EXECUTION VERSION
SCHERING-PLOUGH CORPORATION
THE BANK OF NEW YORK
Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of November 26, 2003
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$1,150,000,000
6.50% Senior Notes due 2033
SCHERING-PLOUGH CORPORATION
SECOND SUPPLEMENTAL INDENTURE
$1,150,000,000
6.50% Senior Notes due 2033
SECOND SUPPLEMENTAL INDENTURE, dated as of November 26, 2003, between
SCHERING-PLOUGH CORPORATION, a Delaware corporation (the "COMPANY"), and THE
BANK OF NEW YORK, as trustee (the "TRUSTEE").
RECITALS
A. The Company has contemporaneously executed and delivered to the
Trustee an Indenture, dated as of November 26, 2003 (the "BASE INDENTURE" and,
as hereby supplemented and amended, the "INDENTURE"), providing for the issuance
from time to time of one or more series of the Company's debt securities (the
"DEBT SECURITIES").
B. Pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a series of Debt Securities to be designated as
the "6.50% Senior Notes due 2033" (the "NOTES"), the form and substance of such
Notes and the terms, provisions and conditions thereof to be set forth as
provided in the Base Indenture and this Second Supplemental Indenture.
C. Sections 201 and 301 of the Base Indenture provide that various
matters with respect to any series of Debt Securities issued under the Indenture
may be established in an indenture supplemental to the Indenture.
D. Subparagraph (7) of Section 901 of the Base Indenture provides that
the Company and the Trustee may enter into an indenture supplemental to the
Indenture to establish the form or terms of Debt Securities of any series as
permitted by Sections 201 and 301 of the Base Indenture.
E. For and in consideration of the premises and the issuance of the
series of Debt Securities provided for herein, it is mutually covenanted and
agreed, for the equal and proportionate benefit of the Holders of the Debt
Securities of such series, as follows:
ARTICLE ONE
RELATION TO BASE INDENTURE; ADDITIONAL DEFINITIONS
Section 101. Relation to Base Indenture. This Second Supplemental
Indenture constitutes an integral part of the Base Indenture.
Section 102. Additional Definitions. For all purposes of this Second
Supplemental Indenture:
(a) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Second
Supplemental Indenture.
(b) The terms "herein," "hereof," "hereunder" and other words of similar
import refer to this Second Supplemental Indenture.
(c) Capitalized terms used herein shall have the meaning specified
herein or in the Base Indenture, as the case may be.
"ADDITIONAL INTEREST RATE" means the applicable percentage rate
listed in the first column of the table set forth in Section 204(l) hereof
as applied to each rating agency.
"AGENT MEMBERS" has the meaning set forth in Section 208 hereof.
"BASE INDENTURE" has the meaning set forth in paragraph A of the
Recitals hereof.
"BASE INTEREST RATE" means 6.50% per annum.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or Assistant Secretary of the Company to have been duly adopted
by the Board of Directors, or officers of the Company to which authority
to act on behalf of the Board of Directors has been delegated, and to be
in full force and effect on the date of such certification, and delivered
to the Trustee.
"CERTIFICATED NOTE" has the meaning set forth in Section 208(f)
hereof.
"COMPARABLE TREASURY ISSUE" means the United States Treasury
security or securities selected by an Independent Investment Banker as
having an actual or interpolated maturity comparable to the remaining term
of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes to be redeemed.
"COMPARABLE TREASURY PRICE" means, with respect to any Redemption
Date, (1) the average of the Reference Treasury Dealer Quotations for such
Redemption Date, after
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excluding the highest and the lowest of such Reference Treasury Dealer
Quotations, or (2) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
"DEBT SECURITIES" has the meaning set forth in the paragraph A of
the Recitals hereof.
"DEPOSITARY" means the Depositary Trust Company.
"DOWNGRADE TRIGGERING EVENT" has the meaning set forth in Section
204(c).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FITCH" means Fitch, Inc. or its successor.
"GLOBAL NOTES" has the meaning set forth in Section 207 hereof.
"INDEPENDENT INVESTMENT BANKER" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"INTEREST PAYMENT DATE" has the meaning set forth in Section 204(a)
hereof.
"ISSUE DATE" means November 26, 2003.
