supplemental Indenture until a successor replaces it pursuant to the applicable provisions of this Fourth Supplemental Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors. "VOTING STOCK," as applied to the stock (or the equivalent thereof) of any corporation, means stock (or the equivalent thereof) of any class or classes, however designated, having ordinary voting power for the election of a majority of the directors of such corporation, other than stock (or such equivalent) having such power only by reason of the happening of a contingency. "UNITED STATES" means the United States of America. The Commonwealth of Puerto Rico, the Virgin Islands and other territories and possessions are not part of the United States. "6-MONTH LIBOR," as determined by the Issuer, means with respect to any Interest Period: i. the rate for six-month deposits in United States dollars commencing on the related Interest Reset Date, that appears on the 6 Moneyline Telerate Page 3750 as of 11:00 A.M., London time, on the LIBOR Determination Date for such Interest Period, or ii. if no rate appears on the particular LIBOR Determination Date for such Interest Period on the Moneyline Telerate Page 3750, the rate calculated by the Issuer as the arithmetic mean of at least two offered quotations obtained by the Issuer after requesting the principal London offices of each of four major reference banks in the London interbank market to provide the Issuer with its offered quotation for deposits in United States dollars for the period of six months, commencing on the related Interest Reset Date, to prime banks in the London interbank market at approximately 11:00 A.M., London time, on that LIBOR Determination Date and in a principal amount that is representative for a single transaction in United States dollars in that market at that time, or iii. if fewer than two offered quotations referred to in clause (ii) are provided as requested, the rate calculated by the Issuer as the arithmetic mean of the rates quoted at approximately 11:00 A.M., New York time, on the particular LIBOR Determination Date by three major banks in The City of New York selected by the Issuer for loans in United States dollars to leading European banks for a period of six months commencing on the related Interest Reset Date, and in a principal amount that is representative for a single transaction in United States dollars in that market at that time, or iv. if the banks so selected by the Issuer are not quoting as mentioned in clause (iii), 6-month LIBOR in effect on the preceding LIBOR Determination Date (or 0.73625% per annum in the case of the Interest Reset Date on July 15, 2004). (b) Other Definitions.
TERM DEFINED IN SECTION ---- ------------------ "Adjustment Event".................................................. 5.07(l) "Agent Members"..................................................... 2.09(f) "capital stock"..................................................... 7.01(a) "Cash Amount"....................................................... 5.03(a)(iii) "Cash Settlement Averaging Period".................................. 5.03(a)(ii)(B) "Cash Settlement Notice Period"..................................... 5.03(a) "Continuing Director"............................................... 7.01(a) "Conversion Agent".................................................. 2.04 "Conversion Date"................................................... 5.02 "Conversion Obligation"............................................. 5.01(a)
7 "Conversion Retraction Period"......................................... 5.03(a) "Conversion Settlement Distribution"................................... 5.03(a) "Current Market Price"................................................. 5.07(h)(i) "Defaulted Interest"................................................... 2.11 "Determination Date"................................................... 5.07(l) "Distributed Assets or Securities" .................................... 5.07(d) "Dividend Threshold Amount"............................................ 5.07(e) "Ex-Dividend Date"..................................................... 5.07(g)(i) "Ex-Dividend Time"..................................................... 5.01(d)(i) "Expiration Time"...................................................... 5.07(f) "Fair Market Value".................................................... 5.07(h)(ii) "Final Notice Date".................................................... 5.03(a) "Fundamental Change"................................................... 7.01(a) "Fundamental Change Purchase Date"..................................... 7.01(a) "Fundamental Change Purchase Notice"................................... 7.01(c) "Fundamental Change Purchase Price".................................... 7.01(a) "Legend"............................................................... 2.06(e) "Moody's".............................................................. 5.01(e) "non-electing share"................................................... 5.10 "Notice of Conversion.................................................. 5.02 "Paying Agent"......................................................... 2.04 "Publicly Traded Securities"........................................... 7.01(a) "Purchase Date"........................................................ 6.01(a) "Purchased Shares" .................................................... 5.07(f)(i) "Purchase Notice"...................................................... 6.02(a) "Purchase Price"....................................................... 6.02 "Record Date".......................................................... 5.07(h)(iii) "Registered Global Security"........................................... 2.01 "Rights"............................................................... 5.12 "Rights Agreement"..................................................... 5.12 "S&P".................................................................. 5.01(e) "Stated Maturity"...................................................... 2.01 "Trigger Event" ....................................................... 5.07(d)
ARTICLE 2 GENERAL TERMS AND CONDITIONS OF THE DEBENTURES Section 2.01 Designation, Form And Dating. The Debentures shall be a series of senior unsecured debentures and are hereby authorized and designated as "FLOATING RATE CONVERTIBLE SENIOR DEBENTURES DUE 2024." 8 The Debentures and the Trustee's certificate of authentication to be borne by such Debentures shall be substantially in the form set forth in Exhibit A. The terms and provisions contained in the form of Debentures attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Fourth Supplemental Indenture and, to the extent applicable, the Issuer and the Trustee, by their execution and delivery of this Fourth Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. Any of the Debentures may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the Officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Fourth Supplemental Indenture, the Indenture, or as may be required by the Trustee, the Depositary or by the National Association of Securities Dealers, Inc. in order for the Debentures to be tradable on The PORTAL(R) Market or as may be required for the Securities to be tradable on any other market developed for trading of securities pursuant to Rule 144A or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Debentures may be listed, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Debentures are subject. Subject to Section 2.09 hereof, so long as the Debentures are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, or otherwise contemplated by the Indenture, all of the Debentures will be represented by one or more Debentures in global form registered in the name of the Depositary or the nominee of the Depositary (a "REGISTERED GLOBAL SECURITY"). The transfer and exchange of beneficial interests in any such Registered Global Security shall be effected through the Depositary in accordance with this Fourth Supplemental Indenture and the applicable procedures of the Depositary. Each Registered Global Security shall represent such of the outstanding Debentures as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Debentures from time to time endorsed thereon and that the aggregate principal amount of outstanding Debentures represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions, purchases or conversions of such Debentures. Any endorsement of a Registered Global Security to reflect the amount of any increase or decrease in the principal amount of outstanding Debentures represented thereby shall be made by the Trustee in accordance with the standing instructions and procedures existing between the Depositary and the Trustee. Each Debenture shall be dated the date of its authentication. 9 Section 2.02 Stated Maturity; Interest. The Stated Maturity of the Debentures shall be January 15, 2024. The Debentures shall bear interest at the Applicable Rate as set forth in the form of Debenture attached as Exhibit A hereto. The Debentures shall bear Additional Interest, if any, as set forth in the Registration Agreement. Section 2.03 Limit On Amount Of Series. The aggregate principal amount of Debentures which may be authenticated and delivered under this Fourth Supplemental Indenture is limited to $1,020,000,000. Section 2.04 Registrar, Paying Agent, Conversion Agent And Trustee. The Issuer shall maintain an office or agency where Debentures may be presented for registration of transfer or for exchange ("REGISTRAR"), an office or agency where Debentures may be presented for purchase or payment ("PAYING AGENT") and an office or agency where Debentures may be presented for conversion ("CONVERSION AGENT"). The Registrar shall keep a register of the Debentures and of their transfer and exchange. The Issuer may have one or more co-registrars, one or more additional paying agents and one or more additional conversion agents. The term Paying Agent includes any additional paying agent and the term Conversion Agent includes any additional conversion agent. The Issuer shall notify the Trustee in writing of the name and address of any such agent. If the Issuer fails to maintain a Registrar, Paying Agent, Trustee or Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 6.6 of the Indenture. The Issuer or any Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar, Trustee, Conversion Agent or co-registrar. The Issuer initially appoints the Trustee as Registrar, Conversion Agent and Paying Agent in connection with the Debentures. Section 2.05 Paying Agent to Hold Money and Debentures in Trust. Except as otherwise provided herein, on or prior to each due date of payments in respect of any Debenture, the Issuer shall deposit with the Paying Agent a sum of money (in immediately available funds if deposited on the due date) or, if applicable, Common Stock sufficient to make such payments when so becoming due. The Issuer shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders and/or the Trustee all money and Common Stock held by the Paying Agent for the making of payments in respect of the Debentures and shall notify the Trustee of any Default by the Issuer in making any such payment. At any time during the continuance of any such Default, the Paying Agent shall, upon the written request of the Trustee, forthwith pay to the Trustee all money and Common Stock so held in trust. If the Issuer, a Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall segregate the money and Common Stock held by it as Paying 10 Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying Agent to pay all money and Common Stock held by it to the Trustee and to account for any funds and Common Stock disbursed by it. Upon doing so, the Paying Agent shall have no further liability for the money or Common Stock. Section 2.06 Transfer And Exchange. Notwithstanding anything in the contrary in the Indenture, this Section 2.06 shall apply to the Debentures in lieu of Section 2.8 of the Indenture. Subject to Section 2.09 and Section 2.10 hereof, upon surrender for registration or transfer of any Debenture, together with a written instrument of transfer satisfactory to the Registrar duly executed by the Holder or such Holder's attorney duly authorized in writing, at the office or agency of the Issuer designated as Registrar or co-registrar pursuant to Section 2.04, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Debentures of any authorized denomination or denominations, of a like aggregate principal amount. The Issuer shall not charge a service charge for any registration of transfer or exchange, but the Issuer or the Trustee may require payment of a sum sufficient to pay all taxes, assessments or other governmental charges that may be imposed in connection with the registration of transfer or exchange of the Debentures from the Holder requesting such registration of transfer or exchange. The Issuer shall not be required to make, and the Registrar need not register, transfers or exchanges of Debentures selected for redemption (except, in the case of Debentures to be redeemed in part, the portion thereof not to be redeemed) or any Debentures in respect of which a Purchase Notice or Fundamental Change Purchase Notice has been given and not withdrawn by the Holder thereof in accordance with the terms of this Fourth Supplemental Indenture (except, in the case of Debentures to be purchased in part, the portion thereof not to be purchased) or any Debentures for a period of 15 days before the mailing of a notice of redemption of Debentures to be redeemed. (a) Notwithstanding any provision to the contrary herein, so long as a Registered Global Security remains outstanding and is held by or on behalf of the Depositary, transfers of a Registered Global Security, in whole or in part, shall be made only in accordance with Section 2.09 and Section 2.10 and this Section 2.06(a). Transfers of a Registered Global Security shall be limited to transfers of such Registered Global Security in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor's nominee. (b) Successive registrations and registrations of transfers and exchanges as aforesaid may be made from time to time as desired, and each such registration shall be noted on the register for the Debentures. (c) Any Registrar appointed pursuant to Section 2.06(a) hereof shall provide to the Trustee such information as the Trustee may reasonably require in 11 connection with the delivery by such Registrar of Debentures upon registration of transfer or exchange of Debentures. (d) No Registrar shall be required to make registrations of transfer or exchange of Debentures during any periods designated in the text of the Debentures or in this Fourth Supplemental Indenture as periods during which such registration of transfers and exchanges need not be made. (e) Prior to the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision), if Debentures are issued upon the transfer, exchange or replacement of Debentures subject to restrictions on transfer and bearing the legends on the form of Debenture attached hereto as Exhibit A setting forth such restrictions (collectively, the "LEGEND"), or if a request is made to remove the Legend on a Debenture, the Debentures so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Issuer and the Registrar such satisfactory evidence, which shall include an Opinion of Counsel, as may be reasonably required by the Issuer and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144 under the Securities Act or that such Debentures are not "restricted" within the meaning of Rule 144 under the Securities Act. Upon (i) provision of such satisfactory evidence or (ii) notification by the Issuer to the Trustee and Registrar of the sale of such Debenture pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Issuer, shall authenticate and deliver a Debenture that does not bear the Legend. If the Legend is removed from the face of a Debenture and the Debenture is subsequently held by an Affiliate of the Issuer, the Legend shall be reinstated. Any shares of Common Stock issued upon conversion of Debentures that bear the Legend shall bear a restricted legend substantially identical to the Legend unless otherwise required by applicable law. Nothing in this Fourth Supplemental Indenture or in the Debentures shall prohibit the sale or other transfer of any Debentures (including beneficial interests in Registered Global Securities) to the Issuer or any of its Subsidiaries. Section 2.07 Outstanding Debentures; Determinations of Holders' Actions. Debentures outstanding at any time are all the Debentures authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those delivered to it pursuant to Section 2.9 of the Indenture and those described in this Section 2.07 as not outstanding. A Debenture does not cease to be outstanding because the Issuer or an Affiliate thereof holds the Debenture; provided, however, that in determining whether the Holders of the requisite principal amount of Debentures have given or concurred in any request, demand, authorization, direction, notice, consent or waiver hereunder, Debentures owned by the Issuer or any other obligor upon the Debentures or any Affiliate of 12 the Issuer or such other obligor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Debentures which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Subject to the foregoing, only Debentures outstanding at the time of such determination shall be considered in any such determination (including, without limitation, determinations regarding remedies and supplemental indentures). If a Debenture is replaced pursuant to Section 2.9 of the Indenture, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Debenture is held by a protected purchaser. If the Paying Agent holds, in accordance with this Fourth Supplemental Indenture, on a Redemption Date, or on the Business Day following a Purchase Date or a Fundamental Change Purchase Date, or on Stated Maturity, money or securities, if permitted hereunder, sufficient to pay Debentures payable on that date, then immediately after such Redemption Date, Purchase Date, Fundamental Change Purchase Date or Stated Maturity, as the case may be, such Debentures shall cease to be outstanding and interest (including Additional Interest, if any) on such Debentures shall cease to accrue; provided, that if such Debentures are to be redeemed, notice of such redemption has been duly given pursuant to this Fourth Supplemental Indenture or provision therefor satisfactory to the Trustee has been made. If a Debenture is converted in accordance with Article 5, then from and after the time of conversion on the Conversion Date, such Debenture shall cease to be outstanding and interest shall cease to accrue on such Debenture, unless the Holder of such Debenture retracts the Notice of Conversion pursuant to Section 5.02. Section 2.08 Persons Deemed Owners. Prior to due presentment of a Debenture for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name such Debenture is registered as the owner of such Debenture for the purpose of receiving payment of principal of the Debenture or the payment of any Redemption Price, Purchase Price or Fundamental Change Purchase Price in respect thereof, and interest thereon, for the purpose of conversion and for all other purposes whatsoever, whether or not such Debenture be overdue, and neither the Issuer, the Trustee nor any agent of the Issuer or the Trustee shall be affected by notice to the contrary. Notwithstanding the foregoing or anything to the contrary in the Indenture, any owner of a beneficial interest in a Registered Global Security may directly enforce, without any consent, proxy, notice or participation of any kind from the Depositary or any other Person, the exchange of such owner's beneficial interest for definitive Debentures issued in registered form set forth in Section 2.09 hereof. 13 Section 2.09 Registered Global Securities. (a) Notwithstanding any other provisions of this Fourth Supplemental Indenture, the Indenture or the Debentures, transfers of a Registered Global Security, in whole or in part, shall be made only in accordance with Section 2.06 and this Section 2.09. A Registered Global Security may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person may be registered; provided that this clause (a) shall not prohibit any transfer of a Debenture that is issued in exchange for a Registered Global Security but is not itself a Registered Global Security. No transfer of a Debenture to any Person shall be effective under this Fourth Supplemental Indenture unless and until such Debenture has been registered in the name of such Person. (b) Notwithstanding any other provisions of this Fourth Supplemental Indenture, the Indenture or the Debentures, a Registered Global Security shall not be exchanged in whole or in part for a Debenture registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Registered Global Security may be exchanged for Debentures registered in the names of any person designated by the Depositary in the event that (i) the Depositary has notified the Issuer that it is unwilling, unable or ineligible to continue as Depositary for such Registered Global Security and a successor Depositary is not appointed by the Issuer within 90 days, (ii) the Issuer decides to discontinue the use of the system of book-entry transfer through the Depositary (or any successor Depositary), (iii) any holder of a beneficial interest in such Registered Global Security through the Depositary requests to exchange such beneficial interest for a Debenture in registered form in accordance with customary procedures of the Depositary or (iv) an Event of Default has occurred and is continuing. Any Registered Global Security exchanged pursuant to clause (a) above shall be so exchanged in whole and not in part. Any Debenture issued in exchange for a Registered Global Security or any portion thereof shall be a Registered Global Security; provided that any such Debenture so issued that is registered in the name of a Person other than the Depositary or a nominee thereof shall not be a Registered Global Security. (c) Debentures issued in exchange for a Registered Global Security or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have a principal amount equal to that of such Registered Global Security or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable Legends provided for herein. Any Registered Global Security to be exchanged in whole shall be surrendered by the Depositary to the Trustee or the Registrar. With regard to any Registered Global Security to be exchanged in part, either such Registered Global Security shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its 14 nominee with respect to such Registered Global Security, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Debenture issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof. (d) Subject to the provisions of Section 2.09(f) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Fourth Supplemental Indenture or the Debentures. (e) In the event of the occurrence of any of the events specified in Section 2.09(b) above, the Issuer will promptly make available to the Trustee a reasonable supply of certificated Debentures in definitive, fully registered form, without interest coupons. (f) Neither any members of, or participants in, the Depositary (collectively, the "AGENT MEMBERS") nor any other Persons on whose behalf Agent Members may act shall have any rights under this Fourth Supplemental Indenture with respect to any Registered Global Security registered in the name of the Depositary or any nominee thereof, or under any such Registered Global Security, and the Depositary or such nominee, as the case may be, may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner and holder of such Registered Global Security for all purposes whatsoever; provided, however, that any Agent Members or any other holder of a beneficial interest in such Registered Global Security may directly enforce, without the proxy, certification, consent or involvement of the Depositary, any request to exchange such interest in such Registered Global Security for a registered Debenture in such person's name in accordance with clause (b)(iii) above. Notwithstanding the foregoing, nothing herein shall prevent the Issuer or the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a holder of any Debenture. Section 2.10 Legends. (a) Subject to the succeeding paragraph, every Debenture shall be subject to the restrictions on transfer provided in the Legend including the delivery of a certification or an Opinion of Counsel as set forth in the Legend, if so requested by the Issuer or the Registrar. Whenever any Security bearing the 15 Legend is presented or surrendered for registration of transfer or for exchange for a Security registered in a name other than that of the Holder, such Security must be accompanied by a certificate in substantially the form set forth in the Assignment Form, dated the date of such surrender and signed by the Holder of such Security, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Security not so accompanied by a properly completed certificate. (b) Beneficial interests in any Registered Global Security bearing the Legend shall be subject to restrictions on transfer comparable to those set forth therein to the extent required by the Securities Act. Beneficial interests in the Registered Global Security bearing the Legend may be transferred to persons who take delivery thereof in the form of a beneficial interest in the Registered Global Securities bearing the Legend or Registered Global Securities not bearing the Legend in accordance with the transfer restrictions set forth in the Legend. To the extent required to comply with the Securities Act and any applicable procedures of the Depositary, transfers of an interest in the Registered Global Securities bearing the Legend to Registered Global Securities not bearing the Legend shall be accompanied by a certificate in substantially the form set forth in the Assignment Form. (c) The restrictions imposed by the Legend upon the transferability of any Debenture shall cease and terminate when such Debenture has been sold pursuant to an effective registration statement under the Securities Act or transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto) or, if earlier, upon the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision). Any Debenture as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Debenture for exchange to the Registrar in accordance with the provisions of this Section 2.10 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Issuer, addressed to the Issuer and the Registrar and in form acceptable to the Issuer, to the effect that the transfer of such Debenture has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Debenture, of like tenor and aggregate principal amount, which shall not bear the restrictive Legend. The Issuer shall inform the Trustee of the effective date of any registration statement registering the Debentures under the Securities Act. The Trustee and the Registrar shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel or registration statement. 