Exhibit 4.4
Dated 30th March, 2001
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
as Issuers
- and -
CIBA SPECIALTY CHEMICALS HOLDING INC.
as Guarantor
- and -
THE CHASE MANHATTAN BANK
as Agent
- and -
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
________________________________________
AGENCY AGREEMENT
in respect of a
U.S.$2,000,000,000
EURO MEDIUM TERM NOTE PROGRAM
(Amended and Restated)
________________________________________
▇▇▇▇▇ & ▇▇▇▇▇
London
CONTENTS
Clause Page
1. Definitions and interpretation...........................................2
2. Appointment of Agent and Paying Agents...................................7
3. Issue of Temporary Global Notes..........................................9
4. Determination of Exchange Date, issue of Permanent Global Notes and
Definitive Notes and determination of end of Distribution Compliance
Period..................................................................10
5. Issue of Definitive Notes...............................................11
6. Terms of Issue..........................................................11
7. Payments................................................................12
8. Determinations and notifications in respect of Notes and
Interest Determination..................................................14
9. Notice of any withholding or deduction..................................16
10. Duties of the Agent in connection with early redemption.................16
11. Receipt and Publication of Notices......................................17
12. Cancellation of Notes, Receipts, Coupons and Talons.....................18
13. Issue of replacement Notes, Receipts, Coupons and Talons................19
14. Copies of documents available for inspection............................20
15. Meetings of Noteholders.................................................20
16. Commissions and expenses................................................21
17. Indemnity...............................................................21
18. Repayment by the Agent..................................................21
19. Conditions of appointment...............................................22
20. Communication between the parties.......................................23
21. Changes in Agent and other Paying Agents................................23
22. Merger and consolidation................................................24
23. Notification of changes to Paying Agents................................25
24. Change of specified office..............................................25
25. Notices.................................................................25
26. Taxes and stamp duties..................................................26
27. Currency indemnity......................................................26
28. Amendments..............................................................26
29. Descriptive headings....................................................27
30. Contracts (Rights of Third Parties) Act 1999............................27
31. Governing law and submission to jurisdiction............................27
32. Counterparts............................................................27
Schedules
Appendix A...................................................................29
Form of Calculation Agency Agreement.........................................29
1. Terms and Conditions of the Notes...................................38
2. Forms of Global and Definitive Notes, Receipts, Coupons and Talons 61
3. Form of Deed of Guarantee...........................................97
4. Provisions for Meetings of Noteholders..............................101
5. Form of Put Notice..................................................108
6. Operating & Administrative Procedures Memorandum....................110
Signatories..................................................................135
AGENCY AGREEMENT
in respect of a
EURO MEDIUM TERM NOTE PROGRAM
THIS AGREEMENT is made on 30th March, 2001 BETWEEN:
(1) CIBA SPECIALTY CHEMICALS CORPORATION of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("CIBA US");
(2) CIBA SPECIALTY CHEMICALS PLC of ▇▇▇▇▇▇ Road, Macclesfield, Cheshire SK10
2NX, England ("CIBA UK");
(3) CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH of Chemiestrasse,
D-68623 Lampertheim, Germany ("CIBA Germany");
(4) CIBA SPECIALTY CHEMICALS HOLDING INC. of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the "Guarantor");
(5) THE CHASE MANHATTAN BANK of Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇ Street, London
E1W 1YT (the "Agent", which expression shall include any successor agent
appointed in accordance with clause 21); and
(6) CHASE MANHATTAN BANK LUXEMBOURG S.A. of ▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(▇▇▇▇▇▇▇▇ with the Agent, the "Paying Agents", which expression shall
include any additional or successor paying agent appointed in accordance
with clause 21 and "Paying Agent" shall mean any of the Paying Agents).
WHEREAS:
(A) CIBA US, CIBA UK, CIBA Germany (each an "ISSUER" and together, the
"ISSUERS") and the Guarantor have entered into an amended and restated
program agreement dated 30th March, 2001 (the "PROGRAM AGREEMENT") with
the Dealers named therein pursuant to which the Issuer may issue Euro
Medium Term Notes (the "NOTES") in an aggregate nominal amount
outstanding at any time of up to U.S.$2,000,000,000 (or its equivalent in
other currencies). The Program Agreement amends and restates the amended
and restated program agreement entered into by CIBA US, CIBA UK, CIBA
Germany and the Guarantor dated 16th June, 2000 with the Dealers named
therein.