"MATURITY DATE" has the meaning set forth in Section 203 hereof.
"MOODY'S" means Moody's Investor Service, Inc. or its successor.
"NOTES" has the meaning set forth in the paragraph B of the Recitals
hereof.
"NRSRO" means a nationally recognized statistical rating
organization as such term is used in the Exchange Act and the rules
promulgated thereunder.
"QUOTATION AGENT" means one of the Reference Treasury Dealers
appointed by the Company.
"REFERENCE TREASURY DEALER" means each of Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Citigroup Global Markets Inc., Banc of
America Securities LLC and Credit Suisse First Boston LLC or their
affiliates plus one other dealer selected by the Trustee which are primary
U.S. Government securities dealers, and their respective successors;
provided, however, that if any of the foregoing or their affiliates shall
cease to be a primary U.S. Government securities dealer in The City of New
York (a "PRIMARY TREASURY DEALER"), the Company shall substitute therefor
another Primary Treasury Dealer.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by the Reference
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Treasury Dealer at 3:30 p.m., New York City time, on the third business
day preceding the Redemption Date.
"S&P" means Standard & Poor's Rating Services, a division of McGraw
Hill, Inc. or its successor.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"TREASURY RATE" means, with respect to any Redemption Date, the rate
per year equal to the semiannual equivalent yield to maturity or
interpolated (on a day count basis) of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price
for the Redemption Date.
"UPGRADE TRIGGERING EVENT" has the meaning set forth in Section
204(d).
ARTICLE TWO
THE SERIES OF DEBT SECURITIES
Section 201. Title of the Debt Securities. The Notes shall be known and
designated as the "6.50% Senior Notes due 2033".
Section 202. Limitation on Aggregate Principal Amount. The Trustee shall
authenticate and deliver Notes for original issue on the Issue Date in the
aggregate principal amount of $1,150,000,000 upon a Company Order for the
authentication and delivery thereof and satisfaction of Section 303 of the Base
Indenture. Such order shall specify the amount of the Notes to be authenticated,
the date on which the original issue of Notes is to be authenticated and the
name or names of the initial Holder or Holders. The aggregate principal amount
of Notes that may initially be outstanding shall not exceed $1,150,000,000;
provided, however, that the authorized aggregate principal amount of the Notes
may be increased above such amount by a Board Resolution to such effect.
Section 203. Stated Maturity. The Stated Maturity of the Notes shall be
December 1, 2033 (the "MATURITY DATE").
Section 204. Interest and Interest Rates.
(a) The Notes shall bear interest at the rate of 6.50% per annum (the
"BASE INTEREST RATE"), which rate shall be subject to adjustment as provided in
this Section 204, from and including the Issue Date to, but excluding, the
Maturity Date. Such interest shall be payable semiannually in arrears on June 1
and December 1 of each year (each such date, an "INTEREST PAYMENT DATE"),
commencing June 1, 2004. Interest is payable to the Holders of record of the
Notes at the close of business on the May 15 or November 15 preceding the
applicable Interest Payment Date.
(b) Any principal and premium, if any, and any installment of interest,
which is overdue shall bear interest at the rate per annum at which interest is
then accruing on the principal amount of the Notes (subject at all times to any
adjustments required to be made
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pursuant to Section 204(l) hereof) (to the extent permitted by law), from the
dates such amounts are due until they are paid or made available for payment,
and such interest shall be payable on demand.
(c) A "DOWNGRADE TRIGGERING EVENT" shall occur if at any time prior to
the Maturity Date, either:
(i) the credit rating assigned to the Notes by S&P is below A - ;
or
(ii) the credit rating assigned to the Notes by Moody's is below
A3; or
(iii) only if Fitch is substituted in accordance with Section
204(i), the credit rating assigned to the Notes by Fitch is below A-.
(d) An "UPGRADE TRIGGERING EVENT" shall occur if at any time following
any Downgrade Triggering Event:
(i) the credit rating assigned to the Notes by S&P is above BBB+;
and
(ii) the credit rating assigned to the Notes by Moody's is above
Baa1; and
(iii) only if Fitch is substituted in accordance with Section
204(i), the credit rating assigned to the Notes by Fitch is above BBB+.