16 (d) As used in the preceding two paragraphs of this Section 2.10, the term "TRANSFER" encompasses any sale, pledge, transfer, hypothecation or other disposition of any Debenture. Section 2.11. Payment of Interest; Interest Rights Preserved. Interest, including Additional Interest, if any, on any Debenture that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Debenture (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Issuer maintained for such purpose pursuant to Section 3.2 of the Indenture. However, the Issuer may make such interest payments by check payable to or upon the written order of the Person entitled thereto pursuant to Section 3.1 of the Indenture, to the address of such Person as it appears on the Debenture Register; provided that, notwithstanding Section 3.1 of the Indenture, payment by wire transfer of immediately available funds will be required with respect to principal of and interest on all Registered Global Securities and all Debentures of Holders of more than $2,000,000 aggregate principal amount of Debentures that have requested such method of payment and provided wire transfer instructions to the Issuer or the Paying Agent at least five Business Days prior to the applicable Interest Payment Date. Any interest on any Debenture that is payable but is not punctually paid or duly provided for on any Interest Payment Date (herein called "DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in clause (a) or (b) below: (a) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Debentures (or Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Debenture and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such 17 Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Debentures at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Debentures (or Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b). (b) The Issuer may make payment of any Defaulted Interest on the Debentures in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Debentures may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section, each Debenture delivered under this Fourth Supplemental Indenture upon registration of transfer of or in exchange for or in lieu of any other Debenture shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debenture. Section 2.12. Discharge of Liability on Debentures. Notwithstanding anything to the contrary in Section 10.1(A) of the Indenture, the following provision shall apply to the Debentures. When (i) the Issuer delivers to the Trustee or any Paying Agent all outstanding Debentures (other than Debentures replaced pursuant to Section 2.07) for cancellation or (ii) all outstanding Debentures have become due and payable, whether at Stated Maturity, any Redemption Date, any Purchase Date, a Fundamental Change Purchase Date, or upon conversion or otherwise, and the Issuer deposits with the Trustee or any Paying Agent cash or, if expressly permitted by the terms of the Debentures, Common Stock or direct obligations of the United States of America, backed by its full faith and credit, sufficient to pay all amounts due and owing on all outstanding Debentures (other than Debentures replaced pursuant to Section 2.07), and if in either case the Issuer pays all other sums payable hereunder by the Issuer, then this Fourth Supplemental Indenture shall, subject to Section 6.6 of the Indenture, cease to be of further effect, except for the indemnification of the Trustee, which shall survive such satisfaction and discharge. The Trustee shall join in the execution of a document prepared by the Issuer acknowledging satisfaction and discharge of this Fourth Supplemental Indenture on demand of the Issuer accompanied by an Officers' Certificate and Opinion of Counsel and at the reasonable cost and expense of the Issuer. Sections 10.1(B) and 10.1(C) of the Indenture shall not apply to the Fourth Supplemental Indenture and the Debentures. 18 Section 2.13. Legal Holiday. Notwithstanding anything to the contrary in the Indenture and subject to the next two succeeding sentences, if any specified date (including a date for giving notice) on which action is to be taken under this Indenture is a Legal Holiday, the action shall be taken on the next succeeding day that is not a Legal Holiday. In any case where an Interest Payment Date (other than an Interest Payment Date coinciding with the Stated Maturity or earlier Redemption Date, Purchase Date or Fundamental Change Purchase Date) of a Debenture falls on a day that is not a Business Day, such Interest Payment Date will be postponed to the next succeeding Business Day and no interest on such payment will accrue for the period from and after the Interest Payment Date to such next succeeding Business Day, provided that, if such Business Day falls in the next succeeding calendar month, the Interest Payment Date will be the Business Day immediately preceding such Interest Payment Date. If the Stated Maturity, Redemption Date, Purchase Date or Fundamental Change Purchase Date of a Debenture would fall on a day that is not a Business Day, the required payment of interest, if any, and principal will be made on the next succeeding Business Day and no interest on such payment will accrue for the period from and after the Stated Maturity, Redemption Date, Purchase Date or Fundamental Change Purchase Date to such next succeeding Business Day. ARTICLE 3 REMEDIES Section 3.01. Additional Events of Default. Pursuant to Section 5.1(f) of the Indenture, in addition to the Events of Default set forth in the Indenture, the following (without duplication to those set forth in the Indenture) shall constitute Events of Default with respect to the Debentures: (a) the Issuer fails to deliver Common Stock, or cash in lieu thereof, or a combination of the foregoing, upon conversion of any Debenture and such failure continues for 10 days following the payment date or settlement date for such cash or Common Stock; and (b) the Issuer fails to provide notice of a Fundamental Change when due and such failure continues for 10 days following written notice to the Issuer from the Trustee or Holders of not less than 25% in aggregate principal amount of the Debentures. ARTICLE 4 REDEMPTION OF DEBENTURES Section 4.01. Right to Redeem; Notices to Trustee. Prior to July 20, 2009, the Debentures shall not be redeemable at the option of the Issuer. Beginning on 19 July 20, 2009 and until the Stated Maturity, the Debentures are redeemable for cash as a whole, or from time to time in part, at the option of the Issuer at the Redemption Price; provided that if the Redemption Date falls after a Regular Record Date but on or prior the next succeeding Interest Payment Date, accrued and unpaid interest (including Additional Interest, if any) shall be paid to the Holder of record as of the applicable Regular Record Date, rather than to the Holder presenting the Debenture for redemption. If the Issuer elects to redeem Debentures, it shall notify the Trustee in writing of the Redemption Date, the principal amount of Debentures to be redeemed and the Redemption Price. The Issuer shall give the notice by mail to the Trustee provided for in this Section 4.01 by an Issuer Order no later than the time it gives notice to the Holders; provided that if all of the Debentures are not Registered Global Securities, then the Issuer shall provide such notice not less than 40 days before the Redemption Date. Section 4.02. Selection of Debentures to Be Redeemed. If less than all the Debentures are to be redeemed, the Trustee shall select the Debentures to be redeemed pro rata or by lot or by any other method the Trustee considers fair and appropriate (so long as such method is not prohibited by the rules of any stock exchange on which the Debentures are then listed). The Trustee shall make the selection at least 20 days but not more than 60 days before the Redemption Date from outstanding Debentures not previously called for redemption. The Trustee may select for redemption portions of the principal amount of Debentures that have denominations larger than $1,000. Debentures and portions of them the Trustee selects shall be in principal amounts of $1,000 or an integral multiple of $1,000. Provisions of this Fourth Supplemental Indenture that apply to Debentures called for redemption also apply to portions of Debentures called for redemption. The Trustee shall notify the Issuer in writing promptly of the Debentures or portions of Debentures to be redeemed. If any Debenture selected for partial redemption is converted in part before the Business Day immediately preceding the Redemption Date, the converted portion of such Debenture shall be deemed (so far as may be) to be the portion selected for redemption. Debentures which have been converted during a selection of Debentures to be redeemed may be treated by the Trustee as outstanding for the purpose of such selection. Section 4.03. Notice Of Redemption. At least 20 days but not more than 60 days before a Redemption Date, the Issuer shall mail a notice of redemption by first-class mail, postage prepaid, to each Holder of Debentures to be redeemed. (a) The notice shall identify the Debentures to be redeemed (including the CUSIP numbers) and shall at a minimum state: 20 (i) the Redemption Date; (ii) the Redemption Price; (iii) the Conversion Rate; (iv) the name and address of the Paying Agent and Conversion Agent; (v) that Debentures called for redemption may be converted at any time before the close of business on the Business Day immediately preceding the Redemption Date; (vi) that Holders who want to convert Debentures must satisfy the requirements set forth in the applicable provisions of the Debentures; (vii) whether the Issuer will deliver cash, Common Stock or a combination of cash and Common Stock in the event a Holder converts Debentures called for redemption (which such election shall apply to all conversions of Debentures to the Business Day immediately preceding the Redemption Date); (viii) that Debentures called for redemption must be surrendered to the Paying Agent to collect the Redemption Price; (ix) if fewer than all the outstanding Debentures are to be redeemed, the certificate number and principal amounts of the particular Debentures to be redeemed; (x) that, unless the Issuer defaults in making payment of such Redemption Price, interest (including Additional Interest, if any) on Debentures called for redemption will cease to accrue on and after the Redemption Date; and (xi) the CUSIP number of the Debentures. (b) At the Issuer's request, the Trustee shall give the notice of redemption in the Issuer's name and at the Issuer's expense, provided that the Issuer makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to such notice of redemption. Section 4.04. Effect of Notice of Redemption. Once notice of redemption is given, Debentures called for redemption become due and payable on the Redemption Date and at the Redemption Price stated in the notice, except for Debentures which are converted in accordance with the terms of this Fourth 21 Supplemental Indenture. Upon surrender to the Paying Agent, such Debentures shall be paid at the Redemption Price stated in the notice. Section 4.05. Deposit of Redemption Price. Prior to 11:00 a.m., New York City time on the Redemption Date, the Issuer shall deposit with the Paying Agent (or if the Issuer or a Subsidiary or an Affiliate of either of them is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price of all Debentures to be redeemed on that date other than Debentures or portions of Debentures called for redemption which on or prior thereto have been delivered by the Issuer to the Trustee for cancellation or have been converted. The Paying Agent shall as promptly as practicable return to the Issuer any money not required for that purpose because of conversion of Debentures pursuant to Article 5. If such money is then held by the Issuer in trust and is not required for such purpose it shall be discharged from such trust. Section 4.06. Debentures Redeemed in Part. Upon surrender of a Debenture that is redeemed in part, the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder a new Debenture in an authorized denomination equal in principal amount to the unredeemed portion of the Debenture surrendered. ARTICLE 5 CONVERSION Section 5.01. Right To Convert. (a) Subject to and upon compliance with the provisions of this Fourth Supplemental Indenture the holder of any Debenture shall have the right, at such holder's option, to convert the principal amount of the Debenture, or any portion of such principal amount which is a multiple of $1,000, into fully paid and nonassessable shares of Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender of the Debenture so to be converted in whole or in part, together with any required funds, only under the circumstances described in this Section 5.01 and in the manner provided in Section 5.02. Notwithstanding any other provision of the Debentures or this Fourth Supplemental Indenture, all Holders' rights with respect to conversion of the Debentures and the Issuer's obligation to deliver shares of Common Stock at the Conversion Rate upon such conversion (the "CONVERSION OBLIGATION"), are subject, in their entirety, to the Issuer's right, in its sole and absolute discretion, to elect to satisfy such Conversion Obligation in any manner permitted pursuant to Section 5.03. 22 (b) Debentures may be surrendered for conversion into shares of Common Stock in integral multiples of $1,000 principal amount: (i) during any calendar quarter commencing after March 31, 2004 and prior to December 31, 2022 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days in a period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter is more than 130% of the Conversion Price as of the last day of such previous calendar quarter and (ii) at any time after December 31, 2022 and prior to the Stated Maturity if, the Last Reported Sale Price of the Common Stock is greater than or equal to 130% of the Conversion Price on any day after December 31, 2022. (c) Any Debentures called for redemption under Article 4 hereof may be surrendered for conversion into shares of Common Stock in integral multiples of $1,000 principal amount at any time prior to the close of business on the Business Day immediately preceding the Redemption Date, even if the Debentures are not otherwise convertible at such time. (d) Debentures may be surrendered for conversion into shares of Common Stock in integral multiples of $1,000 principal amount: (i) if the Issuer elects to distribute to all holders of Common Stock (A) rights or warrants entitling them to purchase, for a period expiring within 45 days of the date of such distribution, Common Stock at less than the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution or (B) assets, debt securities or rights to purchase the Issuer's securities, which distribution has a per share value as determined by the Board of Directors exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such distribution beginning on the date that the Issuer gives notice to the holders of such right, which shall not be less than 20 days prior to the time ("EX - DIVIDEND TIME") immediately prior to the commencement of "EX - DIVIDEND" trading for such distribution on the New York Stock Exchange or such other principal national or regional exchange or market on which 23 the Common Stock is then listed or quoted for such dividend or distribution, and Debentures may be surrendered for conversion at any time thereafter until the earlier of the close of business on the Business Day immediately prior to the Ex-Dividend Time and the date the Issuer announces that such dividend or distribution will not take place even if the Debentures are not otherwise convertible at such time; provided that Holders shall not have the right to surrender Debentures for conversion pursuant to this Section 5.01(d) if they will otherwise participate in the distribution described above without first converting Debentures into Common Stock; or (ii) if the Issuer is a party to a consolidation, merger or binding share exchange pursuant to which shares of Common Stock would be converted into cash, securities or other property as set forth in Section 5.10, at any time from and after the date that is 15 days prior to the anticipated effective date of the transaction until 15 days after the actual effective date of such transaction (or, if such transaction constitutes a Fundamental Change, until the Business Day preceding the applicable Fundamental Change Purchase Date) and, at the effective time of the transaction, the right to convert a Debenture into shares of Common Stock shall be changed into a right to convert such Debenture into the kind and amount of cash, securities or other property of the Issuer or another person that the Holder would have received if the Holder had converted such Debenture immediately prior to the transaction as set forth in Section 5.10. (e) Debentures may be surrendered for conversion into shares of Common Stock in integral multiples of $1,000 principal amount, during any period in which (i) the credit rating assigned to the Debentures by Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies Inc., and its successors ("S&P") is below BBB-, (ii) the credit rating assigned to the Debentures by Moody's Investors Services, Inc. and its successors ("MOODY'S") is below Baa3 or (iii) the Debentures by are no longer rated by at least one of S&P or Moody's. Section 5.02. Conversion Procedures. To convert a Debenture, a Holder must (a) complete and manually sign the Notice of Conversion or a facsimile of the Notice of Conversion on the back of the Debenture (the "NOTICE OF CONVERSION") and deliver such notice to the Conversion Agent, (b) surrender the Debenture to the Conversion Agent, (c) furnish appropriate endorsements and transfer documents if required by the Registrar or the Conversion Agent, (d) if required, pay all transfer or similar taxes and (e) if required, pay funds equal to the interest payable on the next Interest Payment Date. To convert a beneficial interest in the Debenture, the holder thereof must comply with clauses (d) and (e) of the preceding sentence through the Depositary's procedures for conversion and 24 any other applicable procedures of the Depositary. The date on which the Holder satisfies all of those requirements is the "CONVERSION DATE." The Issuer will, on the Conversion Settlement Date, (i) pay the cash component (including cash in lieu of any fraction of a share to which such Holder would otherwise be entitled), if any, of the Conversion Settlement Distribution determined pursuant to Section 5.03 to the Holder of a Debenture surrendered for conversion, or such Holder's nominee or nominees, and (ii) issue, or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder's nominee or nominees, certificates for the number of full shares of Common Stock, if any, to which such Holder shall be entitled as part of such Conversion Settlement Distribution. The Person in whose name the Common Stock certificate is registered shall be deemed to be a shareholder of record at the close of business on the applicable Conversion Settlement Date; provided, however, that if any such date is a date when the stock transfer books of the Issuer are closed, such Person shall be deemed a shareholder of record as of the next date on which the stock transfer books of the Issuer are open. No payment or adjustment shall be made for dividends on, or other distributions with respect to, any Common Stock except as provided in this Article 5. On conversion of a Debenture, any accrued and unpaid interest with respect to such Debenture that is attributable to the period from the Issue Date to the Conversion Date shall not be cancelled, extinguished or forfeited but rather shall be deemed paid in full to the Holder of such Debenture through the delivery of the Common Stock (together with the cash payment, if any, in lieu of fractional shares), or cash or a combination of cash and Common Stock in lieu thereof, in exchange for the Debenture being converted pursuant to the provisions hereof, and the fair market value of the Common Stock (together with the cash payment, if any, in lieu of fractional shares), or cash or a combination of cash and Common Stock in lieu thereof, shall be treated as issued, to the extent thereof, first in exchange for any accrued and unpaid interest attributable to the period from the Issue Date to the Conversion Date, and the balance, if any, of such fair market value shall be treated as issued in exchange for the principal amount of the Debenture being converted pursuant to the provisions hereof. Notwithstanding the preceding sentence (but without limiting the Holder's obligation in the third succeeding paragraph below), on conversion of a Debenture during the period from the close of business on any Regular Record Date immediately preceding any Interest Payment Date to the close of business on the Business Day immediately preceding such Interest Payment Date, the Holder on such Regular Record Date shall receive the interest payable on such Interest Payment Date. 25 If a Holder converts more than one Debenture at the same time, the number of shares of Common Stock issuable upon the conversion shall be based on the aggregate principal amount of Debentures converted. Upon surrender of a Debenture that is converted in part, the Issuer shall execute, and the Trustee shall authenticate and deliver to the Holder, a new Debenture equal in principal amount to the principal amount of the unconverted portion of the Debenture surrendered. Debentures or portions thereof surrendered for conversion during the period from the close of business on any Regular Record Date immediately preceding any Interest Payment Date to the close of business on the Business Day immediately preceding such Interest Payment Date shall be accompanied by payment to the Issuer or its order, in New York Clearing House funds or other funds acceptable to the Issuer, of an amount equal to the interest payable on such Interest Payment Date with respect to the principal amount of Debentures or portions thereof being surrendered for conversion; provided that no such payment need be made if (1) the Issuer has specified a Redemption Date that occurs during the period from the close of business on a Regular Record Date to the close of business on the Interest Payment Date to which such Regular Record Date relates, (2) the Issuer has specified a Fundamental Change Purchase Date during such period or (3) only to the extent of overdue interest or overdue Contingent Interest, any overdue interest or overdue Contingent Interest exists on the Conversion Date with respect to the Debentures converted. Section 5.03. Payment Of Cash In Lieu Of Common Stock. (a) If a Holder elects to convert all or any portion of a Debenture into shares of Common Stock as set forth in Section 5.01 and the Issuer receives such Holder's Notice of Conversion on or prior to the day that is 20 days prior to the Stated Maturity, or with respect to Debentures called for redemption pursuant to Section 5.01, the day that is 20 days prior to the applicable Redemption Date (the "FINAL NOTICE DATE"), the Issuer may choose to satisfy all or any portion of the Conversion Obligation in cash. Upon such election, the Issuer will notify such Holder through the Trustee of the dollar amount to be satisfied in cash (which must be expressed either as 100% of the Conversion Obligation or as a fixed dollar amount) at any time on or before the date that is two Business Days following the Issuer's receipt of the Notice of Conversion (such period, the "CASH SETTLEMENT NOTICE PERIOD"). If the Issuer elects to pay cash for any portion of the shares otherwise issuable to the Holder, the Holder may retract the Notice of Conversion at any time during the two Business Day period beginning on the day after the final day of the Cash Settlement Notice Period (the "CONVERSION RETRACTION PERIOD"); no such retraction can be made (and a Notice of Conversion shall be irrevocable) if the Issuer does not elect to deliver cash in lieu of shares of Common Stock (other than cash in lieu of fractional shares). With respect to any 26 Notice of Conversion received by the Issuer prior to the Final Notice Date, the "CONVERSION SETTLEMENT DISTRIBUTION" for any Debenture subject to such Notice of Conversion shall consist of cash, Common Stock or a combination thereof, as selected by the Issuer as set forth below: (i) if the Issuer elects to satisfy the entire Conversion Obligation in shares of Common Stock, the Conversion Settlement Distribution shall be a number of shares equal to (1) the aggregate principal amount of the Debentures to be converted divided by 1,000, multiplied by (2) the Conversion Rate, plus cash for any fractional shares pursuant to Section 5.04; provided that, if, on the date a Holder submits its Notice of Conversion with respect to Restricted Securities (as defined in the Registration Rights Agreement) at a time when there exists a Registration Default (as defined in the Registration Rights Agreement), for purposes of this Section 5.03(a)(i) and Section 5.03(a)(iii) the Conversion Rate shall be multiplied by 1.03; (ii) if the Issuer elects to satisfy the entire Conversion Obligation in cash, the Conversion Settlement Distribution shall be