(B) CIBA US, CIBA UK, CIBA Germany, the Guarantor, the Agent and the Paying
Agents (the "PRINCIPAL PARTIES") entered into an amended and restated
Agency Agreement (the "PRINCIPAL AGENCY AGREEMENT") dated 16th June, 2000
in respect of U.S.$2,000,000,000 Euro Medium Term Note Program.
(C) This Agreement amends and restates the Principal Agency Agreement. Any
Notes issued on or after the date hereof (other than any such Notes
issued so as to be consolidated and form a single Series with any Notes
issued prior to the date hereof) shall be issued pursuant to this
Agreement. This does not affect any Notes issued prior to the date
hereof.
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(D) Each issue of Notes will be initially represented by a temporary global
Note exchangeable in whole or in part for definitive Notes or for a
permanent global Note which will be exchangeable as described therein for
definitive Notes.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
(1) Terms and expressions defined in the Program Agreement or the Notes or
used in the applicable Pricing Supplement shall have the same meanings in
this Agreement, except where the context requires otherwise or unless
otherwise stated.
(2) Without prejudice to the foregoing:
"CLEARSTREAM, LUXEMBOURG" means Clearstream Banking, societe anonyme;
"CONDITIONS" means, in relation to the Notes of any Series, the terms and
conditions endorsed on or incorporated by reference into or attached to
the Note or Notes constituting such Series, such terms and conditions
being in or substantially in the form set out in Schedule 1 or in such
other form, having regard to the terms of the Notes of the relevant
Series, as may be agreed between the relevant Issuer, the Guarantor, the
Agent and the relevant Dealer as modified and supplemented by the Pricing
Supplement applicable to the Notes of the relevant Series;
"COUPON" means an interest coupon appertaining to a Definitive Note
(other than a Zero Coupon Note), such coupon being:
(i) if appertaining to a Fixed Rate Note, in the form or substantially
in the form set out in Part IV A of Schedule 2 or in such other
form, having regard to the terms of issue of the Notes of the
relevant Series, as may be agreed between the relevant Issuer, the
Guarantor, the Agent and the relevant Dealer; or
(ii) if appertaining to a Floating Rate Note or an Indexed Interest Note,
in the form or substantially in the form set out in Part IV B of
Schedule 2 or in such other form, having regard to the terms of
issue of the Notes of the relevant Series, as may be agreed between
the relevant Issuer, the Guarantor, the Agent and the relevant
Dealer; or
(iii) if appertaining to a Definitive Note which is neither a Fixed Rate
Note nor a Floating Rate Note nor an Indexed Interest Note, in such
form as may be agreed between the relevant Issuer, the Guarantor,
the Agent and the relevant Dealer,
and includes, where applicable, the Talon(s) appertaining thereto and any
replacements for Coupons and Talons issued pursuant to Condition 10;
"COUPONHOLDERS" means the several persons who are for the time being
holders of the Coupons and shall, unless the context otherwise requires,
include the holders of the Talons;
"DEFINITIVE NOTE" means a definitive Note issued or, as the case may
require, to be issued by the relevant Issuer in accordance with the
provisions of the Program Agreement or any other agreement between the
relevant Issuer, the Guarantor and the relevant Dealer in exchange for
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either a Temporary Global Note or a Permanent Global Note (all as
indicated in the applicable Pricing Supplement), such definitive Note
being in the form or substantially in the form set out in Part III of
Schedule 2 with such modifications (if any) as may be agreed between the
relevant Issuer, the Guarantor, the Agent and the relevant Dealer and
having the Conditions endorsed thereon or attached thereto or, if
permitted by the relevant authority or authorities and agreed by the
relevant Issuer, the Guarantor and the relevant Dealer, incorporating the
Conditions by reference and having the applicable Pricing Supplement (or
the relevant provisions thereof) either endorsed thereon or attached
thereto and (except in the case of a Zero Coupon Note) having Coupons
and, where appropriate, Receipts and/or Talons attached thereto on issue;
"DISTRIBUTION COMPLIANCE PERIOD" has the meaning given to such term in
Regulation S under the Securities Act;
"DUAL CURRENCY NOTE" means a Note in respect of which payments of
principal and/or interest are made or to be made in such different
currencies, and at rates of exchange calculated upon such basis or bases,
as the relevant Issuer, the Guarantor and the relevant Dealer may agree
(as indicated in the applicable Pricing Supplement);
"EURIBOR" means the Euro-zone inter-bank offered rate;
"EUROCLEAR" means Euroclear Bank S.A./N.V. as operator of the Euroclear
System, or any successor to the business thereof;
"EURO-ZONE" means the region composed of Member States of the European