(e) If a Downgrade Triggering Event occurs then the interest rate per
year payable on the Notes shall be adjusted as set forth in Section 204(l)
hereof.
(f) If an Upgrade Triggering Event occurs then the interest rate per
year payable on the Notes shall be the Base Interest Rate and the provisions of
paragraph (c) and paragraphs (g) through (n) (inclusive) of this Section 204
shall permanently cease to apply.
(g) Any increase or decrease in the interest rate payable on the Notes
set forth in Section 204(l) hereof shall take effect from the period after the
first Interest Payment Date immediately following the date on which the credit
rating assigned to the Notes was changed so as to cause the adjustment to the
interest rate payable on the Notes pursuant to this Section 204.
(h) Subject to Section 204(f) hereof, there is no limit on the number of
times that the interest rate payable on the Notes may be increased or decreased
between the occurrence of a Downgrade Triggering Event and the occurrence of an
Upgrade Triggering Event, provided, however, that in no event shall the interest
rate per year payable on the Notes be more than the Base Interest Rate plus 2%.
(i) If either or both of S&P and Moody's shall have discontinued,
withdrawn or suspended its credit rating of the Notes, then the credit rating
assigned to the Notes by Fitch shall be substituted for the credit rating
assigned to the Notes by S&P or Moody's or both, as applicable.
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(j) In the event that only one of S&P, Moody's or Fitch assigns a credit
rating to the Notes, then for purposes of making the adjustments set forth in
Section 204, the credit rating assigned to the Notes by the only remaining
credit rating agency shall be deemed to be the credit rating assigned by the
second credit rating agency and, if necessary, two interest rate adjustments
shall be made.
(k) In the event that all of S&P, Moody's and Fitch shall have
discontinued, withdrawn or suspended their credit ratings of the Notes, then the
Trustee shall select a NRSRO to act as a substitute credit rating agency, and
the credit rating assigned to the Notes by that NRSRO shall be substituted for
the credit rating assigned to the Notes by each of S&P and Moody's and, if
necessary, two interest rate adjustments shall be made.
(l) If the credit rating assigned to the Notes by S&P, Moody's or Fitch,
as applicable, changes to a credit rating set out below then the interest
payable on the Notes shall be the Base Interest Rate plus the applicable
Additional Interest Rate set forth below for the then-current rating assigned by
each of Moody's and S&P (or Fitch, if applicable):
ADDITIONAL INTEREST RATE MOODY'S CREDIT RATING S&P CREDIT RATING FITCH CREDIT RATING
- ------------------------ --------------------- ----------------- -------------------
0.25% Baa1 BBB+ BBB+
0.50% Baa2 BBB BBB
0.75% Baa3 BBB- BBB-
1.00% Ba1 or below BB+ or below BB+ or below
(m) Each increase or decrease to the interest rate payable on the Notes
set forth in Section 204(l) required by any change in credit ratings, whether
occasioned by the action of S&P, Moody's or Fitch, as applicable, shall be made
independent of any and all other adjustments occasioned by any ratings change of
the other ratings agency. If S&P or Moody's (or Fitch, if applicable)
subsequently upgrades the credit rating it assigns to the Notes to any of the
thresholds set forth above, the interest rate on the Notes will be
correspondingly readjusted downwards.
Section 205. Place of Payment. The Trustee shall initially serve as the
Security Registrar, transfer agent and paying agent for the Notes. The Place of
Payment where the Notes may be presented or surrendered for payment shall
initially be the Corporate Trust Office of the Trustee.
Section 206. Place of Registration or Exchange; Notices and Demands With
Respect to the Notes. The place where the Holders of the Notes may present the
Notes for registration of transfer or exchange and may make notices and demands
to or upon the Company in respect of the Notes shall be the Corporate Trust
Office of the Trustee.
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Section 207. Form of Debt Securities. The Notes and the Trustee's
certificate of authentication shall be substantially in the form provided for in
the Base Indenture with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted herein. The Notes may have
notations, legends or endorsements required by law, stock exchange agreements to
which the Company is subject or usage. The terms and provisions contained in the
form of the Notes annexed hereto as Exhibit A shall constitute, and are hereby
expressly made, a part of this Second Supplemental Indenture. To the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Second Supplemental Indenture, expressly agree to such terms and provisions and
to be bound thereby. Each note shall be dated the date of its authentication.