cash in an amount equal to the product of: (A) a number equal to the product of (x) the aggregate principal amount of Debentures to be converted divided by 1,000 multiplied by (y) the Conversion Rate, and (B) the average of the Last Reported Sale Prices of the Common Stock for the 10 Trading Days beginning on the Trading Day immediately following the final day of the Conversion Retraction Period (the "CASH SETTLEMENT AVERAGING PERIOD"); and (iii) if the Issuer elects to satisfy a fixed portion (other than 100%) of the Conversion Obligation in cash, the Conversion Settlement Distribution shall consist of such cash amount ("CASH AMOUNT") and a number of shares equal to the excess, if any, of the number of shares of Common Stock calculated as set forth in clause (i) above, minus the number of shares of Common Stock equal to the Cash Amount divided by the average of the Last Reported Sales Prices of the Common Stock for the Cash Settlement Averaging Period (plus cash for any fractional shares pursuant to Section 5.04); provided, however, the number of shares of Common Stock shall not be less than zero. (b) At any time on or before any Final Notice Date, the Issuer will notify the Trustee whether it intends to satisfy all or any portion of the Conversion Obligation in cash with respect to conversions of Debentures for which the Issuer 27 receives a Notice of Conversion after such Final Notice Date and the dollar amount to be satisfied in cash (which must be expressed either as 100% or as a fixed dollar amount). In such case, the applicable Conversion Settlement Distribution will be computed in the same manner as set forth in clause (a) above except that the Cash Settlement Averaging Period shall be the 10 Trading Days beginning on the first Trading Day following the Issuer's receipt of the Notice of Conversion or in the event that the Issuer receives a Notice of Conversion on the Business Day prior to the Stated Maturity, the 10 Trading Days beginning on the first Trading Day after the Stated Maturity. (c) Notwithstanding anything to the contrary in this Fourth Supplemental Indenture, at any time prior to Stated Maturity, the Issuer may irrevocably elect, in its sole discretion without the consent of the Holders of the Debentures, by written notice to the Trustee and the holders of the Debentures to satisfy a portion of the Conversion Obligation for all Debentures for conversion after the date of such election by paying in cash 100% of the principal amount of the Debentures so converted. After making such an election, the Issuer may satisfy the remainder of the Conversion Obligation to the extent it exceeds the principal amount in cash or Common Stock or a combination of cash and Common Stock as set forth above. If the Issuer chooses to satisfy all or a portion of the remainder of the Conversion Obligation in cash, the Issuer will provide notice of such election in the same manner as set forth above under either clause (a) or (b), whichever is applicable. If the Issuer chooses to satisfy all of the remainder of the Conversion Obligation in Common Stock, notice of the election to deliver cash for the principal amount will be deemed to have been provided on the last date of the Cash Settlement Notice Period and the notice of conversion will not be retractable. Settlement amounts will be computed and settlement dates will be determined in the same manner as set forth above under clause (a) or (b), as applicable. Section 5.04. Fractional Shares. The Issuer shall not issue a fractional share of Common Stock upon conversion of a Debenture. Instead, the Issuer will deliver cash for the current market value of the fractional share. The current market value of a fractional share of Common Stock shall be determined, to the nearest 1/1,000th of a share, by multiplying the Last Reported Sale Price of a full share of Common Stock on the Trading Day immediately preceding the Conversion Settlement Date by the fractional amount and rounding the product to the nearest whole cent. Section 5.05. Taxes on Conversion. If a Holder converts a Debenture, the Issuer shall pay any documentary, stamp or similar issue or transfer taxes due on the issue of shares of Common Stock upon such conversion. However, the Holder shall pay any such tax which is due because the Holder requests the shares to be issued in a name other than the Holder's name. The Conversion Agent may refuse to deliver the certificate representing the Common Stock being issued in a name 28 other than the Holder's name until the Conversion Agent receives a sum sufficient to pay any tax which will be due because the shares are to be issued in a name other than the Holder's name. Nothing herein shall preclude any tax withholding required by law or regulation. Section 5.06. Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental Requirements; Listing of Common Stock. (a) The Issuer shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for the conversion of the Debentures from time to time as such Debentures are presented for conversion. (b) Before taking any action which would cause an adjustment increasing the Conversion Rate to an amount that would cause the Conversion Price to be reduced below the then par value, if any, of the shares of Common Stock issuable upon conversion of the Debentures, the Issuer will take all corporate action, if any, which may, in the opinion of its counsel, be necessary in order that the Issuer may validly and legally issue shares of such Common Stock at such adjusted Conversion Rate. (c) (i) The Issuer covenants that all shares of Common Stock which may be issued upon conversion of Debentures will upon issue be fully paid and nonassessable by the Issuer and, subject to the provisions of Section 11.05, free from all taxes, liens and charges with respect to the issue thereof. (ii) The Issuer covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Debentures hereunder require registration with or approval of any governmental authority under any federal or state law before such shares may be validly issued upon conversion, the Issuer will in good faith and as expeditiously as possible, to the extent then permitted by the rules and interpretations of the Securities and Exchange Commission (or any successor thereto), endeavor to secure such registration or approval, as the case may be. (d) The Issuer further covenants that, if at any time the Common Stock shall be listed on the NYSE or any other national securities exchange or automated quotation system, the Issuer will, if permitted by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon conversion of the Debenture; provided, however, that, if the rules of such exchange or automated quotation system permit the Issuer to defer the listing of such Common Stock until the first conversion of the Debentures into Common Stock in accordance with the provisions of this Fourth Supplemental Indenture, the Issuer covenants to list such Common Stock 29 issuable upon conversion of the Debentures in accordance with the requirements of such exchange or automated quotation system at such time. Section 5.07. Adjustment Of Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Issuer as follows: (a) In case the Issuer shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution by a fraction, (i) the numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for the determination of stockholders entitled to receive such dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other distribution; and (ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If any dividend or distribution of the type described in this Section 5.07(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (b) In case the Issuer shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price as of the date immediately preceding the record date fixed for determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such rights or warrants by a fraction, (i) the numerator of which shall be the number of shares of Common Stock outstanding on the record date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and 30 (ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the record date fixed for determination of stockholders entitled to receive such rights or warrants plus the number of shares that the aggregate offering price of the total number of shares so offered would purchase at a price equal to the Current Market Price as of the date immediately preceding the record date fixed for determination of stockholders entitled to receive such rights or warrants. Such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price as of the date immediately preceding the record date fixed for determination of stockholders entitled to receive such rights or warrants, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Issuer for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (d) In case the Issuer shall, by dividend or otherwise, distribute to all holders of its Common Stock assets, debt securities, shares of any class of capital stock of the Issuer or rights or warrants to purchase any securities of the Issuer excluding (x) any dividend or distribution or issuance referred to in Section 31 5.07(a), (b) or (g) and (y) any dividend or distribution paid exclusively in cash (any of the foregoing hereinafter in this Section 5.07(d) called the "DISTRIBUTED ASSETS OR SECURITIES")), then, in each such case, the Conversion Rate shall be increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the Regular Record Date with respect to such distribution by a fraction, (i) the numerator of which shall be the Current Market Price on such Regular Record Date; and (ii) the denominator of which shall be the Current Market Price on such Regular Record Date less the Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) on the Regular Record Date of the portion of the Distributed Assets or Securities so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Regular Record Date provided that if the difference between the Current Market Price on the Regular Record Date and the then Fair Market Value (as so determined) of the portion of the Distributed Assets or Securities so distributed applicable to one share of Common Stock is less than $1.00, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of Distributed Assets or Securities such holder would have received had such holder converted each Debenture on the Regular Record Date. If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 5.07(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price on the applicable Regular Record Date. Rights or warrants distributed by the Issuer to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Issuer's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("TRIGGER EVENT"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 5.07 (and no adjustment to the Conversion Rate under this Section 5.07 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made 32 under this Section 5.07(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Fourth Supplemental Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 5.07 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise thereof, the Conversion Rate shall be readjusted as if such expired or terminated rights and warrants had not been issued. For purposes of this Section 5.07(d) and Section 5.07(a) and (b), any dividend or distribution to which this Section 5.07(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock described in Section 5.07(b) (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of assets, debt securities or shares of capital stock other than such shares of Common Stock or rights or warrants (and any Conversion Rate adjustment required by this Section 5.07(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Section 5.07(a) and 5.07(b) with respect to such dividend or distribution shall then be made), except (A) the Regular Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "the date fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such determination" within the meaning of Section 5.07(a) and 5.07(b) and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding 33 at the close of business on the date fixed for such determination" within the meaning of Section 5.07(a). (e) In case the Issuer shall, by dividend or otherwise, make distributions consisting exclusively of cash to all holders of its Common Stock, excluding any cash dividend on the Common Stock to the extent that the aggregate cash dividend per share of Common Stock (x) in any quarter does not exceed $0.23 and (y) in any calendar year does not exceed $0.92 (each such number, the "DIVIDEND THRESHOLD AMOUNT") (the Dividend Threshold Amount shall be subject to adjustment on an inversely proportional basis whenever the Conversion Rate is adjusted, provided that no adjustment will be made to the Dividend Threshold Amount for any adjustment to the Conversion Rate pursuant to this clause (e)) then, in each such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such record date by a fraction, (i) the numerator of which shall be the Current Market Price on such record date; and (ii) the denominator of which shall be the Current Market Price on such record date less the amount of cash (subject to the immediately succeeding paragraph) so distributed applicable to one share of Common Stock, such adjustment to be effective immediately prior to the opening of business on the day following the record date; provided that if the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of cash such holder would have received had such holder converted each Debenture on the Regular Record Date. If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 5.07(e) as a result of a distribution that is a quarterly or annual dividend, such adjustment shall be based upon the amount by which such distribution exceeds the Dividend Threshold Amount. If an adjustment is required to be made as set forth in this Section 5.07(e) above as a result of a distribution that is not a quarterly or annual dividend, such adjustment shall be based upon the full amount of the distribution. (f) In case a tender or exchange offer made by the Issuer or any Subsidiary for all or any portion of the Common Stock (other than offers not subject to Rule 13e-4 under the Exchange Act) shall expire and such tender or 34 exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) that as of the last time (the "EXPIRATION TIME") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Last Reported Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the Expiration Time by a fraction, (i) the numerator of which shall be the sum of (x) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "PURCHASED SHARES") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Last Reported Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, and (ii) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Last Reported Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, such adjustment to become effective immediately prior to the opening of business on the day following the Expiration Time. If the Issuer is obligated to purchase shares pursuant to any such tender or exchange offer, but the Issuer is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. (g) If the Issuer pays a dividend or makes a distribution to all holders of its Common Stock consisting of capital stock of any class or series, or similar equity interests, of or relating to a Subsidiary or other business unit of the Issuer, the Conversion Rate shall be increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the Regular Record Date with respect to such distribution by a fraction, (i) the numerator of which shall be the sum of (A) the average of the Last Reported Sale Prices of the Common Stock for the ten (10) 35 Trading Days commencing on and including the fifth Trading Day after the date on which "ex-dividend trading" commences for such dividend or distribution on The New York Stock Exchange or such other national or regional exchange or market which such securities are then listed or quoted (the "EX-DIVIDEND DATE") plus the fair market value of the securities distributed in respect of each share of Common Stock for which this Section 5.07(g) applies which shall equal the product of the number of securities distributed in respect of each share of Common Stock and the average of the closing sale prices of those securities distributed for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date; and (ii) the denominator of which shall be the average of the Last Reported Sale Prices of the Common Stock for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date, such adjustment to become effective immediately prior to the opening of business on the day following the fifteenth Trading Day after the Ex-Dividend Date; provided that if (x) the average of the Last Reported Sale Prices of the Common Stock for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date minus (y) the fair market value of the securities distributed in respect of each share of Common Stock for which this Section 5.07(g) applies (as calculated in Section 5.07(g)(i)(B) above) is less than $1.00, then in lieu of the adjustment provided by for by this Section 5.07(g), the Issuer may (but shall not be obligated to) treat such dividend or distribution as a transaction to which the provisions of Section 5.10 shall apply. (h) For purposes of this Section 5.07, the following terms shall have the meaning indicated: (i) "CURRENT MARKET PRICE" shall mean the average of the daily Last Reported Sale Prices per share of Common Stock for the twenty consecutive Trading Days ending on the earlier of such date of determination and the day before the "EX" date with respect to the issuance, distribution, subdivision or combination requiring such computation immediately prior to the date in question. For purpose of this paragraph, the term "EX" date, (1) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades, regular way, on the relevant exchange or in the relevant market from which the Last Reported Sale Price was obtained without the right to receive such issuance or distribution, and (2) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades, regular way, on such 36 exchange or in such market after the time at which such subdivision or combination becomes effective. If another issuance, distribution, subdivision or combination to which Section 5.07 applies occurs during the period applicable for calculating "CURRENT MARKET PRICE" pursuant to the definition in the preceding paragraph, "CURRENT MARKET PRICE" shall be calculated for such period in a manner determined by the Board of Directors to reflect the impact of such issuance, distribution, subdivision or combination on the Last Reported Sale Price of the Common Stock during such period. (ii) "FAIR MARKET VALUE" shall mean the amount which a willing buyer would pay a willing seller in an arm's-length transaction. (iii) "REGULAR RECORD DATE" shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise). (i) The Issuer may make such increases in the Conversion Rate in addition to those required by Section 5.07(a), (b), (c), (d), (e), (f) or (g) as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Issuer from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) Business Days, the increase is irrevocable during the period and the Board of Directors shall have made a determination that such increase would be in the best interests of the Issuer, which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Issuer shall mail to Holders a notice of the increase at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect. (j) No adjustment in the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least one-half of one percent (0.5%) in such rate; provided that any adjustments that by reason of this Section 5.07(j) are not required to be made shall be carried forward and taken into 37 account in any subsequent adjustment. All calculations under this Article 5 shall be made by the Issuer and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be. To the extent the Debentures become convertible into cash, assets or property, subject to Section 5.10, no adjustment need be made thereafter as to the cash, assets or property. Interest will not accrue on any cash into which the Debentures are convertible. (k) Whenever the Conversion Rate is adjusted as herein provided, the Issuer shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers' Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee or Conversion Agent shall have received such Officers' Certificate, the Trustee or Conversion Agent, as the case may be, shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Issuer shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the Holder of each Debenture at his last address appearing on the Security Register within twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment. (l) In any case in which this Section 5.07 provides that an adjustment shall become effective immediately after (1) a record date or Regular Record Date for an event, (2) the date fixed for the determination of stockholders entitled to receive a dividend or distribution pursuant to Section 5.07(a), (3) a date fixed for the determination of stockholders entitled to receive rights or warrants pursuant to Section 5.07(b), or (4) the Expiration Time for any tender or exchange offer pursuant to Section 5.07(f) (each a "DETERMINATION DATE"), the Issuer may elect to defer until the occurrence of the applicable Adjustment Event (as hereinafter defined) (x) issuing to the holder of any Debenture converted after such Determination Date and before the occurrence of such Adjustment Event, the additional shares of Common Stock or other securities issuable upon such conversion, or cash in lieu thereof, by reason of the adjustment required by such Adjustment Event over and above the Common Stock issuable upon such conversion, or cash in lieu thereof, before giving effect to such adjustment and (y) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 5.04. For purposes of this Section 5.07(l), the term "ADJUSTMENT EVENT" shall mean: (i) in any case referred to in clause (1) hereof, the occurrence of such event, 38 (ii) in any case referred to in clause (2) hereof, the date any such dividend or distribution is paid or made, (iii) in any case referred to in clause (3) hereof, the date of expiration of such rights or warrants, and (iv) in any case referred to in clause (4) hereof, the date a sale or exchange of Common Stock pursuant to such tender or exchange offer is consummated and becomes irrevocable. (m) For purposes of this Section 5.07, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Issuer, unless such treasury shares participate in any distribution or dividend that requires an adjustment pursuant to this Section 5.07, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. Section 5.08. When No Adjustment Required. When No Adjustment Required. No adjustment to the Conversion Rate need be made: (a) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Issuer and the investment of additional optional amounts in shares of Common Stock under any plan; (b) upon the issuance of any shares of Common Stock or options or rights to purchase or acquire those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Issuer or any of its Subsidiaries; (c) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in paragraph (b) above and outstanding as of the date of this Fourth Supplemental Indenture; (d) for a change in the par value or to eliminate the par value of the Common Stock; or (e) for accrued and unpaid interest (including Additional Interest, if any). Section 5.09. Notice of Certain Transactions. In the event that: (i) the Issuer takes any action which would require an adjustment in the Conversion Rate; or 39 (ii) the Issuer takes any action that requires a supplemental indenture pursuant to Section 5.10; the Issuer shall mail to Holders and file with the Trustee a notice stating the proposed record or effective date, as the case may be. The Issuer shall mail the notice at least fifteen days before such date. Failure to mail such notice or any defect therein shall not affect the validity of any transaction referred to in clause (i) or (ii) of this Section 5.09. Section 5.10. Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. If any of the following events occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a subdivision or combination to which Section 5.07(c) applies), (ii) any consolidation, merger, binding share exchange or combination of the Issuer with another Person as a result of which holders of Common Stock shall be entitled to receive stock, other securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, or (iii) any sale or transfer of all or substantially all of the properties and assets of the Issuer to any other Person as a result of which holders of Common Stock shall be entitled to receive stock, other securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Issuer or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of execution of such supplemental indenture) providing that each Debenture shall be convertible into the kind and amount of shares of stock, other securities or other property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, binding share exchange, combination, sale or transfer by a holder of a number of shares of Common Stock issuable upon conversion of such Debentures (assuming, for such purposes, a sufficient number of authorized shares of Common Stock are available to convert all such Debentures) immediately prior to such reclassification, change, consolidation, merger, combination, binding share exchange, sale or transfer assuming such holder of Common Stock did not exercise his rights of election, if any, as to the kind or amount of stock, other securities or other property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, binding share exchange, combination, sale or transfer (provided that, if the kind or amount of stock, other securities or other property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, combination, sale or transfer is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("NON-ELECTING SHARE"), then for the purposes of this Section 5.10 the kind and amount of stock, other securities or other property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, binding share exchange, combination, sale or transfer for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). 40 Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article 5. The Issuer shall cause notice of the execution of such supplemental indenture to be mailed to each Holder of Debentures, at its address appearing on the Security Register, within twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. The above provisions of this Section 5.10 shall similarly apply to successive reclassifications, changes, consolidations, mergers, binding share exchanges, combinations, sales and transfers. If this Section 5.10 applies to any event or occurrence, Section 5.07 shall not apply. Section 5.11. Trustee's Disclaimer. The Trustee shall have no duty to determine when an adjustment under this Article 5 should be made, how it should be made or what such adjustment should be, but may accept as conclusive evidence of that fact or the correctness of any such adjustment, and shall be protected in relying upon, an Officers' Certificate including the Officers' Certificate with respect thereto which the Issuer is obligated to file with the Trustee pursuant to Section 5.07(k). The Trustee makes no representation as to the validity or value of any securities or assets issued upon conversion of Debentures, and the Trustee shall not be responsible for the Issuer's failure to comply with any provisions of this Article 5. The Trustee shall not be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture executed pursuant to Section 5.10, but may accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying upon, the Officers' Certificate with respect thereto which the Issuer is obligated to file with the Trustee pursuant to Section 5.07(k). Section 5.12. Rights Issued in Respect Of Common Stock Issued Upon Conversion. Each share of Common Stock issued upon conversion of Debentures pursuant to this Article 5 shall be entitled to receive the appropriate number of common stock or preferred stock purchase rights, as the case may be (the "RIGHTS"), if any, that shares of Common Stock are entitled to receive (except to the extent the Issuer settles its Conversion Obligation in cash) and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any shareholder rights agreement adopted by the Issuer, as the same may be amended from time to time (in each case, a "RIGHTS AGREEMENT"). Provided that such Rights Agreement 41 requires that each share of Common Stock issued upon conversion of Debentures at any time prior to the distribution of separate certificates representing the Rights be entitled to receive such Rights, then, notwithstanding anything else to the contrary in this Article 5, there shall not be any adjustment to the conversion privilege or Conversion Rate as a result of the issuance of Rights, but an adjustment to the Conversion Rate shall be made pursuant to Section 5.07(d) upon the separation of the Rights from the Common Stock. Section 5.13 . Calculations In Respect Of The Debentures. The Issuer and, to the extent required by this Fourth Supplemental Indenture, the Board of Directors, will be responsible for making all calculations pursuant to Sections 5.02, 5.04, 5.07 or 5.10 and will make such calculations in good faith and, absent manifest error, such calculations shall be final and binding on the Holders. Notwithstanding Section 5.07(k), the Trustee will forward the Issuer's calculations to any Holder upon the request of such Holder. ARTICLE 6 PURCHASE AT OPTION OF HOLDERS Section 6.01. Right to Require Purchase. (a) Each Holder has the right to require the Issuer to purchase all or a portion of the Debentures held by such Holder on July 15, 2009, January 15, 2014, and January 15, 2019, or if any such day is not a Business Day, on the immediately succeeding Business Day (each, a "PURCHASE DATE"). (b) On or before the 20th Business Day prior to each Purchase Date, the Issuer shall mail a written notice to the Trustee and any Paying Agent and to each Holder at its address shown in the Security Register. The notice shall include the form of Purchase Notice to be completed by the Holder and shall state: (i) the Purchase Price; (ii) the name and address of the Paying Agent and the Conversion Agent; (iii) the Conversion Rate and any adjustments to the Conversion Rate; (iv) that the Debentures with respect to which a Purchase Notice has been given by the Holder may be converted only if the Holder 42 withdraws the Purchase Notice in accordance with the terms of the Indenture; and (v) the procedures set forth in Section 6.02 that each Holder must follow to exercise its right to require the Issuer to purchase such Holder's Debentures. If any of the Debentures is in the form of a Registered Global Security, then the Issuer shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Registered Global Securities. In connection with providing such notice, the Issuer shall issue a press release and publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the information on the Issuer's web site or through such other public medium as the Issuer may use at that time. Section 6.02. Purchase Procedures. The Issuer shall purchase such Debentures for cash at a Purchase Price equal to 100% of the principal amount thereof, plus accrued and unpaid interest (including Additional Interest, if any) to, but excluding, the Purchase Date (the "PURCHASE PRICE") (provided that if the Purchase Date is an Interest Payment Date, any accrued and unpaid interest or Additional Interest, shall be paid to the Holder of record as of the applicable Regular Record Date, rather than to the Holder presenting the Debenture for purchase), at the option of the Holder thereof, upon: (a) delivery to the Paying Agent by the Holder of a written notice of purchase (a "PURCHASE NOTICE") at any time from the opening of business on the date that is 20 Business Days prior to a Purchase Date until the close of business on the Business Day immediately preceding such Purchase Date stating: (i) if a certificated Debenture has been issued, the certificate number of the Debenture which the Holder will deliver to be purchased or if not, such information as may be required under applicable procedures of the Depositary, (ii) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iii) that such Debenture shall be purchased as of the applicable Purchase Date pursuant to the provisions of the Debentures and this Article 6; and (b) delivery of such Debenture to the Paying Agent (or effectuate a book-entry transfer of such Debenture in accordance with the Depositary's procedures) prior to, on or after the Purchase Date (together with all necessary 43 endorsements) at the offices of the Paying Agent, such delivery or book-entry transfer being a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Article 6 only if the Debenture so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice. The Issuer shall purchase from the Holder thereof, pursuant to this Article 6, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Fourth Supplemental Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture. Any purchase by the Issuer contemplated pursuant to the provisions of this Article 6 shall be consummated by the payment of the Purchase Price to be received by the Holder in cash promptly following the later of the Purchase Date and the time of delivery, or book-entry transfer of the Debenture as set forth in Section 6.04. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Purchase Notice contemplated by this Section 6.02 shall have the right to withdraw such Purchase Notice at any time prior to the close of business on the Business Day immediately preceding the Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 6.03. The Paying Agent shall promptly notify the Issuer of the receipt by it of any Purchase Notice or written notice of withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Registered Global Securities, any Purchase Notice may be delivered or withdrawn and such Debentures may be surrendered or delivered for purchase in accordance with the applicable procedures of the Trustee and the Depositary as in effect from time to time; provided that a Paying Agent is notified in writing of any such delivery or withdrawal. The Issuer may, at its option, specify additional dates on which Holders will have the right to require it to purchase Debentures upon written notice to the Paying Agent, the Trustee and the Holders. Such notice shall specify the additional dates upon which the Issuer shall be required to purchase the Debentures at the option of the Holders and shall be delivered to the Paying Agent, the Trustee and the Holders no less than 25 Business Days prior to the earliest purchase date specified in such notice. Section 6.03. Effect of Purchase Notice. Upon receipt by the Paying Agent of the Purchase Notice specified in Section 6.02(a), the Holder of the 44 Debenture in respect of which such Purchase Notice was given shall (unless such Purchase Notice is withdrawn as specified in the following two paragraphs) thereafter be entitled to receive solely the Purchase Price with respect to such Debenture. Such Purchase Price shall be paid to such Holder, subject to receipt of funds by the Paying Agent, promptly following the later of (x) the Purchase Date with respect to such Debenture (provided the conditions in Section 6.02 have been satisfied) and (y) the time of delivery, or book-entry transfer, of such Debenture to the Paying Agent by the Holder thereof in the manner required by Section 6.02. Debentures in respect of which a Purchase Notice has been given by the Holder thereof may not be converted pursuant to Article 5 hereof on or after the date of the delivery of such Purchase Notice unless such Purchase Notice has first been validly withdrawn as specified in the following two paragraphs. A Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the office of the Paying Agent at any time prior to the close of business on the applicable Purchase Date specifying: (i) if certificated Debentures have been issued, the certificate number of the Debenture in respect of which such notice of withdrawal is being submitted, or if not, such information as may be required under appropriate procedures of the Depositary; (ii) the principal amount of the Debenture with respect to which such notice of withdrawal is being submitted; and (iii) the principal amount, if any, of such Debenture that remain subject to the original Purchase Notice and have been or will be delivered for purchase by the Issuer. The Paying Agent will promptly return to the respective Holders thereof any Debentures (in accordance with the applicable procedures of the Depositary in the case of Registered Global Securities) with respect to which a Purchase Notice has been withdrawn in compliance with this Fourth Supplemental Indenture, in which case, upon such return, the Purchase Notice with respect thereto shall be deemed to have been withdrawn. Section 6.04. Deposit of Purchase Price. Prior to 11:00 a.m. (New York City time) on the Purchase Date, the Issuer shall deposit with the Trustee or with the Paying Agent an amount of cash (in immediately available funds if deposited on such Purchase Date) sufficient to pay the aggregate Purchase Price of all of the Debentures or portions thereof which are to be purchased as of the Purchase Date. The manner in which the deposit required by this Section 6.04 is made by the Issuer shall be at the option of the Issuer, provided, however, that such deposit shall be made in a manner such that the Trustee or a Paying Agent shall have immediately available funds on the date of deposit. 45 If a Paying Agent holds, in accordance with the terms hereof, money sufficient to pay the Purchase Price of any Debenture for which a Purchase Notice has been tendered and not withdrawn in accordance with this Fourth Supplemental Indenture on the Business Day following the Purchase Date then, immediately after such Purchase Date, such Debenture will cease to be outstanding, interest (including Additional Interest, if any) will cease to accrue, whether or not book-entry transfer of such Debentures is made or such Debentures are delivered to the Paying Agent, and the rights of the Holder in respect thereof shall terminate (other than the right to receive the Purchase Price as aforesaid). The Issuer shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of the Purchase Price and shall notify the Trustee of any default by the Issuer in making any such payment. The Issuer at any time may require a Paying Agent to deliver all money held by it pursuant to this Section 6.04 to the Trustee and to account for any funds disbursed by the Paying Agent. Upon doing so, the Paying Agent shall have no further liability for the money delivered to the Trustee. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Debentures for purchase shall be determined by the Issuer, whose determination shall be final and binding, absent manifest error. Section 6.05. Debentures Purchased in Part. Any Debenture that is to be purchased only in part shall be surrendered at the office of the Paying Agent (with, if the Issuer, the Paying Agent or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer, the Paying Agent or the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing) (or comply with the applicable procedures of the Depositary in the case of Registered Global Securities) and the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder of such Debenture, without service charge except for any taxes to be paid by the Holder in the event a Debenture is registered under a new name, a new Debenture or Debentures, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Debenture so surrendered that is not purchased. Section 6.06. Payment To Issuer. The Trustee and the Paying Agent shall return to the Issuer any cash that remains unclaimed for two years, subject to applicable unclaimed property law, together with interest, if any, thereon held by them for the payment of the Purchase Price; provided, however, that to the extent that the aggregate amount of cash deposited by the Issuer pursuant to Section 6.04 exceeds the aggregate Purchase Price of the Debentures or portions thereof which the Issuer is obligated to purchase as of the Purchase Date, then on the Business Day following the Purchase Date, the Trustee or Paying Agent, as applicable, 46 shall return any such excess to the Issuer. Thereafter, any Holder entitled to payment must look to the Issuer for payment as general creditors, unless an applicable abandoned property law designates another Person. ARTICLE 7 PURCHASE AT OPTION OF HOLDER UPON A FUNDAMENTAL CHANGE Section 7.01. Right to Require Purchase. (a) If at any time prior to Stated Maturity that Debentures remain outstanding there shall occur a Fundamental Change, Debentures shall be purchased by the Issuer in integral multiples of $1,000 principal amount at the option of the Holders thereof as of the date specified by the Issuer that is not less than 20 Business Days nor more than 35 Business Days after the date of the Issuer's notice, pursuant to clause (b) below, of the occurrence of the Fundamental Change (the "FUNDAMENTAL CHANGE PURCHASE DATE") subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 7.01. The purchase price of such Debentures (the "FUNDAMENTAL CHANGE PURCHASE PRICE") shall be equal to 100% of the principal amount of the Debentures to be purchased plus accrued and unpaid interest (including Additional Interest, if any) to, but excluding, the Fundamental Change Purchase Date, unless such Fundamental Change Purchase Date falls after a Regular Record Date and on or prior to the corresponding Interest Payment Date, in which case the Issuer shall pay the full amount of accrued and unpaid interest (including Additional Interest, if any) payable on such Interest Payment Date to the holder of record at the close of business on such Regular Record Date. A "FUNDAMENTAL CHANGE" shall be deemed to have occurred at such time after the original issuance of the Debentures as any of the following occurs: (i) the Common Stock or other common stock into which the Debentures are convertible is neither listed for trading on a United States national securities exchange nor approved for trading on the Nasdaq National Market or another established automated over the counter trading market in the United States; (ii) a "PERSON" or "GROUP" within the meaning of Section 13(d) of the Exchange Act, other than the Issuer, any Subsidiary of the Issuer or any employee benefit plan of the Issuer or any such Subsidiary, files a Schedule TO (or any other schedule, form or report under the Exchange Act) disclosing that such person or group has become the direct or indirect ultimate beneficial owner (as defined in Rule 13d-3 of the Exchange Act) of Voting Stock of the Issuer representing more than 50% of the voting power of the Issuer's Voting Stock; 47 (iii) consummation of any share exchange, consolidation or merger of the Issuer pursuant to which the Common Stock will be converted into cash, securities or other property or any sale, lease or other transfer (in one transaction or a series of transactions) of all or substantially all of the consolidated assets of the Issuer and its Subsidiaries, taken as a whole, to any Person (other than the Issuer or one or more of the Issuer's Subsidiaries); provided, however, that a transaction where the holders of the Issuer's Voting Stock immediately prior to such transaction own, directly or indirectly, more than 50% of the aggregate voting power of all classes of Voting Stock of the continuing or surviving corporation or transferee or lessee immediately after such event shall not be a Fundamental Change; or (iv) Continuing Directors cease to constitute at least a majority of the Board of Directors; provided, however, that a Fundamental Change shall not be deemed to have occurred in respect of any of the foregoing if either (x) the Last Reported Sale Price per share of Common Stock for any five Trading Days within the period of 10 consecutive Trading Days ending immediately before the later of the Fundamental Change or the public announcement thereof shall equal or exceed 105% of the Conversion Price of the Debentures in effect immediately before the Fundamental Change or the public announcement thereof; or (y) at least 90% of the consideration (excluding cash payments for fractional shares) in the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on a national securities exchange or reported by the NASDAQ National Market (or which shall be so traded or reported when issued or exchanged in connection with such Fundamental Change) (such securities being referred to as "PUBLICLY TRADED SECURITIES") and as a result of such transaction or transactions the Debentures become convertible into such Publicly Traded Securities (excluding cash payments for fractional shares). For purposes of the foregoing proviso the term "CAPITAL STOCK" of any Person means any and all shares, interests, participations or other equivalents however designated of corporate stock or other equity participations, including partnership interests, whether general or limited, of such Person and any rights (other than debt securities convertible or exchangeable into an equity interest), warrants or options to acquire an equity interest in such Person. A "CONTINUING DIRECTOR" shall mean a director who either was a member of the Board of Directors on December 16, 2003 or who becomes a member of the Board of Directors subsequent to that date and whose appointment, election (or re-election) or nomination (or re-nomination) for election by the Issuer's stockholders is duly approved by a majority of the Continuing Directors on the Board of Directors at the time of such approval, either by a specific vote or by 48 approval of the proxy statement issued by the Issuer on behalf of the Board of Directors in which such individual is named as nominee for director. (b) On or before the 30th day after the occurrence of a Fundamental Change, the Issuer shall mail a written notice of the Fundamental Change to the Trustee and any Paying Agent and to each Holder. The notice shall include the form of a Fundamental Change Purchase Notice to be completed by the Holder and shall state: (i) the events causing such Fundamental Change and the date of such Fundamental Change; (ii) the date by which the Fundamental Change Purchase Notice pursuant to Section 7.01(c) must be given; (iii) the Fundamental Change Purchase Date; (iv) the Fundamental Change Purchase Price that will be payable with respect to the Debentures as of the Fundamental Change Purchase Date; (v) briefly, the conversion rights of the Debentures; (vi) the name and address of each Paying Agent and Conversion Agent; (vii) the Conversion Rate and any adjustments thereto; (viii) that Debentures as to which a Fundamental Change Purchase Notice has been given may be converted into Common Stock pursuant to Article 5 only to the extent that the Fundamental Change Purchase Notice has been withdrawn in accordance with the terms of this Fourth Supplemental Indenture; (ix) the procedures that the Holder must follow to exercise rights under this Section 7.01; (x) the procedures for withdrawing a Fundamental Change Purchase Notice, including a form of notice of withdrawal; and (xi) that the Holder must satisfy the requirements set forth in the Debentures in order to convert the Debentures. If any of the Debentures is in the form of a Registered Global Security, then the Issuer shall modify such notice to the extent necessary to accord with the 49 procedures of the Depositary applicable to the purchase of Registered Global Securities. In connection with providing such notice, the Issuer shall issue a press release containing the information included in the notice and publish such information in a newspaper of general circulation in the City of New York or publish such information on its website on the World Wide Web or such other public media as the Issuer may use from time to time. (c) A Holder may exercise its rights specified in subsection (a) of this Section 7.01 upon delivery of a written notice (which shall be in substantially the form included as an attachment to the Debentures and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Registered Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "FUNDAMENTAL CHANGE PURCHASE NOTICE") to any Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date. The delivery of such Debenture to any Paying Agent (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Purchase Price. The Issuer shall purchase from the Holder thereof, pursuant to this Section 7.01, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Fourth Supplemental Indenture that apply to the purchase of all of a Debenture pursuant to this Section 7.01 through Section 7.05 also apply to the purchase of such portion of such Debenture. Any purchase by the Issuer contemplated pursuant to the provisions of this Section 7.01 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Fundamental Change Purchase Date and the time of delivery of the Debenture to the Paying Agent in accordance with this Section 7.01 as set forth in Section 7.02. Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent the Fundamental Change Purchase Notice contemplated by this subsection (c) shall have the right to withdraw such Fundamental Change Purchase Notice in whole or as to a portion thereof that is an principal amount of $1,000 or an integral multiple thereof at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 7.02. A Paying Agent shall promptly notify the Issuer of the receipt by it of any Fundamental Change Purchase Notice or written withdrawal thereof. 