The Notes shall be issued in the form of a permanent global note in the form set
forth in Exhibit A (the "GLOBAL NOTES").
Section 208. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the name of
the Depositary for such Global Notes or the nominee of such Depositary and (ii)
be delivered to the Trustee as custodian for such Depositary.
(b) Except as provided for in Section 208(f) hereof, members of, or
direct or indirect participants in, the Depositary ("AGENT MEMBERS") shall have
no rights under this Indenture with respect to any Global Note held on their
behalf by the Depositary, or the Trustee as its custodian, or under such Global
Note, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a holder of any Note.
(c) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in Global Notes may be
transferred in accordance with the rules and procedures of the Depositary.
(d) The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(e) Notwithstanding anything herein to the contrary, none of the
Company, the Security Registrar, or the Trustee shall recognize as an owner of
the Notes, or make any payments on the Notes to, any person other than those
persons in whose names the Notes are registered or whose names appear in the
book entry system described in this Section 208 or which otherwise meets the
requirements of the U.S. Treasury Regulation Section 5f.103-1(c) or any
successor provisions thereof.
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(f) Except as provided herein, owners of beneficial interests in Global
Notes will not be entitled to receive Notes in certificated form ("CERTIFICATED
NOTES"). Certificated Notes shall be issued to all owners of beneficial
interests in a Global Note in exchange for such interests if:
(i) the Depositary notifies the Company that it is unwilling,
unable or ineligible to continue as depositary for such Global Note and in
each case a successor depositary is not appointed by the Company within 90
days of such notice;
(ii) the Company executes and delivers to the Trustee and Security
Registrar an Officers' Certificate stating that such Global Note shall be
so exchangeable; or
(iii) an Event of Default has occurred and is continuing and the
Security Registrar has received a request from the Depositary.
In connection with the exchange of an entire Global Note for Certificated Notes
pursuant to this Section 208(f), such Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
upon Company Order the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in such Global Note, an equal aggregate principal amount of
Certificated Notes of authorized denominations. In the event that the
Certificated Notes are not issued to each such beneficial owner promptly after
the Security Registrar has received a request from the Depositary to issue such
Certificated Notes, the Company expressly acknowledges, with respect to the
right of any Holder to pursue a remedy pursuant to Section 507 of the Base
Indenture, the right of any beneficial holder of Notes to pursue such remedy
with respect to the portion of the Global Note that represents such beneficial
holder's Notes as if such Certificated Notes had been issued.
Section 209. Sinking Fund Obligations; No Redemption at Option of the
Holders. The Company shall have no obligation to redeem or purchase any Notes
pursuant to any sinking fund or analogous requirement or upon the happening of a
specified event or at the option of a Holder thereof.
Section 210. Defeasance and Covenant Defeasance. The provisions of Article
Fourteen of the Base Indenture shall apply to the Notes.
ARTICLE THREE
OPTIONAL REDEMPTION OF THE NOTES
Section 301. Redemption Price.The Notes will be redeemable at any time, at
the option of the Company, in whole or from time to time in part, on at least 30
days' but no more than 60 days' prior written notice mailed to the Holders of
the Notes to be redeemed. In addition, notice of any such optional redemption
will be published as described in the Base Indenture. The redemption price of
the Notes to be redeemed will be equal to the greater of (1) 100% of the
principal amount of the Notes to be redeemed and (2) the sum, as determined by
the Quotation Agent, of the present values of the remaining scheduled payments
of principal and interest on the Notes to be redeemed (exclusive of interest
accrued to the Redemption Date) discounted from their respective scheduled
payment dates to the Redemption Date on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 35 basis
points, plus, in each case, accrued and unpaid interest on the principal amount
being redeemed to
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the Redemption Date. For the avoidance of doubt, any calculation of the
remaining scheduled payments of interest pursuant to clause (2) of the preceding
sentence shall not include accrued and unpaid interest for the period up to and
including the Redemption Date. The Trustee shall be entitled to rely on the
Quotation Agent's determination of the redemption price of the Notes. The
redemption price of the Notes to be redeemed shall be payable in Dollars.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Section 401. This Second Supplemental Indenture is executed and shall be
construed as an indenture supplemental to the Base Indenture and, as provided in
the Base Indenture, this Second Supplemental Indenture forms a part of the Base
Indenture. Except to the extent amended by or supplemented by this Second
Supplemental Indenture, the Company and the Trustee hereby ratify, confirm and
reaffirm the Base Indenture in all respects.