50 Anything herein to the contrary notwithstanding, in the case of Registered Global Securities, any Fundamental Change Purchase Notice may be delivered or withdrawn and such Debentures may be surrendered or delivered for purchase in accordance with the applicable procedures of the Trustee and the Depositary as in effect from time to time; provide that a Paying Agent is notified in writing of any such delivery or withdrawal. Section 7.02. Effect Of Fundamental Change Purchase Notice. Upon receipt by any Paying Agent of the Fundamental Change Purchase Notice specified in Section 7.01(c), the Holder of the Debenture in respect of which such Fundamental Change Purchase Notice was given shall (unless such Fundamental Change Purchase Notice is withdrawn as specified below) thereafter be entitled to receive the Fundamental Change Purchase Price with respect to such Debenture. Such Fundamental Change Purchase Price shall be paid to such Holder promptly following the later of (a) the Fundamental Change Purchase Date with respect to such Debenture (provided the conditions in Section 7.01(c) have been satisfied) and (b) the time of delivery of such Debenture to a Paying Agent by the Holder thereof in the manner required by Section 7.01(c). Debentures in respect of which a Fundamental Change Purchase Notice has been given by the Holder thereof may not be converted into Common Stock on or after the date of the delivery of such Fundamental Change Purchase Notice unless such Fundamental Change Purchase Notice has first been validly withdrawn as specified in the following paragraph. A Fundamental Change Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the office of the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the applicable Fundamental Change Purchase Date specifying: (i) if certificated Debentures have been issued, the certificate numbers for Debentures in respect of which such notice of withdrawal is being submitted, or if not, such information as required by the Depositary; (ii) the principal amount, in integral multiples of $1,000, of the Debentures with respect to which such notice of withdrawal is being submitted; and (iii) the principal amount, if any, of such Debentures that remain subject to the original Fundamental Change Purchase Notice and have been or will be delivered for purchase by the Issuer. The Paying Agent will promptly return to the respective Holders thereof any Debentures (or comply with the applicable procedures of the Depositary in the case of Registered Global Securities) with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with this Fourth Supplemental Indenture, in which case, upon such return, the Fundamental 51 Change Purchase Notice with respect thereto shall be deemed to have been withdrawn. Section 7.03. Deposit of Fundamental Change Purchase Price. On or before 11:00 a.m. New York City time on the Fundamental Change Purchase Date, the Issuer shall deposit with the Trustee or with a Paying Agent an amount of cash (in immediately available funds if deposited on the Fundamental Change Purchase Date) sufficient to pay the aggregate Fundamental Change Purchase Price of all the Debentures or portions thereof that are to be purchased as of such Fundamental Change Purchase Date. The manner in which the deposit required by this Section 7.03 is made by the Issuer shall be at the option of the Issuer, provided, however, that such deposit shall be made in a manner such that the Trustee or a Paying Agent shall have immediately available funds on the date of such deposit. If a Paying Agent holds, in accordance with the terms hereof, money sufficient to pay the Fundamental Change Purchase Price of any Debenture for which a Fundamental Change Purchase Notice has been tendered and not withdrawn in accordance with this Fourth Supplemental Indenture on the Fundamental Change Purchase Date then, immediately following the Fundamental Change Purchase Date, such Debenture will cease to be outstanding, interest (including Additional Interest, if any) will cease to accrue and the rights of the Holder in respect thereof shall terminate (other than the right to receive the Fundamental Change Purchase Price). The Issuer shall publicly announce the principal amount of Debentures purchased as a result of such Fundamental Change on or as soon as practicable after the Fundamental Change Purchase Date. Section 7.04. Debentures Purchased in Part. Any Debenture that is to be purchased only in part shall be surrendered at the office of the Paying Agent (with, if the Issuer, the Paying Agent or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer, the Paying Agent or the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing) (or comply with the applicable procedures of the Depositary in the case of Registered Global Securities) and the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder of such Debenture, without service charge except for any taxes to be paid by the Holder in the event a Debenture is registered under a new name, a new Debenture or Debentures, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Debenture so surrendered that is not purchased. Section 7.05. Repayment to the Issuer. The Trustee and the Paying Agent shall return to the Issuer any cash that remains unclaimed for two years, subject to applicable unclaimed property law, together with interest, if any, thereon held by them for the payment of the Fundamental Change Purchase Price; provided, 52 however, that to the extent that the aggregate amount of cash deposited by the Issuer pursuant to Section 7.03 exceeds the aggregate Fundamental Change Purchase Price of the Debentures or portions thereof which the Issuer is obligated to purchase as of the Fundamental Change Purchase Date, then on the Business Day following the Fundamental Change Purchase Date, the Trustee or Paying Agent, as applicable, shall return any such excess to the Issuer. Thereafter, any Holder entitled to payment must look to the Issuer for payment as general creditors, unless an applicable abandoned property law designates another Person. ARTICLE 8 COVENANTS OF THE ISSUER Section 8.01. Notice Of Additional Interest. In addition to the covenants of the Issuer set forth in Article Three of the Indenture, the following covenants and agreements shall apply to the Issuer: (a) As soon as practicable following the first Business Day of an Interest Period for which Additional Interest will be payable, the Issuer shall issue a press release containing this information and publish the information on its website on the World Wide Web. (b) On any Interest Payment Date on which Additional Interest is payable, the Issuer shall issue a press release stating the amount of such Additional Interest and setting forth the manner in which such amount was calculated, and publish such information on its website on the World Wide Web. Section 8.02. Reports By Issuer. If at any time while any of the Debentures are "restricted securities" within the meaning of Rule 144, the Issuer is no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer will prepare and will furnish to any Holder, any beneficial owner of Debentures and any prospective purchaser of Debentures designated by a Holder or a beneficial owner of Debentures, promptly upon request, the information required pursuant to Rule 144A(d)(4) (or any successor thereto) under the Securities Act in connection with the offer, sale or transfer of Debentures. Section 8.03. Limitation on Liens, Limitation on Sale and Lease-Back. For so long as any of the 5.5% Senior Notes due 2014, 6.45% Senior Notes due 2024 or the 6.5% Senior Notes due 2034 of the Issuer shall remain outstanding (as determined pursuant to the Indenture), and the covenants of the Issuer set forth in Sections 3.6 and 3.7 in the Indenture apply to any of such Notes (such period, the "COVENANT APPLICABILITY PERIOD"), the covenants and agreements of the Issuer set forth in Sections 3.6 and 3.7 of the Indenture shall apply to the Debentures. 53 After the end of the Covenant Applicability Period, such covenants (and any related Events of Default) shall no longer apply to the Debentures. ARTICLE 9 CONSOLIDATION, MERGER, SALE OR CONVEYANCE Section 9.01. Consolidations And Mergers Of Company Permitted Subject To Certain Conditions. Nothing contained in this Fourth Supplemental Indenture shall prevent any consolidation or merger of the Issuer with or into any other corporation or corporations (whether or not affiliated with the Issuer), or successive consolidations or mergers in which the Issuer or its successor or successors shall be a party or parties, or shall prevent any sale or conveyance of all or substantially all the property of the Issuer to any other corporation (whether or not affiliated with the Issuer) authorized to acquire and operate the same; provided, however, that immediately after giving effect to such transaction, no Event of Default with respect to any series of Securities and no event which, after notice or lapse of time or both, would become an Event of Default with respect to any series of Securities shall have occurred and be continuing; and provided, further, that upon any such consolidation, merger, sale or conveyance, other than a consolidation or merger in which the Issuer is the continuing corporation, the due and punctual payment of the Redemption Price, Purchase Price, Fundamental Change Purchase Price and principal of and interest (including Additional Interest, if any) on all of the Debentures, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Issuer, shall be expressly assumed, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by the corporation (if other than the Issuer) formed by such consolidation, or into which the Issuer shall have been merged, or by the corporation which shall have acquired such property, and, provided, further, that such corporation shall be incorporated under the laws of the United States of America or a State of the United States of America. ARTICLE 10 MISCELLANEOUS Section 10.01. Ratification of Indenture. The Indenture, as supplemented by this Fourth Supplemental Indenture, is in all respects ratified and confirmed, and this Fourth Supplemental Indenture shall be deemed a part of the Indenture in the manner and to the extent herein and therein provided. Notwithstanding the foregoing, to the extent that any of the terms of this Fourth Supplemental Indenture are inconsistent with, or conflict with, the terms of the Indenture, the terms of the Fourth Supplemental Indenture shall govern. 54 Section 10.02. Amendments or Supplemental Indentures With Consent Of Holders. This Fourth Supplemental Indenture may be amended or supplemented as provided in Article 8 of the Indenture. In addition to Section 8.1 of the Indenture, the Issuer and the Trustee may amend this Fourth Supplemental Indenture or enter into any supplemental indenture without the consent of the Holders of Debentures to conform the Fourth Supplemental Indenture to the section entitled "Description of Debentures" in the Issuer's Offering Memorandum dated December 10, 2003 relating to the Debentures. In addition to Section 8.2 of the Indenture, neither the Issuer nor the Trustee may amend this Fourth Supplemental Indenture or enter into any supplemental indenture without the consent of each Holder of Debentures affected thereby to (a) reduce any amount payable on repurchase of the Debentures (including a repurchase upon a Fundamental Change) or change the currency in which such repurchase is payable or (b) make any change that adversely affects the right to convert the Debentures or reduce the amount payable upon conversion. Section 10.03. Governing Law. THIS FOURTH SUPPLEMENTAL INDENTURE, EACH DEBENTURE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS FOURTH SUPPLEMENTAL INDENTURE AND EACH DEBENTURE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. Section 10.04. Counterparts. This Fourth Supplemental Indenture may be executed in several counterparts, each of which shall be an original, and all collectively but one instrument. Section 10.05. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Fourth Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Issuer. 55 IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be executed as of the date first above written. WYETH, as Issuer By: /s/ Jack M. O'Connor --------------------------------------- Name: Jack M. O'Connor Title: Vice President & Treasurer JPMORGAN CHASE BANK, as Trustee By: /s/ Rosa Ciaccia --------------------------------------- Name: Rosa Ciaccia Title: Trust Officer EXHIBIT A [Insert if Registered Global Security:] [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS REGISTERED GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.] [Insert if Restricted Security:] [THIS DEBENTURE AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OF THIS DEBENTURE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS DEBENTURE IS HEREBY NOTIFIED THAT THE SELLER OF THIS DEBENTURE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THIS DEBENTURE AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OF THIS DEBENTURE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION A-1 UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO WYETH OR ANY SUBSIDIARY THEREOF OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. THIS DEBENTURE, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS DEBENTURE AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS DEBENTURE AND SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS DEBENTURE AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.] A-2 WYETH Floating Rate Convertible Senior Debentures due 2024 No. ___ Principal Amount: $________ Issue Date: ________ CUSIP: ________ WYETH, a Delaware corporation (the "ISSUER"), for value received, hereby promises to pay to ______________, or registered assigns, [$______] on January 15, 2024. This Debenture shall bear interest as specified on the reverse side of this Debenture and in the Supplemental Indenture. Additional Interest, if any, on this Debenture, will be payable as specified on the reverse side of this Debenture and in the Supplemental Indenture. This Debenture is convertible, is subject to redemption at the option of the Issuer or purchase at the option of the Holder hereof, all as specified on the reverse side of this Debenture and in the Supplemental Indenture. Reference is hereby made to the further provisions of this Debenture set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. A-3 IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed. Dated:______________ WYETH By: _______________________________________ Name: Title: TRUSTEE'S CERTIFICATE OF AUTHENTICATION JPMORGAN CHASE BANK, as Trustee, certifies that this is one of the Securities referred to in the within-mentioned Indenture. By: _______________________________________ Authorized Officer A-4 [FORM OF REVERSE SIDE OF DEBENTURE] Floating Rate Convertible Senior Debentures due 2024 This Debenture is one of a duly authorized issue of securities of the Issuer limited in aggregate principal amount to $1,020,000,000, issued under an Indenture, dated as of April 10, 1992 (as amended on October 13, 1992) (the "INDENTURE"), and as further amended and supplemented from time to time, as supplemented by a Fourth Supplemental Indenture, dated as of December 16, 2003 (the "SUPPLEMENTAL INDENTURE"), between the Issuer and JPMorgan Chase Bank, as Trustee (the "TRUSTEE," which term includes any successor trustee under the Supplemental Indenture and as further amended and supplemented from time to time), to which Indenture and Supplemental Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Trustee and the Holders of the Debentures and of the terms upon which the Debentures are, and are to be, authenticated and delivered. Capitalized terms used and not otherwise defined in this Debenture are used as defined in the Supplemental Indenture. INTEREST. This Debenture will bear interest from December 16, 2003 or from the most recent date to which interest has been paid or duly provided for, semiannually in arrears on January 15 and July 15 of each year (each, an "INTEREST PAYMENT DATE"), subject to Section 2.13 of the Supplemental Indenture, commencing July 15, 2004, at the rate per annum equal to 6-month LIBOR, reset semi-annually on each Interest Reset Date, minus 0.50%. The rate of interest for the first Interest Period shall be 0.73625% per annum. Regardless of the level of 6-month LIBOR, however, the annual rate of interest on the Debentures during any Interest Period will never be less than zero. Interest on this Debenture shall be calculated on the basis of a 360-day year and the actual number of days elapsed during the related Interest Period. Interest payable on this Debenture on any Interest Payment Date will include interest for the immediately preceding Interest Period. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture and Supplemental Indenture, be paid to the Person in whose name this Debenture (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest payment, which shall be the January 1 or July 1, as the case may be, immediately preceding the relevant Interest Payment Date. Any interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant Regular Record Date by virtue of having been such Holder, and may be paid to the Person in whose name this Debenture (or one or more A-5 Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Issuer, notice whereof shall be given to the Holders of Debentures not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Debentures may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture and the Supplemental Indenture. ADDITIONAL INTEREST. The Debentures shall bear Additional Interest at the rates set forth, and subject to the provisions of the Registration Rights Agreement. Additional Interest, if any, shall be payable semi-annually in arrears on each Interest Payment Date, as set forth in the Registration Rights Agreement. INTEREST ON OVERDUE AMOUNTS. If the principal amount hereof or any portion of such principal amount is not paid when due (whether upon acceleration pursuant to Section 5.1 of the Indenture, upon the dates set for payment of the Redemption Price, Purchase Price or Fundamental Change Purchase Price, or upon the Stated Maturity of this Debenture) or if interest due hereon (including Additional Interest, if any) (or any portion of such interest), is not paid when due, then in each such case the overdue amount shall, to the extent permitted by law, bear interest at the rate then borne by this Debenture. All such interest shall be payable as set forth in the Indenture. METHOD OF PAYMENT. Subject to the terms and conditions of the Indenture and the Supplemental Indenture, the Issuer will make payments in respect of Redemption Price, Purchase Price, Fundamental Change Purchase Price and at Stated Maturity to Holders who surrender Debentures to a Paying Agent to collect such payments in respect of the Debentures; provided that if any Redemption Date, Purchase Date or Fundamental Change Date is an Interest Payment Date, accrued and unpaid interest (including Additional Interest, if any) shall be paid to the Holder of record as of the applicable Regular Record Date. The Issuer will pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Issuer may make such cash payments by check payable in such money; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest on all Registered Global Securities and all Debentures of Holders of more than $2,000,000 aggregate principal amount of Debentures that have requested such method of payment and provided wire transfer instructions to the Issuer or the Paying Agent at least five Business Days prior to the applicable Interest A-6 Payment Date. If any Interest Payment Date (other than an Interest Payment Date coinciding with the Stated Maturity or earlier Redemption Date, Purchase Date, or Fundamental Change Purchase Date) falls on a day that is not a Business Day, such Interest Payment Date will be postponed to the next succeeding Business Day and no interest on such payment will accrue for the period from and after the Interest Payment Date to such next succeeding Business Day, provided that, if such Business Day falls in the next succeeding calendar month, the Interest Payment Date will be the Business Day immediately preceding such Interest Payment Date. If the Stated Maturity, Redemption Date, Purchase Date or Fundamental Change Purchase Date of this Debenture would fall on a day that is not a Business Day, the required payment of interest, if any, and principal will be made on the next succeeding Business Day and no interest on such payment will accrue for the period from and after the Stated Maturity, Redemption Date, Purchase Date or Fundamental Change Purchase Date to such next succeeding Business Day. PAYING AGENT, CONVERSION AGENT AND REGISTRAR. Initially, the Trustee will act as Paying Agent, Conversion Agent and Registrar. The Issuer may appoint and change any Paying Agent, Conversion Agent, Registrar or co-registrar without notice, other than notice to the Trustee. The Issuer or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion Agent, Registrar or co-registrar. INDENTURE. The terms of the Debentures include those stated in the Indenture, the Supplemental Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as in effect from time to time (the "TIA"). The Debentures are subject to all such terms, and Holders are referred to the Indenture, Supplemental Indenture and the TIA for a statement of those terms. The Debentures are general unsecured obligations. The Indenture does not limit other indebtedness of the Issuer. REDEMPTION AT THE OPTION OF THE ISSUER. No sinking fund is provided for the Debentures. Prior to July 20, 2009, the Debentures shall not be redeemable at the option of the Issuer. Beginning on July 20, 2009 and until the Stated Maturity, the Debentures are redeemable for cash as a whole, or from time to time in part, at the option of the Issuer at a Redemption Price equal to 100% of the principal amount of the Debentures, plus accrued and unpaid interest (including Additional Interest, if any) to, but excluding, the Redemption Date, as provided in Article 4 of the Supplemental Indenture. A-7 If the Issuer redeems less than all of the outstanding Debentures, the Trustee will select the Debentures to be redeemed (i) by lot; (ii) pro rata; or (iii) by another method the Trustee considers fair and appropriate. If the Trustee selects a portion of a Holder's Debentures for partial redemption and the Holder converts a portion of the same Debentures, the converted portion shall be deemed to be from the portion selected for redemption. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 20 days but not more than 60 days before the Redemption Date to each Holder of Debentures to be redeemed at the Holder's registered address. If money sufficient to pay the Redemption Price of all Debentures (or portions thereof) to be redeemed on the Redemption Date is deposited with the Paying Agent prior to or on the Redemption Date, immediately after such Redemption Date interest shall cease to accrue on such Debentures or portions thereof. Debentures in denominations larger than $1,000 principal amount may be redeemed in part but only in integral multiples of $1,000. PURCHASE BY THE ISSUER AT THE OPTION OF THE HOLDER. Each Holder has the right to require the Issuer to purchase the Debentures held by such Holder on July 15, 2009, January 15, 2014 and January 15, 2019, or if any such day is not a Business Day, the next succeeding Business Day (each, a "PURCHASE DATE"). If required by any Holder, the Issuer shall purchase Debentures for cash at a Purchase Price equal to 100% of the principal amount thereof, plus accrued and unpaid interest (including Additional Interest, if any) to, but excluding, the Purchase Date, upon delivery of a Purchase Notice containing the information set forth in the Indenture, at any time from the opening of business on the date that is 20 Business Days prior to such Purchase Date until the close of business on the Business Day immediately preceding such Purchase Date and upon delivery of the Debentures to the Paying Agent by the Holder as set forth in the Supplemental Indenture. At the option of the Holder and subject to the terms and conditions of the Supplemental Indenture, the Issuer shall purchase all or a portion of the Debentures held by such Holder as of the date that is not less than 20 nor more than 35 Business Days after the date of the Issuer's notice to Holders of the occurrence of a Fundamental Change occurring prior to Stated Maturity for a Fundamental Change Purchase Price equal to 100% of the principal amount thereof, plus accrued and unpaid interest (including Additional Interest, if any) to, but excluding, the Fundamental Change Purchase Date, unless such Fundamental Change Purchase Date falls after a Regular Record Date and on or prior to the corresponding Interest Payment Date, in which case the Issuer shall pay the full amount of accrued and unpaid interest (including Additional Interest, if any) A-8 payable on such Interest Payment Date to the Holder at the close of business on such Regular Record Date. Holders have the right to withdraw any Purchase Notice or Fundamental Change Purchase Notice, as the case may be, by delivering to the Paying Agent a written notice of withdrawal in accordance with the provisions of the Supplemental Indenture. As provided in the Supplemental Indenture, if cash sufficient to pay the Purchase Price or Fundamental Change Purchase Price, as the case may be, of all Debentures or portions thereof to be purchased as of the Purchase Date or the Fundamental Change Purchase Date, as the case may be, is deposited with the Paying Agent on the Purchase Date or the Fundamental Change Purchase Date, as the case may be, all interest (including Additional Interest, if any) ceases to accrue on such Debentures (or portions thereof) immediately after such Purchase Date or Fundamental Change Purchase Date, as the case may be, and the Holder thereof shall have no other rights as such (other than the right to receive the Purchase Price or Fundamental Change Purchase Price, as the case may be, upon surrender of such Debenture). CONVERSION. Subject to the terms of the Supplemental Indenture, the Holder of a Debenture may convert the Debenture into shares of Common Stock at the Conversion Rate under the circumstances set forth in of the Supplemental Indenture; provided, however, the Issuer may satisfy its obligation with respect to any demand for conversion by delivering Common Stock, cash or a combination of cash and Common Stock. The Conversion Rate for the Debentures on any Conversion Date shall be determined as set forth in the Supplemental Indenture. Upon conversion of a Debenture, the Issuer shall deliver the Conversion Settlement Distribution within the time periods set forth in Section 5.02 of the Supplemental Indenture. A Debenture in respect of which a Holder has delivered a Purchase Notice or a Fundamental Change Purchase Notice exercising the option of such Holder to require the Issuer to purchase such Debenture may be converted only if such notice of exercise is withdrawn in accordance with the terms of the Indenture. A Holder's right to convert the Debentures into Common Stock of the Issuer is also subject to the Issuer's right to elect pursuant to Section 5.03 of the Supplemental Indenture to pay such Holder cash in lieu of delivering all or part of such Common Stock; the Issuer may, in accordance with the terms set forth in the Supplemental Indenture, irrevocably elect to pay the principal amount of Debentures tendered for conversion in cash and the remainder of the Conversion Obligation in shares of Common Stock. A-9 A Holder may convert a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000. No payment or adjustment shall be made for dividends on the Common Stock except as provided in the Supplemental Indenture. On conversion of a Debenture, any accrued and unpaid interest with respect to such Debenture that is attributable to the period from the most recent Interest Payment Date (or, if no Interest Payment Date has occurred, from the Issue Date) to the Conversion Date shall not be cancelled, extinguished or forfeited but rather shall be deemed paid in full to the Holder of such Debenture through the delivery of the Common Stock (together with the cash payment, if any, in lieu of fractional shares), or cash or a combination of cash and Common Stock in lieu thereof, in exchange for the Debenture being converted pursuant to the provisions hereof, and the fair market value of the Common Stock (together with the cash payment, if any, in lieu of fractional shares), or cash or a combination of cash and Common Stock in lieu thereof, shall be treated as issued, to the extent thereof, first in exchange for any accrued and unpaid interest attributable to the period from the most recent Interest Payment Date (or, if no Interest Payment Date has occurred, from the Issue Date) to the Conversion Date, and the balance, if any, of such fair market value shall be treated as issued in exchange for the principal amount of the Debenture being converted pursuant to the provisions hereof. Notwithstanding the preceding sentence, on conversion of a Debenture during the period from the close of business on any Regular Record Date immediately preceding any Interest Payment Date to the close of business on the Business Day immediately preceding such Interest Payment Date, the Holder on such Regular Record Date shall receive the interest payable on such Interest Payment Date. Debentures or portions thereof surrendered for conversion during the period from the close of business on any Regular Record Date immediately preceding any Interest Payment Date to the close of business on the Business Day immediately preceding such Interest Payment Date shall be accompanied by payment to the Issuer or its order, in New York Clearing House funds or other funds acceptable to the Issuer, of an amount equal to the interest payable on such Interest Payment Date with respect to the principal amount of Debentures or portions thereof being surrendered for conversion; provided that no such payment need be made if (1) the Issuer has specified a Redemption Date that occurs during the period from the close of business on a Regular Record Date to the close of business on the Interest Payment Date to which such Regular Record Date relates, (2) the Issuer has specified a Fundamental Change Purchase Date during such period or (3) only to the extent any overdue interest exists on the Conversion Date with respect to the Debentures converted. No fractional shares will be issued upon conversion; in lieu thereof, an amount will be paid in cash pursuant to Section 5.04 of the Supplemental Indenture. The Issuer shall deliver cash or a check in lieu of any fractional share of Common Stock. A-10 To convert a Debenture, a Holder must fulfill the conditions set forth in Section 5.02 of the Supplemental Indenture. The Conversion Rate will be adjusted as set forth in Article 5 of the Supplemental Indenture. DENOMINATIONS; TRANSFER; EXCHANGE. The Debentures are in fully registered form, without coupons, in denominations of $1,000 in principal amount and integral multiples of $1,000. A Holder may transfer or exchange Debentures in accordance with the Supplemental Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not transfer or exchange any Debentures selected for redemption (except, in the case of a Debenture to be redeemed in part, the portion of the Debenture not to be redeemed) or any Debentures in respect of which a Purchase Notice or Fundamental Change Purchase Notice has been given and not withdrawn (except, in the case of a Debenture to be purchased in part, the portion of the Debenture not to be purchased) or any Debentures for a period of 15 days before the mailing of a notice of redemption of Debentures to be redeemed. PERSONS DEEMED OWNERS. The registered Holder of this Debenture may be treated as the owner of this Debenture for all purposes; provided, however, that a holder of a beneficial interest in a Registered Global Security may directly enforce such holder's right to exchange such beneficial interest for Debentures in definitive form as set forth in the Supplemental Indenture. UNCLAIMED MONEY OR DEBENTURES. The Trustee and the Paying Agent shall return to the Issuer upon written request any money or securities held by them for the payment of any amount with respect to the Debentures that remains unclaimed for two years subject to applicable unclaimed property law. After return to the Issuer, Holders entitled to the money or securities must look to the Issuer for payment as general creditors unless an applicable abandoned property law designates another person. AMENDMENT; WAIVER. Subject to certain exceptions set forth in the Indenture and Supplemental Indenture, (i) the Indenture, the Supplemental Indenture or the Debentures may be amended with the written consent of the Holders of at least a majority in aggregate principal amount of the Debentures at the time outstanding and (ii) certain Defaults may be waived with the written consent of the Holders of a A-11 majority in aggregate principal amount of the Debentures at the time outstanding. The Issuer and the Trustee may amend the Indenture and the Supplemental Indenture under certain circumstances without the consent of the Holders, as described in the Indenture and the Supplemental Indenture. However, the Indenture requires the consent of each Holder that would be affected for certain specified amendments or modifications of the Indenture, the Supplemental Indenture and the Debentures. DEFAULTS AND REMEDIES. 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, the Debentures, or due to the default in the performance or breach of any other covenant or warranty of the Issuer applicable to the Debentures shall have occurred and be continuing, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Debentures then outstanding may then declare the principal of the Debentures 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 Debenture, 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 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. TRUSTEE DEALINGS WITH THE ISSUER. Subject to certain limitations imposed by the TIA, the Trustee under the Indenture and Supplemental Indenture, in its individual or any other capacity, may become the owner or pledgee of Debentures and may otherwise deal with and collect obligations owed to it by the Issuer or its Affiliates and may otherwise deal with the Issuer or its Affiliates with the same rights it would have if it were not Trustee. NO RECOURSE AGAINST OTHERS. No recourse under or upon any obligation, covenant or agreement contained in the Indenture, the Supplemental Indenture or in this Debenture, 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 A-12 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. AUTHENTICATION. This Debenture shall not be valid until an authorized signatory of the Trustee manually signs the Trustee's Certificate of Authentication on the other side of this Debenture. ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act). GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE, SUPPLEMENTAL INDENTURE AND THIS DEBENTURE. _______________ The Issuer will furnish to any Holder upon written request and without charge a copies of the Indenture and Supplemental Indenture. Wyeth Five Giralda Farms Madison, NJ 07940 A-13 Schedule I [Include Schedule I only for a Registered Global Security] WYETH Floating Rate Convertible Senior Debenture Due 2024 No. _______
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A-14 ASSIGNMENT FORM To assign this Debenture, fill in the form below: For value received ______________________________hereby sell(s), assign(s) and transfer(s) unto ___________________________________ (Please insert social security or other Taxpayer Identification Number of assignee) the within Debenture, and hereby irrevocably constitutes and appoints ______________________________________ attorney to transfer said Debenture on the books of Wyeth (the "ISSUER"), with full power of substitution in the premises. In connection with any transfer of the Debenture prior to the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision), the undersigned confirms that such Debenture is being transferred: [ ] To a person reasonably believed by the transferor to be a "QUALIFIED INSTITUTIONAL BUYER" in compliance with Rule 144A under the Securities Act of 1933, as amended; or [ ] Pursuant to an exemption from the registration requirements of the Securities Act of 1933, as amended, provided by Rule 144 thereunder (if available); or [ ] To the Issuer or a subsidiary thereof; or [ ] Pursuant to an effective Registration Statement under the Securities Act of 1933, as amended, and in accordance with all applicable securities laws of the states of the United States and other jurisdictions. Unless one of the boxes is checked, the Trustee or Registrar will refuse to register any of the Debentures evidenced by this certificate in the name of any person other than the registered holder thereof. Dated: ______________________ ______________________________ ______________________________ Signature(s) Signature(s) must be guaranteed by an "ELIGIBLE GUARANTOR INSTITUTION" meeting the requirements of the Security 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 A-15 by the Security registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. ______________________________ Signature Guarantee A-16 CONVERSION NOTICE To convert this Debenture into Common Stock of the Issuer, check the box: [ ] To convert only part of this Debenture, state the principal amount to be converted (which must be $1,000 or an integral multiple of $1,000): $ ___________________________ If you want the stock certificate made out in another person's name, fill in the form below: ________________________________________________________________________________ (Insert other person's soc. sec. or tax ID no.) ________________________________________________________________________________ (Print or type other person's name, address and zip code) Your Signature: _____________________________________________ (Sign exactly as your name appears on the other side of this Debenture) A-17 PURCHASE NOTICE TO: WYETH JPMORGAN CHASE BANK The undersigned registered owner of this Debenture hereby irrevocably acknowledges receipt of a notice from Wyeth (the "ISSUER") regarding the right of holders to elect to require the Issuer to purchase the Debentures and requests and instructs the Issuer to purchase the entire principal amount of this Debenture, or portion thereof (which is $1,000 principal amount or an integral multiple thereof) designated below, in accordance with the terms of the Supplemental Indenture at the price of 100% of the principal amount or proportional portion thereof, together with accrued interest (including Additional Interest, if any) to, but excluding, the Purchase Date, to the registered holder hereof. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture. The Debentures shall be purchased by the Issuer as of the applicable Purchase Date pursuant to the terms and conditions specified in the Supplemental Indenture. Dated: Signature(s): NOTICE: The above signatures of the holder(s) hereof must correspond with the name as written upon the face of the Debenture in every particular without alteration or enlargement or any change whatever. Debenture Certificate Number (if applicable): Principal amount to be purchased (if less than all): Social Security or Other Taxpayer Identification Number: A-18 OPTION OF HOLDER TO ELECT PURCHASE ON FUNDAMENTAL CHANGE TO: WYETH JPMORGAN CHASE BANK The undersigned registered owner of this Debenture hereby irrevocably acknowledges receipt of a notice from Wyeth (the "ISSUER") regarding the right of holders to elect to require the Issuer to purchase the Debentures upon a Fundamental Change and requests and instructs the Issuer pursuant to Section 7.01 of the Supplemental Indenture to purchase the entire principal amount of this Debenture, or portion thereof (which is $1,000 principal amount or an integral multiple thereof) designated below, in accordance with the terms of the Supplemental Indenture at the price of 100% of the principal amount or proportional portion thereof, together with accrued interest (including Additional Interest, if any) to, but excluding, the Fundamental Change Purchase Date, to the registered holder hereof. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Supplemental Indenture. The Debentures shall be repurchased by the Issuer as of the Fundamental Change Purchase Date pursuant to the terms and conditions specified in the Supplemental Indenture. Dated: Signature(s): NOTICE: The above signatures of the holder(s) hereof must correspond with the name as written upon the face of the Debenture in every particular without alteration or enlargement or any change whatever. Debenture Certificate Number (if applicable): Principal amount to be purchased (if less than all): Social Security or Other Taxpayer Identification Number: A-19 EX-4.4 4 y93495exv4w4.txt REGISTRATION RIGHTS AGREEMENT EXHIBIT 4.4 WYETH FLOATING RATE CONVERTIBLE SENIOR DEBENTURES DUE 2024 REGISTRATION RIGHTS AGREEMENT December 16, 2003 Citigroup Global Markets Inc. and J.P. Morgan Securities Inc. As representatives of the several Purchasers named in Schedule I to the Purchase Agreement Ladies and Gentlemen: Wyeth, a Delaware corporation (the "Company"), proposes to issue and sell to the Purchasers (as defined herein) upon the terms set forth in the Purchase Agreement (as defined herein) its Floating Rate Convertible Senior Debentures due 2024 (the "Securities"). As an inducement to the Purchasers to enter into the Purchase Agreement and in satisfaction of a condition to the obligations of the Purchasers thereunder, the Company agrees with the Purchasers for the benefit of Holders (as defined herein) from time to time of the Registrable Securities (as defined herein) as follows: 1. Definitions. (a) Capitalized terms used herein without definition shall have the meanings ascribed to them in the Purchase Agreement. As used in this Agreement, the following defined terms shall have the following meanings: "Additional Interest" has the meaning assigned thereto in Section 7(a) hereof. "Affiliate" of any specified person means any other person which, directly or indirectly, is in control of, is controlled by, or is under common control with such specified person. For purposes of this definition, control of a person means the power, direct or indirect, to direct or cause the direction of the management and policies of such person whether by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Closing Date" means the Firm Closing Date as defined in the Purchase Agreement. "Commission" means the United States Securities and Exchange Commission, or any other federal agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant statute for the particular purpose. "DTC" means The Depository Trust Company. "Effective Time" means the time at which the Commission declares the Shelf Registration Statement effective or at which the Shelf Registration Statement otherwise becomes effective. "Electing Holder" has the meaning assigned thereto in Section 3(a)(iv) hereof. "Exchange Act" means the United States Securities Exchange Act of 1934, as amended. "Holder" means any person that is the record owner of Registrable Securities (and includes any person that has a beneficial interest in any Registrable Security in book-entry form). "Indenture" means the Indenture, dated as of April 10, 1992, as amended on October 13, 1992, between the Company and JPMorgan Chase Bank (as successor to Chase Manhattan Bank), as amended and supplemented from time to time in accordance with its terms and as further supplemented by a Fourth Supplemental Indenture dated as of December 16, 2003 between the Company and JPMorgan Chase Bank, as amended and supplemented from time to time in accordance with its terms. "Managing Underwriters" means the investment banker or investment bankers and manager or managers that shall administer an underwritten offering, if any, conducted pursuant to Section 6 hereof. "NASD Rules" means the Rules of the National Association of Securities Dealers, Inc., as amended from time to time. "Notice and Questionnaire" means a Selling Security holder Notice and Questionnaire substantially in the form of Annex A to the Offering Memorandum dated December 10, 2003 relating to the offering of the Securities and, to the extent required, in the opinion of counsel to the Issuer, to comply with applicable law, may include additional questions or requests for additional information regarding Holders of Registrable Securities and the proposed distribution by such Holders. The term "person" means an individual, partnership, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof. "Prospectus" means the prospectus (including, without limitation, any preliminary prospectus, any final prospectus and any prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Securities Act) included in the Shelf Registration Statement, as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by the Shelf Registration Statement and by all other amendments and supplements to such prospectus, including all material incorporated by reference in such prospectus and all documents filed after the date of such prospectus by the Company under the Exchange Act and incorporated by reference therein. "Purchase Agreement" means the purchase agreement, dated as of December 10, 2003 between the Purchasers and the Company relating to the Securities. "Purchasers" means the Purchasers named in Schedule I to the Purchase Agreement. "Registrable Securities" means all or any portion of the Securities issued from time to time under the Indenture in registered form and the shares of Stock issuable upon conversion of such Securities; provided, however, that a security ceases to be a Registrable Security when it is no longer a Restricted Security. 2 "Registration Default" has the meaning assigned thereto in Section 7(a) hereof. "Restricted Security" means any Security or share of Stock issuable upon conversion thereof, except any such Security or share of Stock that (i) has been effectively registered under the Securities Act and disposed of in a manner contemplated by the Shelf Registration Statement, (ii) has been transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any successor provision thereto) (which as of the Issue Date is two years), (iii) has otherwise been transferred and a new Security or share of Stock not subject to transfer restrictions under the Securities Act has been delivered by or on behalf of the Company in accordance with Section 2.06 of the Indenture or (iv) ceases to be outstanding (whether as a result of redemption, repurchase and cancellation, conversion or otherwise); provided that shares of Common Stock issuable upon conversion of Securities which Securities cease to be Restricted Securities shall cease to be Restricted Securities at such time. "Rules and Regulations" means the published rules and regulations of the Commission promulgated under the Securities Act or the Exchange Act, as in effect at any relevant time. "Scheduled Window Period" means the period set forth in clause (i) in the definition of Window Period. "Securities Act" means the United States Securities Act of 1933, as amended. "Shelf Registration" means a registration effected pursuant to Section 2 hereof. "Shelf Registration Statement" means a "shelf" registration statement filed under the Securities Act providing for the registration of, and the sale on a continuous or delayed basis by the Holders of, all of the Registrable Securities pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the Commission, filed by the Company pursuant to the provisions of Section 2 of this Agreement, including the Prospectus contained therein, any amendments and supplements to such registration statement, including post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement. "Stock" means the Company's common stock, par value $0.33 1/3 per share (and any securities into or for which such Stock has been converted or exchanged). "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, or any successor thereto, and the rules, regulations and forms promulgated thereunder, as the same shall be further amended from time to time. "Window Period" means each of the following periods following the Effective Time: (i) the 20 calendar day period commencing on the Trading Day (as defined in the Indenture) immediately following the date the Company is required to file a Quarterly Report on Form 10-Q or Annual Report on Form 10-K under the Exchange Act, which such dates are anticipated to be (A) 45 days after the end of the fiscal quarters ended June 30, 2004 and September 30, 2004, (B) 60 days after the end of the fiscal years ended December 31, 2004 and December 31, 2005 and (C) 40 days after the end of the fiscal quarters ended March 31, 2005, June 30, 2005 and September 30, 2005. 3 (ii) the period commencing on the date a notice of redemption is mailed to each Holder in accordance with Section 12.2 of the Indenture and ending on the redemption date set forth in such notice; (iii) the period commencing on the date of delivery of the Company's notice of the occurrence of a Fundamental Change (as defined in the Indenture) in accordance with Article 7 of the Fourth Supplemental Indenture and ending on the Fundamental Change Purchase Date (as defined in the Indenture), unless the Company elects to pay all conversions of Securities during such period entirely in cash under the terms of the Indenture; and (iv) the period commencing on the date of delivery of the Company's notice of any transaction specified in Section 5.01(d) of the Fourth Supplemental Indenture and ending on the earlier of the Business Day following the "ex-dividend" date (within the meaning of the Indenture) for such transaction or the Company's public announcement that such transaction will not occur, unless the Company elects to pay all conversions of Securities during such period entirely in cash under the terms of the Indenture, in each case until the date on which no Restricted Securities are outstanding. The term "underwriter" means any underwriter of Registrable Securities in connection with an offering thereof under a Shelf Registration Statement. (b) Wherever there is a reference in this Agreement to a percentage of the "principal amount" of Registrable Securities or to a percentage of Registrable Securities, Stock shall be treated as representing the principal amount of Securities that was surrendered for conversion or exchange in order to receive such number of shares of Stock. 2. Shelf Registration. (a) The Company shall, no later than 90 calendar days following the Closing Date, file with the Commission a Shelf Registration Statement relating to the offer and sale of the Registrable Securities by the Holders from time to time in accordance with the methods of distribution elected by such Holders in accordance with the terms set forth in the Notice and Questionnaire and set forth in such Shelf Registration Statement; provided that in no event will such method(s) of distribution take the form of an underwritten offering of the Registrable Securities without the prior agreement of the Company and, thereafter, shall use its reasonable efforts to cause such Shelf Registration Statement to be declared effective under the Securities Act no later than 180 calendar days following the Closing Date; provided, however, that the Company may, upon written notice to all Holders, postpone having the Shelf Registration Statement declared effective for a reasonable period not to exceed 90 calendar days if the Company possesses material non-public information, the disclosure of which would have a material adverse effect on the Company and its subsidiaries taken as a whole; provided, further, however, that no Holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Holder is an Electing Holder. (b) The Company shall use its reasonable efforts: (i) to keep the Shelf Registration Statement continuously effective under the Securities Act during any Window Period in order to permit the Prospectus forming a 4 part thereof to be usable by Electing Holders; provided, however, that the Company need not keep such Shelf Registration Statement continuously effective or deliver the Prospectus forming a part thereof to be usable by Electing Holders during a Scheduled Window Period if: (A) during such Scheduled Window Period the Company is in possession of material nonpublic information, the disclosure of which would have a material adverse effect on the Company and its subsidiaries taken as a whole and (B) the Company provides written notice to Holders of Registrable Securities of its suspension of the Shelf Registration Statement during any such Scheduled Window Period pursuant to this Section 2(b)(i). If the Company suspends the use of a Shelf Registration Statement at any time during such Scheduled Window Period pursuant to this Section 2(b)(i), the Company shall cause the Shelf Registration Statement to be continuously effective and available for the sale of Registrable Securities as soon as the Company is no longer in possession of such material nonpublic information, for another 20 calendar day period (such 20 day period shall be deemed for the purposes of this Registration Rights Agreement a new Scheduled Window Period). The Company shall notify holders of Registrable Securities at least five days in advance of the commencement of such 20 calendar day period. (ii) subject to Section 2(b)(i) above, after the Effective Time of the Shelf Registration Statement, following the request of any Holder of Registrable Securities that is not then an Electing Holder, to take any action reasonably necessary to enable such Holder to use the Prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such Holder as a selling securityholder in the Shelf Registration Statement in accordance with the procedures set forth in Section 3(a) hereof or any action necessary to cause the Commission, as promptly as practicable, to declare any post-effective amendment to the Shelf Registration Statement effective. Nothing in this subparagraph shall relieve such Holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(a)(ii) hereof. The Company shall be deemed not to have used its reasonable efforts to keep the Shelf Registration Statement effective during a Window Period if the Company voluntarily takes any action that would result in Holders of Registrable Securities covered thereby not being able to offer and sell any of such Registrable Securities during that period, unless such action is taken pursuant to Section 2(b)(i) or is required by applicable law and the Company thereafter promptly complies with the requirements of paragraph 3(j) below. 