Section 402. This Second Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute one and the same instrument.
Section 403. THIS SECOND SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS).
Section 404. This Second Supplemental Indenture is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
If any provision in this Second Supplemental Indenture limits, qualifies or
conflicts with another provision hereof which is required to be included herein
by any provisions of the Trust Indenture Act, such required provision shall
control.
Section 405. In case any provision in this Second Supplemental Indenture
or the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 406. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture. The recitals and statements
herein are deemed to be those of the Company and not those of the Trustee.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, as of the day and year first written
above.
SCHERING-PLOUGH CORPORATION
By: /s/ E. Kevin Moore
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Name: E. Kevin Moore
Title: Vice President and
Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Marie E. Trimboli
--------------------------------
Name: Marie E. Trimboli
Title: Assistant Vice President
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EXHIBIT A
CUSIP NO.
ISIN NO.
NO. 1
SCHERING-PLOUGH CORPORATION
6.50% GLOBAL SENIOR NOTE DUE 2033
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, 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.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.
SCHERING-PLOUGH CORPORATION, a New Jersey corporation (herein
referred to as the "COMPANY," which term includes any successor corporation
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal sum of
$____________ on December 1, 2033 (the "MATURITY DATE") and to pay interest
thereon from November 26, 2003 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on June 1 and
December 1 in each year (each, an "INTEREST PAYMENT DATE"), commencing June 1,
2004, at
6.50% per annum until the principal hereof is paid or duly provided for, and
which such interest rate shall be subject to adjustment as described below.
Any payment of principal or interest required to be made on a day
that is not a Business Day need not be made on such day, but may be made on the
next succeeding Business Day with the same force and effect as if made on such
day and no interest shall accrue as a result of such delayed payment. Interest
payable on each Interest Payment Date will include interest accrued from and
including November 26, 2003 or from and including the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, to but excluding such Interest Payment Date.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in the Indenture, be paid to the
person (the "HOLDER") in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the May 15 or November 15,
as applicable (whether or not a Business Day) preceding such Interest Payment
Date (a "REGULAR RECORD DATE"). Any such interest not so punctually paid or duly
provided for ("DEFAULTED INTEREST") will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the person in whose
name this Note (or one or more Predecessor Securities) is registered at the
close of business on a special record date (the "SPECIAL RECORD DATE") to be
fixed by the Trustee (referred to herein) for the payment of such Defaulted
Interest, notice whereof shall be given to the Holder of this Note not more than
15 nor less than ten days prior to such Special Record Date, or may be paid at
any time in any other lawful manner, all as more fully provided in the
Indenture.
For purposes of this Note, "BUSINESS DAY" means any day that is not
a Saturday or Sunday and that, in The City of New York, is not a day on which
banking institutions are authorized or obligated by law or executive order to
close.
Payment of the principal of this Note on the Maturity Date will be
made against presentation of this Note at the Corporate Trust Office of the
Trustee maintained for that purpose in the Borough of Manhattan, the City of New
York, in such coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts. So long as
this Note remains in book-entry form, all payments of principal and interest
will be made by the Company in immediately available funds.
GENERAL. This Note is one of a duly authorized issue of securities
(herein called the "SECURITIES") of the Company, issued and to be issued under
an indenture dated as of November 26, 2003 (the "BASE Indenture"), as
supplemented by the First Supplemental Indenture dated as of November 26, 2003,
the Second Supplemental Indenture dated as of November 26, 2003 (the "SECOND
SUPPLEMENTAL INDENTURE"), and as it may be further supplemented from time to
time (herein collectively called the "INDENTURE"), between the Company and The
Bank of New York, as Trustee (herein called the "TRUSTEE," which term includes
any successor trustee under the indenture with respect to a series of which this
Note is a part), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), may be
subject to different sinking, purchase or analogous funds (if any), may be
subject to different covenants and Events of Default and may otherwise vary as
provided or permitted in the Indenture. This Note is one of a duly authorized
series of Securities designated as "6.50% Senior Notes due 2033" (collectively,
the "NOTES").