3. Registration Procedures. In connection with the Shelf Registration Statement, the following provisions shall apply: (a)(i) Not less than 30 calendar days prior to the Effective Time of the Shelf Registration Statement, the Company shall mail the Notice and Questionnaire to the Holders of Registrable Securities along with notice of (A) the fact that the Company has filed or intends to file the Shelf Registration Statement with the Commission and (B) the deadline, as set forth in this clause (i) for any Holder to return such Notice and Questionnaire to the Company in order to be named as a selling securityholder in the Shelf Registration Statement as of the Effective Time. No Holder shall be entitled to have its Restricted Securities included in the Shelf Registration Statement pursuant to this Agreement or to be named as a selling securityholder in the Shelf Registration Statement as of the Effective Time, unless such Holder has returned a completed and signed Notice and Questionnaire to the Company at least five Business Days 5 prior to the Effective Time; provided, however, that Holders of Registrable Securities shall have at least 28 calendar days from the date on which the Notice and Questionnaire is first mailed to such Holders to return a completed and signed Notice and Questionnaire to the Company. Upon receipt of a written request for additional information from the Company, each Holder who intends to be named as a selling securityholder in the Shelf Registration Statement shall furnish to the Company in writing, within five business days after such Holder's receipt of such request, such additional information regarding such Holder and the proposed distribution by such Holder of its Restricted Securities, in connection with the Shelf Registration Statement or Prospectus included therein and in any application to be filed with or under state securities law, to the extent required, in the opinion of counsel to the Issuer, to comply with applicable law. In addition, each Holder of Registrable Securities included in the Shelf Registration Statement agrees to furnish promptly to the Issuer all information reasonably required to be disclosed in order to make information previously furnished to the Issuer by such Holder not materially misleading in the opinion of counsel to the Issuer. Each Holder further agrees that it will not use or distribute any Prospectus except during a Window Period. (ii) After the Effective Time of the Shelf Registration Statement, the Company shall, upon the request of any Holder of Registrable Securities that is not then an Electing Holder, promptly send a Notice and Questionnaire to such Holder. The Company shall not be required to take any action to name such Holder as a selling securityholder in the Shelf Registration Statement or to enable such Holder to use the Prospectus forming a part thereof for resales of Registrable Securities until such Holder has returned a completed and signed Notice and Questionnaire to the Company. (iii) Subject to Section 2(b)(i), on the fifth Business Day prior to the commencement of any Scheduled Window Period, the Company shall file an amendment to the Shelf Registration Statement or supplement to the related Prospectus with respect to all completed Notice and Questionnaires received from Electing Holders on or prior to the tenth Business Day prior to such Scheduled Window Period. In respect of any Window Period other than a Scheduled Window Period, on the date of commencement of such Window Period, the Company shall make a public announcement of such Window Period by a release to Reuters Economic Services and Bloomberg Business News, and on the fifth Business Day following the announcement of such Window Period, shall file an amendment to the Shelf Registration Statement or supplement to the related Prospectus with respect to all completed Notice and Questionnaires received from Electing Holders prior to such fifth Business Day in order to name such Electing Holders as selling securityholders under the Shelf Registration Statement. (iv) The term "Electing Holder" shall mean any Holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(a)(i), 3(a)(ii) or 3(a)(iii) hereof. (b) The Company shall furnish to each Electing Holder, three business days prior to the Effective Time, a copy of the Shelf Registration Statement initially filed with the Commission (except to the extent that such documents are available by EDGAR), and shall furnish to such Holders, three business days prior to the filing thereof with the Commission, copies of each amendment thereto and each amendment or supplement, if any, to the Prospectus included therein (other than amendments or supplements adding other Holders as Electing Holders or otherwise affecting other Holders only), and shall use its reasonable efforts to reflect in each 6 such document, or in a subsequent filing, at the Effective Time or when so filed with the Commission, as the case may be, such comments as such Holders and their respective counsel reasonably may propose within two business days of the delivery of such copies to such Holders. (c) The Company shall promptly take such action as may be necessary so that (i) each of the Shelf Registration Statement and any amendment thereto and the Prospectus forming a part thereof and any amendment or supplement thereto (and each report or other document incorporated therein by reference in each case) complies in all material respects with the Securities Act and the Exchange Act and the respective rules and regulations thereunder, (ii) each of the Shelf Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) each of the Prospectus forming a part of the Shelf Registration Statement, and any amendment or supplement to such Prospectus, does not at any time during any Window Period include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (d) The Company shall promptly advise each Electing Holder, and shall confirm such advice in writing if so requested by any such Electing Holder: (i) when a Shelf Registration Statement and any amendment thereto has been filed with the Commission and when a Shelf Registration Statement or any post-effective amendment thereto has become effective, in each case by making a public announcement thereof by release made to Reuters Economic Services and Bloomberg Business News or publishing the information on our web site or through such other public medium as we may use at that time; (ii) of any request by the Commission for amendments or supplements to the Shelf Registration Statement or the Prospectus included therein or for additional information relating thereto; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of any proceedings for such purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities included in the Shelf Registration Statement for sale in any jurisdiction or the initiation of any proceeding for such purpose; and (v) of the occurrence of any event or the existence of any state of facts that requires the making of any changes in the Shelf Registration Statement or the Prospectus included therein so that, as of such date (but only during any Window Period), such Shelf Registration Statement and Prospectus do not contain an untrue statement of a material fact and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading (which advice shall be accompanied by an instruction to such Holders to suspend the use of the Prospectus until the requisite changes have been made). 7 (e) The Company shall use its reasonable efforts to prevent the issuance, and if issued to obtain the withdrawal at the earliest possible time, of any stop order suspending the effectiveness of the Shelf Registration Statement. (f) The Company shall furnish to each Electing Holder, without charge, at least one copy of the Shelf Registration Statement and all post-effective amendments thereto, including financial statements and schedules; provided that to the extent such document is available by EDGAR the Company shall be deemed to have complied with this subsection. (g) The Company shall, during any Window Period, deliver to each Electing Holder, without charge, as many copies of the Prospectus (including each preliminary Prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto (other than amendments or supplements adding other Holders as Electing Holders or otherwise affecting other Holders only) as such Electing Holder may reasonably request; and the Company consents (except during the continuance of any event or the existence of any state of facts described in Section 3(d)(v) above) to the use of the Prospectus and any amendment or supplement thereto by each of the Electing Holders in connection with the offering and sale of the Registrable Securities covered by the Prospectus and any amendment or supplement thereto during any Window Period. (h) Prior to any offering of Registrable Securities pursuant to the Shelf Registration Statement, the Company shall (i) register or qualify or cooperate with the Electing Holders and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or "blue sky" laws of such jurisdictions within the United States as any Electing Holder may reasonably request, (ii) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers and sales in such jurisdictions (during any Window Period) for so long as may be necessary to enable any Electing Holder or underwriter, if any, to complete its distribution of Registrable Securities pursuant to the Shelf Registration Statement, and (iii) take any and all other actions necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities (during any Window Period); provided, however, that in no event shall the Company be obligated to (A) register or qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to so qualify but for this Section 3(h) or (B) file any general consent to service of process in any jurisdiction where it is not as of the date hereof so subject. (i) Unless any Registrable Securities shall be in book-entry only form, the Company shall cooperate with the Electing Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to the Shelf Registration Statement, which certificates, if so required by any securities exchange upon which any Registrable Securities are listed, shall be penned, lithographed or engraved, or produced by any combination of such methods, on steel engraved borders, and which certificates shall be free of any restrictive legends and in such permitted denominations and registered in such names as Electing Holders may request in connection with the sale of Registrable Securities pursuant to the Shelf Registration Statement. (j) Upon the occurrence of any event or the existence of any state of facts contemplated by paragraph 3(d)(v) above, the Company shall promptly prepare a post-effective amendment to any Shelf Registration Statement or an amendment or supplement to the related Prospectus or file any other required document so that, as thereafter delivered to purchasers of 8 the Registrable Securities included therein, the Prospectus will not include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Electing Holders of the occurrence of any event or the existence of any state of facts contemplated by paragraph 3(d)(v) above, the Electing Holder shall suspend use of the Prospectus until (i) such Electing Holder's receipt of the copies of the amended or supplemented prospectus or (ii) such Electing Holder is advised in writing that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated by reference, in the Prospectus. (k) Not later than the Effective Time of the Shelf Registration Statement, the Company shall provide a CUSIP number for the Registrable Securities sold under the Shelf Registration Statement that are debt securities. (l) The Company shall use its reasonable efforts to comply with all applicable Rules and Regulations, and to make generally available to its securityholders as soon as practicable, after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Shelf Registration Statement, (ii) the effective date of each post-effective amendment to the Shelf Registration Statement (other than post-effective amendments adding Elected Holders or otherwise affecting other Elected Holders) and (iii) the date of each filing by the Company with the Commission of an Annual Report on Form 10-K that is incorporated by reference in the Shelf Registration Statement, an earnings statement of the Company and its subsidiaries (audited to the extent reasonably available) complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158). (m) In the event of an underwritten offering conducted pursuant to Section 6 hereof, the Company shall, if requested, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Shelf Registration Statement such information as the Managing Underwriters reasonably agree should be included therein and to which the Company does not reasonably object and shall make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment. (n) The Company shall enter into such customary agreements (including an underwriting agreement in customary form in the event of an underwritten offering conducted pursuant to Section 6 hereof) and take all other appropriate action in order to expedite and facilitate the registration and disposition of the Registrable Securities, and in connection therewith, if an underwriting agreement is entered into, cause the same to contain indemnification provisions and procedures substantially identical to those set forth the Purchase Agreement. (o) The Company shall: (i)(A) subject to the execution of a confidentiality agreement reasonably acceptable to the Company, make reasonably available for inspection, during reasonable business hours, by any underwriter participating in any disposition pursuant to the Shelf Registration Statement, and any attorney, accountant or other agent retained by any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (B) cause 9 the Company's officers, directors and employees to supply all information reasonably requested by any such underwriter, attorney, accountant or agent in connection with the Shelf Registration Statement, in each case, as shall be reasonably necessary to enable them to exercise any applicable due diligence defenses; provided, however, that all records, information and documents shall be kept confidential by any such underwriter, attorney, accountant or agent in accordance with such confidentiality agreement, unless such disclosure is made as reasonably necessary to establish any due diligence defenses in connection with a court proceeding or required by law, or such records, information or documents become available to the public generally or through a third party without an accompanying obligation of confidentiality; (ii) in connection with any underwritten offering conducted pursuant to Section 6 hereof, make such representations and warranties to the Electing Holders participating in such underwritten offering and to the Managing Underwriters, in form, substance and scope as are customarily made by the Company to underwriters in primary underwritten offerings of convertible debt securities and covering matters set forth in the Purchase Agreement, it being understood and agreed that representations and warranties comparable to those contemplated by the Purchase Agreement, as amended to reflect a registered offering, shall be satisfactory; (iii) in connection with any underwritten offering conducted pursuant to Section 6 hereof, obtain opinions of counsel to the Company (which counsel and opinions in form, scope and substance shall be reasonably satisfactory to the Managing Underwriters, it being understood and agreed that opinions comparable to those contemplated by the Purchase Agreement and delivered pursuant to the Purchase Agreement, as amended to reflect a registered offering, shall be satisfactory) addressed to each Electing Holder participating in such underwritten offering and the underwriters, covering such matters as are customarily covered in opinions requested in primary underwritten offerings by the Company of convertible debt securities (it being agreed that the matters to be covered by such opinions shall include, in form, scope and substance comparable to the opinions contemplated by the Purchase Agreement and delivered pursuant to the Purchase Agreement, as amended to reflect a registered offering, as of the date of the opinion and as of the Effective Time of the Shelf Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Shelf Registration Statement and the Prospectus, including the documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be stated therein or necessary to make the statements therein not misleading); (iv) in connection with any underwritten offering conducted pursuant to Section 6 hereof, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Shelf Registration Statement), addressed to each Electing Holder participating in such underwritten offering (if such Electing Holder has provided such letter, representations or documentation, if any, required for such "cold comfort" letter to be so addressed) and the underwriters, in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with primary underwritten offerings by the Company of convertible debt securities (it being understood and agreed 10 that "cold comfort" letters comparable to those contemplated by the Purchase Agreement and delivered pursuant to the Purchase Agreement, as amended to reflect a registered offering, shall be satisfactory); (v) in connection with any underwritten offering conducted pursuant to Section 6 hereof, deliver such documents and certificates as may be reasonably requested by any Electing Holders participating in such underwritten offering and the Managing Underwriters, if any, including, without limitation, certificates to evidence compliance with Section 3(j) hereof and with any conditions contained in the underwriting agreement or other agreements entered into by the Company, which certificates in each case shall be comparable to those required by the terms and conditions of the Purchase Agreement and delivered pursuant to the Purchase Agreement, as amended to reflect a registered offering. (p) The Company will use its reasonable efforts to cause the Stock issuable upon conversion of the Securities to be listed on the New York Stock Exchange or other stock exchange or trading system on which the Stock primarily trades on or prior to the Effective Time of the Shelf Registration Statement hereunder. (q) In the event that any broker-dealer registered under the Exchange Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of the NASD Rules (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Shelf Registration Statement, whether as a Holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, by (A) engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Shelf Registration Statement, to exercise usual standards of due diligence in respect thereto and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the extent of the indemnification of underwriters provided in the Purchase Agreement, and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules. (r) The Company shall use its reasonable efforts to take all other steps necessary to effect the registration of the Registrable Securities covered by the Shelf Registration Statement contemplated hereby. 4. Registration Expenses. Except as otherwise provided in Section 3, the Company shall bear all fees and expenses incurred in connection with the performance of its obligations under Sections 2, 3 and 6 hereof. Each Electing Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Electing Holder's Registrable Securities pursuant to the Shelf Registration Statement, and the fees and disbursements of its counsel and other representatives. 5. Indemnification and Contribution. (a) Indemnification by the Company. Upon the registration of the Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify and hold harmless each 11 Electing Holder and each underwriter, selling agent or other securities professional, if any, which facilitates the disposition of Registrable Securities, and each person, if any, who controls such Electing Holder, underwriter, selling agent or other securities professional within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each such person being sometimes referred to as an "Indemnified Person") from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by any Indemnified Person in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement under which Registrable Securities are to be registered under the Securities Act or any Prospectus contained therein or furnished by the Company to any Indemnified Person (as amended or supplemented, if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon and in conformity with information relating to any Indemnified Person furnished to the Company in writing by such Indemnified Person expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any Shelf Registration Statement under which Registrable Securities are to be registered under the Securities Act or any Prospectus contained therein or furnished by the Company to any Indemnified Person shall not inure to the benefit of any Indemnified Person from whom the person asserting any such losses, claims, damages or liabilities purchased Registrable Securities, or any person controlling such Indemnified Person, if a copy of the Shelf Registration Statement under which Registrable Securities are to be registered under the Securities Act or any Prospectus contained therein or furnished by the Company to any Indemnified Person (as then amended or supplemented, if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Indemnified Person to such person, if required by law so to have been delivered, at or prior to the written confirmation of the disposition of the Registrable Securities to such person, and if the Shelf Registration Statement under which Registrable Securities are to be registered under the Securities Act or any Prospectus contained therein or furnished by the Company to any Indemnified Person (as so amended or supplemented) would have cured the defect giving rise to such losses claims, damages or liabilities. (b) Indemnification by the Electing Holders and any Agents and Underwriters. Each Electing Holder agrees, as a consequence of the inclusion of any of such Electing Holder's Registrable Securities in such Shelf Registration Statement, and each underwriter, selling agent or other securities professional, if any, which facilitates the disposition of Registrable Securities shall agree, as a consequence of facilitating such disposition of Registrable Securities, severally and not jointly, to indemnify and hold harmless the Company, its directors and officers and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity contained in subsection (a) above from the Company to such Electing Holder, underwriter, selling agent or other securities professional, but only with reference to information relating to such Electing Holder, underwriter, selling agent or other securities professional furnished to the Company by such Electing Holder, underwriter, selling agent or other securities professional in writing expressly for use in the Registration Statement under which Registrable Securities 12 are to be registered under the Securities Act or any Prospectus contained therein or furnished by the Company to any Electing Holder, underwriter, selling agent or other securities professional or any amendments or supplements thereto. (c) Notices of Claims, Etc. In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) above, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing; provided that the failure to notify the indemnifying party shall not relieve it from any liability that it may have under this Section 5 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to any indemnified party otherwise than under this Section 5. The indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them or (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any applicable local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Indemnified Person, in the case of parties indemnified pursuant to paragraph (a) above, and by the Company, in the case of parties indemnified pursuant to paragraph (b) above. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party. (d) Contribution. If the indemnification provided for in this Section 5 is unavailable to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein (other than because such indemnification by its terms does not apply), then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with 13 the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or by such indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation (even if the Electing Holders or any underwriters, selling agents or other securities professionals or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Electing Holders and any underwriters, selling agents or other securities professionals in this Section 5(d) to contribute shall be several in proportion to the percentage of principal amount of Registrable Securities registered or underwritten, as the case may be, by them and not joint. (e) Notwithstanding any other provision of this Section 5, in no event will any (i) Electing Holder be required to undertake liability to any person under this Section 5 for any amounts in excess of the dollar amount of the proceeds to be received by such Holder from the sale of such Holder's Registrable Securities (after deducting any fees, discounts and commissions applicable thereto) pursuant to any Shelf Registration Statement under which such Registrable Securities are to be registered under the Securities Act and (ii) underwriter, selling agent or other securities professional be required to undertake liability to any person hereunder for any amounts in excess of the total price at which the Registrable Securities underwritten by it were offered to the public. (f) The obligations of the Company under this Section 5 shall be in addition to any liability which the Company may otherwise have to any Indemnified Person and the obligations of any Indemnified Person under this Section 5 shall be in addition to any liability which such Indemnified Person may otherwise have to the Company. The remedies provided in this Section 5 are not exclusive and shall not limit any rights or remedies which may otherwise be available to an indemnified party at law or in equity. The obligations of the Company under this Section 5 shall extend, upon the same terms and conditions, to each person, if any, who controls any Indemnified Person within the meaning of the Securities Act; and the obligations of the Indemnified Persons under this Section 5 shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Securities Act. 6. Underwritten Offering. Any Holder of Registrable Securities who desires to do so may sell Registrable Securities (in whole or in part) in an underwritten offering; provided that (i) the Electing Holders of at least 33-1/3% in aggregate principal amount of the Registrable Securities then covered by the Shelf Registration Statement shall request such an offering and (ii) at least such aggregate principal amount of such Registrable Securities shall be included in such offering; and provided further that no underwritten offering may be conducted without the 14 prior agreement of the Company. Upon receipt of such a request and consent by the Company to such request, the Company shall provide all Holders of Registrable Securities written notice of the request, which notice shall inform such Holders that they have the opportunity to participate in the offering. In any such underwritten offering, the investment banker or bankers and manager or managers that will administer the offering will be selected by, and the underwriting arrangements with respect thereto (including the size of the offering) will be approved by, the holders of a majority of the Registrable Securities to be included in such offering; provided, however, that such investment bankers and managers and underwriting arrangements must be reasonably satisfactory to the Company. No Holder may participate in any underwritten offering contemplated hereby unless (a) such Holder agrees to sell such Holder's Registrable Securities to be included in the underwritten offering in accordance with any approved underwriting arrangements, (b) such Holder completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents required under the terms of such approved underwriting arrangements, and (c) if such Holder is not then an Electing Holder, such Holder returns a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(a)(ii) hereof within a reasonable amount of time before such underwritten offering. The Holders participating in any underwritten offering shall be responsible for any underwriting discounts and commissions and fees and, subject to Section 4 hereof, expenses of their own counsel. The Company shall pay all expenses customarily borne by issuers in an underwritten offering, including but not limited to filing fees, the fees and disbursements of its counsel and independent public accountants and any printing expenses incurred in connection with such underwritten offering. Notwithstanding the foregoing or the provisions of Section 3(n) hereof, upon receipt of a request from the Managing Underwriter or a representative of holders of a majority of the Registrable Securities to be included in an underwritten offering to prepare and file an amendment or supplement to the Shelf Registration Statement and Prospectus in connection with an underwritten offering, the Company may delay the filing of any such amendment or supplement for up to 90 days if the Board of Directors, Chief Executive Officer or Chief Financial Officer of the Company shall have determined in good faith that the Company has a bona fide business reason for such delay. 7. Additional Interest. (a) The following shall each constitute a "Registration Default": (i) on or prior to the 90th day following the Closing Date, a Shelf Registration Statement has not been filed with the Commission, (ii) on or prior to the 180th day following the Closing Date, such Shelf Registration Statement is not declared effective by the Commission, subject to any postponement by the Company in accordance with the proviso in Sections 2(a) hereof, (iii) at any time during a Window Period, the Shelf Registration Statement or Prospectus thereunder ceases to be effective or fails to be available, subject to Section 2(b)(i); provided, however, that a Registration Default shall be deemed to have occurred if the Company shall not have designated a new Scheduled Window Period pursuant to Section 2(b)(i) on or prior to the next Scheduled Window Period, such default to be deemed to occur on the commencement of such next Scheduled Window Period; or 15 (iv) the Company fails to perform any of its obligations under Section 3(a) to file any amendment or supplement to the Shelf Registration Statement and related Prospectus by the date therein prescribed. (b) Upon the occurrence and during the continuation of a Registration Default, the Company shall be required to pay additional interest on the Securities ("Additional Interest") from and including the day following such Registration Default until (i) the Shelf Registration Statement is filed (in the case of a Registration Default occurring under clause (a)(i) above), (ii) the Shelf Registration Statement is subsequently declared effective (in the case of a Registration Default occurring under clause (a)(ii) above), (iii) the date the Shelf Registration Statement subsequently becomes effective or becomes useable (in the case of a Registration Default occurring under clause (a)(iii) above) and (iv) the date the Company cures any failure to perform its obligations under Section 3(a) (in the case of a Registration Default occurring under clauses (a)(iv) above). Additional Interest shall accrue at a rate per annum equal to an additional one-quarter of one percent (0.25%) of the principal amount of Securities to and including the 90th day following such Registration Default, and one-half of one percent (0.50%) thereof from and after the 91st day following such Registration Default; provided that in all events such Additional Interest shall cease to accrue after such Securities are no longer Restricted Securities. (c) Any amounts to be paid as Additional Interest pursuant to paragraph (b) of this Section 7 shall be paid in cash semi-annually in arrears, with the first semi-annual payment due on the first Interest Payment Date (as defined in the Indenture), as applicable, following the date of such Registration Default. Such Additional Interest will accrue at the rates set forth in paragraph (b) of this Section 7 on the principal amount of the Securities. (d) Except as provided in Section 8(b) hereof, the Additional Interest as set forth in this Section 7 shall be the exclusive monetary remedy available to the Holders of Registrable Securities for such Registration Default. In no event shall the Company be required to pay Additional Interest in excess of the applicable maximum amount of one-half of one percent (0.50%) set forth above, regardless of whether one or multiple Registration Defaults exist. 8. Miscellaneous. (a) Other Registration Rights. The Company may grant registration rights that would permit any person that is a third party the right to piggy-back on any Shelf Registration Statement, provided that if the Managing Underwriter of any underwritten offering conducted pursuant to Section 6 hereof notifies the Company and the Electing Holders that the total amount of securities which the Electing Holders and the holders of such piggy-back rights intend to include in any Shelf Registration Statement is so large as to materially threaten the success of such offering (including the price at which such securities can be sold), then the amount, number or kind of securities to be offered for the account of holders of such piggy-back rights will be reduced to the extent necessary to reduce the total amount of securities to be included in such offering to the amount, number and kind recommended by the Managing Underwriter prior to any reduction in the amount of Registrable Securities to be included in such Shelf Registration Statement. (b) Specific Performance. The parties hereto acknowledge that there would be no adequate remedy at law if the Company fails to perform any of its obligations hereunder and that the Purchasers and the Holders from time to time may be irreparably harmed by any such 16 failure, and accordingly agree that the Purchasers and such Holders, in addition to any other remedy to which they may be entitled at law or in equity and without limiting the remedies available to the Electing Holders under Section 7 hereof, shall be entitled to compel specific performance of the obligations of the Company under this Agreement in accordance with the terms and conditions of this Agreement, in any court of the United States or any State thereof having jurisdiction. (c) Amendments and Waivers. This Agreement, including this Section 8(c), may be amended, and waivers or consents to departures from the provisions hereof may be given, only by a written instrument duly executed by the Company and the holders of a majority in aggregate principal amount of Registrable Securities then outstanding; provided, however, that no change to the timing or amount of Additional Interest payable to any holder of Registrable Securities may be made without the consent of such holders. Each Holder of Registrable Securities outstanding at the time of any such amendment, waiver or consent or thereafter shall be bound by any amendment, waiver or consent effected pursuant to this Section 8(c), whether or not any notice, writing or marking indicating such amendment, waiver or consent appears on the Registrable Securities or is delivered to such Holder. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders of Registrable Securities whose securities are being sold pursuant to a Shelf Registration Statement and that does not directly or indirectly affect the rights of other Holders of Registrable Securities being sold by such Holders pursuant to such Shelf Registration Statement provided that the provisions of this sentence may not be amended, modified or supplemented except in accordance with the provisions of the immediately preceding sentence. (d) Notices. All notices and other communications provided for or permitted hereunder shall be given as provided in the Indenture. A document, notice or advice shall be deemed to have been furnished or mailed to the Holders of Restricted Securities if it is provided to the registered holders of the Restricted Securities. (e) Parties in Interest. The parties to this Agreement intend that all Holders of Registrable Securities shall be entitled to receive the benefits of this Agreement and that any Electing Holder shall be bound by the terms and provisions of this Agreement by reason of such election with respect to the Registrable Securities which are included in a Shelf Registration Statement. All the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective successors and assigns of the parties hereto and any Holder from time to time of the Registrable Securities to the aforesaid extent; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement or Indenture. In the event that any transferee of any Holder of Registrable Securities shall acquire Registrable Securities, in any manner, whether by gift, bequest, purchase, operation of law or otherwise, such transferee shall, without any further writing or action of any kind, be entitled to receive the benefits of and, if an Electing Holder, be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement to the aforesaid extent (including providing to the Company all information required, including updates to its Notice and Questionnaire, to the extent required, in the opinion of counsel to the Issuer, to comply with applicable law). (f) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be 17 deemed to be an original and all of which taken together shall constitute one and the same agreement. (g) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. (i) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired or affected thereby, it being intended that all of the rights and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law. (j) Survival. The respective indemnities, agreements, representations, warranties and other provisions set forth in this Agreement or made pursuant hereto shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Electing Holder, any director, officer or partner of such Holder, any agent or underwriter, any director, officer or partner of such agent or underwriter, or any controlling person of any of the foregoing, and shall survive the transfer and registration of the Registrable Securities of such Holder. 18 Please confirm that the foregoing correctly sets forth the agreement between the Company and you. Very truly yours, Wyeth By: /s/ Jack M. O'Connor --------------------------- Name: Jack M. O'Connor Title: Vice President and Treasurer Accepted as of the date hereof: Citigroup Global Markets Inc. By: /s/ A. Scott Daniel -------------------------------- Name: A. Scott Daniel Title: Director J.P. Morgan Securities Inc. By: /s/ Paul O'Hern --------------------------------- Name: Paul O'Hern Title: Vice President On behalf of each of the Purchasers 19 EX-5.1 5 y93495exv5w1.txt OPINION OF SIMPSON THACHER & BARTLETT LLP EXHIBIT 5.1 February 3, 2004 Wyeth Five Giralda Farms Madison, New Jersey 07940 Ladies and Gentlemen: We have acted as counsel to Wyeth, a Delaware corporation (the "Company"), in connection with the Registration Statement on Form S-3 (the "Registration Statement") filed by the Company with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended, relating to the registration by the Company of $1,020,000,000 aggregate principal amount of Floating Rate Convertible Senior Debentures due 2024 (the "Debentures") and the shares of common stock, par value $0.33 1/3 per share, of the Company (the "Common Stock") into which the Debentures may be converted (the "Conversion Shares") in connection with the resale by certain selling security holders of the Debentures and the Conversion Shares. The Debentures were issued under an indenture, dated as of April 10, 1992, as amended by the Supplemental Indenture, dated October 13, 1992 (the "Original Indenture"), between the Company and JPMorgan Chase Bank (as successor to The Chase Manhattan Bank), as trustee (the "Trustee"), and the Fourth Supplemental Indenture, dated as of December 16, 2003 between the Company and the Trustee (the "Supplemental Indenture" and, together with the Original Indenture, the "Indenture") relating to the Debentures. We have examined the Registration Statement, a form of the certificate representing the shares of Common Stock, the Debentures and the Indenture, which has been filed with the Commission as an exhibit to the Registration Statement. We also have examined the originals, or duplicates or certified or conformed copies, of such corporate records, agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company. In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents. We have also assumed that: (1) the Indenture is the valid and legally binding obligation of the Trustee and (2) the Debentures have been duly authenticated by the Trustee. Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that: 1. The Debentures have been duly authorized, executed and delivered by the Company and constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms. 2. The Conversion Shares into which the Debentures are initially convertible have been duly authorized and, when issued in accordance with the terms of the Indenture, will be validly issued, fully paid and non-assessable. Our opinion set forth above in paragraph 1 is subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing. We are members of the Bar of the State of New York, and we do not express any opinion herein concerning any law other than the law of the State of New York, the federal law of the United States and the Delaware General Corporation Law (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing). We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption "Legal Matters" in the Prospectus included in the Registration Statement. Very truly yours, /s/ SIMPSON THACHER & BARTLETT LLP EX-23.1 6 y93495exv23w1.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated January 27, 2003, except for Note 16 which is as of March 3, 2003, relating to the financial statements, which appears in the 2002 Annual Report to Stockholders, which is incorporated by reference in Wyeth's Annual Report on Form 10-K for the year ended December 31, 2002. We also consent to the incorporation by reference of our report dated January 27, 2003 relating to the financial statement schedule, which appears in such Annual Report on Form 10-K. We also consent to the reference to us under the heading "Experts" in such Registration Statement. PricewaterhouseCoopers LLP Florham Park, NJ February 3, 2004 EX-24.1 7 y93495exv24w1.txt POWER OF ATTORNEY Exhibit 24.1 WYETH POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being an officer or director, or both, of WYETH (the "Company"), in his capacity as set forth below, hereby constitutes and appoints Kenneth J. Martin and Jack O'Connor and each of them as his or her true and lawful attorney and agent, with full power of substitution, to do any and all acts and all things and to execute any and all instruments which said attorney and agent may deem necessary or desirable to enable the Company to comply with the Securities Act of 1933, as amended (the "Act"), and any rules, regulations and requirements of the Securities and Exchange Commission thereunder, in connection with the registration under the Act of the issuance of $1,020,000,000 Floating Rate Convertible Senior Debentures due 2024 of the Company (the "Debentures"), including, without limitation, the power and authority to sign the name of each of the undersigned in the capacities indicated below to the Registration Statement on Form S-3, to be filed with the Securities and Exchange Commission with respect to such Debentures (or to a related Registration Statement on Form S-3 filed pursuant to Rule 462(b) of the Act), to any and all amendments or supplements to such Registration Statements, whether such amendments or supplements are filed before or after the effective date of such Registration Statements, and to any and all instruments or documents filed as part of or in connection with such Registration Statements or any and all amendments thereto, whether such amendments are filed before or after the effective date of such Registration Statements; and each of the undersigned hereby ratifies and confirms all that such attorney and agent shall do or cause to be done by virtue hereof. 2 IN WITNESS HEREOF, each of the undersigned has subscribed his or her name as of the 27th day of January, 2004. /s/ Kenneth J. Martin ----------------------------------------- Kenneth J. Martin /s/ Paul J. Jones ----------------------------------------- Paul J. Jones /s/ Clifford L. Alexander, Jr. ----------------------------------------- Clifford L. Alexander, Jr. /s/ Frank A. Bennack, Jr. ----------------------------------------- Frank A. Bennack, Jr. /s/ Richard L. Carrion ----------------------------------------- Richard L. Carrion /s/ Robert Essner ----------------------------------------- Robert Essner /s/ John D. Feerick ----------------------------------------- John D. Feerick /s/ John P. Mascotte ----------------------------------------- John P. Mascotte /s/ Mary Lake Polan ----------------------------------------- Mary Lake Polan /s/ Robert Langer ----------------------------------------- Robert Langer ----------------------------------------- Ivan G. Seidenberg /s/ Walter V. Shipley ----------------------------------------- Walter V. Shipley /s/ John R. Torell III ----------------------------------------- John R. Torell III EX-25 8 y93495exv25.txt FORM T-1 STATEMENT OF ELIGIBILITY OF TRUSTEE EXHIBIT 25.1 - -------------------------------------------------------------------------------- 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) ________ ---------------------------------------- JPMORGAN CHASE BANK (Exact name of trustee as specified in its charter) NEW YORK 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 PARK AVENUE NEW YORK, NEW YORK 10017 (Address of principal executive offices) (Zip Code) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) -------------------------------------------- WYETH (Exact name of obligor as specified in its charter) DELAWARE 13-2526821 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification No.) FIVE GIRALDA FARMS MADISON, NEW JERSEY 07940 (Address of principal executive offices) (Zip Code) -------------------------------------------- FLOATING RATE CONVERTIBLE SENIOR DEBENTURES (Title of the indenture securities) - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. -1- Item 16. List of Exhibits List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Restated Organization Certificate of the Trustee and the Certificate of Amendment dated November 9, 2001 (see Exhibit 1 to Form T-1 filed in connection with Registration Statement No. 333-73746 which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference). On November 11, 2001, in connection with the merger of The Chase Manhattan Bank and Morgan Guaranty Trust Company of New York, the surviving corporation was renamed JPMorgan Chase Bank. 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-73746, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference). On November 11, 2001, in connection with the merger of The Chase Manhattan Bank and Morgan Guaranty Trust Company of New York, the surviving corporation, was renamed JPMorgan Chase Bank. 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, JPMorgan Chase Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 7th day of January 2004. JPMORGAN CHASE BANK By /s/ Rosa Ciaccia ------------------ Rosa Ciaccia Trust Officer -2- Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF JPMorgan Chase Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business September 30, 2003, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS IN MILLIONS ASSETS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin ........................................... $ 17,578 Interest-bearing balances ................................... 9,823 Securities: Held to maturity securities ...................................... 210 Available for sale securities .................................... 57,792 Federal funds sold and securities purchased under agreements to resell ........................................ Federal funds sold in domestic offices ...................... 9,491 Securities purchased under agreements to resell ............. 91,241 Loans and lease financing receivables: Loans and leases held for sale .............................. 35,681 Loans and leases, net of unearned income .................... $170,168 Less: Allowance for loan and lease losses ................... 3,448 Loans and leases, net of unearned income and allowance ................................................... 166,720 Trading Assets ................................................... 178,938 Premises and fixed assets (including capitalized leases) ......... 6,057 Other real estate owned .......................................... 110 Investments in unconsolidated subsidiaries and associated companies ........................................ 732 Customers' liability to this bank on acceptances outstanding ................................................. 260 Intangible assets Goodwill ................................................. 2,198 Other Intangible assets .................................. 4,096 Other assets ..................................................... 57,193 TOTAL ASSETS ..................................................... $638,120 ========
LIABILITIES Deposits In domestic offices .................................................... $188,866 Noninterest-bearing .................................................... $ 76,927 Interest-bearing ....................................................... 111,939 In foreign offices, Edge and Agreement subsidiaries and IBF's ................................................. 124,493 Noninterest-bearing ..................................................... $ 6,439 Interest-bearing ....................................................... 118,054 Federal funds purchased and securities sold under agreements to repurchase: Federal funds purchased in domestic offices ............................ 4,679 Securities sold under agreements to repurchase ......................... 82,206 Trading liabilities ......................................................... 136,012 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases) .............................. 24,937 Bank's liability on acceptances executed and outstanding .................... 260 Subordinated notes and debentures ........................................... 8,040 Other liabilities ........................................................... 31,270 TOTAL LIABILITIES ........................................................... 600,763 Minority Interest in consolidated subsidiaries .............................. 358 EQUITY CAPITAL Perpetual preferred stock and related surplus ............................... 0 Common stock ................................................................ 1,785 Surplus (exclude all surplus related to preferred stock) ................... 16,306 Retained earnings ........................................................... 18,875 Accumulated other comprehensive income ...................................... 33 Other equity capital components ............................................. 0 TOTAL EQUITY CAPITAL ........................................................ 36,999 -------- TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL .................... $638,120 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. JOSEPH L. SCLAFANI We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the in- structions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. ) LAWRENCE A. BOSSIDY ) DIRECTORS ELLEN V. FUTTER ) -----END PRIVACY-ENHANCED MESSAGE-----