The Notes are initially limited to $1,150,000,000 aggregate
principal amount. The Company may, without the consent of the Holder hereof,
create and issue additional securities ranking pari passu with the Notes in all
respects and so that such additional securities shall be consolidated and form a
single series having the same terms as to status, redemption or otherwise as the
Notes initially issued. No additional Notes may be issued if an Event of Default
has occurred.
INTEREST RATE ADJUSTMENTS. The interest rate on the Notes is subject
to adjustment in accordance with the terms of, and in the circumstances provided
for in, the Second Supplemental Indenture.
EVENTS OF DEFAULT. If an Event of Default with respect to the Notes
shall have occurred and be continuing, the principal of the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
MATURITY AND OPTIONAL REDEMPTION. The Notes may be redeemed prior to
the Maturity Date as provided for in Section 301 of the Second Supplemental
Indenture. The Notes are not subject to repayment at the option of the Holders
or to the operation of any sinking fund.
MODIFICATION AND WAIVERS; OBLIGATIONS OF THE COMPANY ABSOLUTE. The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series. Such amendment may
be effected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in aggregate principal
amount of all Securities issued under the Indenture at the time Outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of not less than a majority in aggregate principal amount of the Securities at
the time Outstanding, on behalf of the Holders of all Outstanding Securities, to
waive compliance by the Company with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of
individual series to waive on behalf of all of the Holders of Securities of such
individual series certain past defaults under the Indenture and their
consequences. Any such consent or waiver shall be conclusive and binding upon
the Holder of this Note and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and
unconditional, to pay the principal of and interest on this Note at the times,
place and rate and in the coin or currency herein prescribed.
DEFEASANCE AND COVENANT DEFEASANCE. The Indenture contains
provisions for defeasance at any time of (a) the entire indebtedness of the
Company on this Note and (b) certain restrictive covenants and the related
defaults and Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Note.
REGISTRATION OF TRANSFER OR EXCHANGE. As provided in the Indenture
and subject to certain limitations herein and therein set forth, the transfer of
this Note is registrable in the Security Register upon surrender of this Note
for registration of transfer at the Corporate Trust Office of the Trustee in any
place where the principal of and interest on this Note are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
herein and therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes of different authorized denominations, as requested by
the Holders surrendering the same.
This Note is a Global Security. If the Depository is at any time
unwilling, unable or ineligible to continue as depository and a successor
depository is not appointed by the Company within 90 days or an Event of Default
under the Indenture has occurred and is continuing, the Company will issue Notes
in certificated form in exchange for each Global Security. In addition, the
Company may at any time determine not to have Notes represented by a Global
Security and, in such event, will issue Notes in certificated form in exchange
in whole for the Global Security representing such Note. In any such instance,
an owner of a beneficial interest in a Global Security will be entitled to
physical delivery in certificated form of Notes equal in principal amount to
such beneficial interest and to have such Notes registered in its name. Notes so
issued in certificated form will be issued in denominations of $1,000 or any
amount in excess thereof which is an integral multiple of $1,000 and will be
issued in registered form only, without coupons.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Holder as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
DEFINED TERMS. All terms used in this Note which are defined in the
Indenture and are not otherwise defined herein shall have the meanings assigned
to them in the Indenture.
GOVERNING LAW. This Note shall be governed by and construed in
accordance with the law of the State of New York.
NOTICES. Notices to Holders of the Notes may be made by first class
mail, postage prepaid, to the addresses that appear on the register maintained
by the Security Registrar or by guaranteed overnight courier or by facsimile
transmission (receipt confirmed by facsimile transaction receipt) followed by
overnight courier. Any notice will be deemed to have been given on the date of
publication or, if published more than once, on the date of the first
publication.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its facsimile corporate seal.
Dated: November 26, 2003
SCHERING-PLOUGH CORPORATION
By:
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Name:
Title:
Attest:
----------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture
THE BANK OF NEW YORK,
as Trustee
By:
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Authorized Signatory