Union that are participating in the third stage of European economic and
monetary union;
"FIXED RATE NOTE" means a Note on which interest is calculated at a fixed
rate payable in arrear on a fixed date or dates in each year and on the
redemption date or on such other dates as may be agreed between the
relevant Issuer, the Guarantor and the relevant Dealer (as indicated in
the applicable Pricing Supplement);
"FLOATING RATE NOTE" means a Note on which interest is calculated at a
floating rate payable in respect of such period or on such date(s) as may
be agreed between the relevant Issuer, the Guarantor and the relevant
Dealer (as indicated in the applicable Pricing Supplement);
"GLOBAL NOTE" means a Temporary Global Note and/or a Permanent Global
Note, as applicable;
"GUARANTEE" means the guarantee dated the date of this Agreement,
substantially in the form set out in Schedule 3, executed as a deed poll
by the Guarantor in respect of any Note and in respect of the obligations
of the Issuers under the Deed of Covenant;
"INDEXED INTEREST NOTE" means a Note in respect of which the amount
payable in respect of interest is calculated by reference to an index
and/or a formula as the relevant Issuer, the Guarantor and the relevant
Dealer may agree (as indicated in the applicable Pricing Supplement);
"INDEXED NOTE" means an Indexed Interest Note and/or an Indexed
Redemption Amount Note, as applicable;
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"INDEXED REDEMPTION AMOUNT NOTE" means a Note in respect of which the
amount payable in respect of principal is calculated by reference to an
index and/or a formula as the relevant Issuer, the Guarantor and the
relevant Dealer may agree (as indicated in the applicable Pricing
Supplement);
"INTEREST COMMENCEMENT DATE" means, in the case of interest-bearing
Notes, the date specified in the applicable Pricing Supplement from (and
including) which such Notes bear interest, which may or may not be the
Issue Date (but if no date is specified shall be the Issue Date);
"ISDA DEFINITIONS" mean the 2000 ISDA Definitions, each as amended and
updated as at the Issue Date of the first Tranche of Notes of the
relevant Series and published by the International Swaps and Derivatives
Association, Inc.;
"ISSUE DATE" means the date of issue and purchase of a Note, in each case
pursuant to and in accordance with the Program Agreement or any other
agreement between the relevant Issuer, the Guarantor and the relevant
Dealer, being in the case of any Permanent Global Note or Definitive
Note, the same date as the date of issue of the Temporary Global Note
which initially represented such Note;
"ISSUE PRICE" means the price, generally expressed as a percentage of the
nominal amount of the Notes, at which the Notes will be issued;
"LIBOR" means the London inter-bank offered rate;
"MATURITY DATE" means, in relation to a Note, the date on which it is
expressed to be redeemable;
"NOTE" means a note denominated in Australian dollars, Austrian
Schillings, Canadian dollars, Czech koruna, Danish kroner, Deutsche
Marks, Dutch guilders, euro, Finnish markkas, Hong Kong dollars, Irish
pounds, Italian lire, Japanese Yen, Luxembourg francs, New Zealand
dollars, Norwegian kroner, Portuguese escudos, South African Rand,
Sterling, Swedish kronor, Swiss francs, U.S. dollars or such other
currency or currencies as may be agreed between the relevant Issuer, the
Guarantor and the relevant Dealer issued or to be issued by the relevant
Issuer pursuant to the Program Agreement or any other agreement between
the relevant Issuer, the Guarantor and the relevant Dealer and which
shall initially be represented by, and comprised in, a Temporary Global
Note which may (in accordance with the terms of such Temporary Global
Note) be exchanged for either Definitive Notes or a Permanent Global Note
which Permanent Global Note may (in accordance with the terms of such
Permanent Global Note) in turn be exchanged for Definitive Notes (all as
indicated in the applicable Pricing Supplement) and includes any
replacements for a Note issued pursuant to Condition 10 and, where
applicable, the Receipts relating thereto;
"NOTEHOLDERS" means the several persons who are for the time being
holders of the Notes save that, in respect of the Notes of any Series,
for so long as such Notes or any part thereof are represented by a Global
Note held on behalf of Euroclear and/or of Clearstream, Luxembourg, each
person (other than Euroclear or Clearstream, Luxembourg) who is for the
time being shown in the records of Euroclear or of Clearstream,
Luxembourg as the holder of a particular nominal amount of the Notes of
such Series (in which regard any certificate or other document issued by
Euroclear or Clearstream, Luxembourg as to the nominal amount of such
Notes standing to the account of any person shall be conclusive and
binding for all
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purposes save in the case of manifest error) shall be treated by the
Issuer, the Guarantor, the Agent and any other Paying Agent as the holder
of such nominal amount of such Notes for all purposes other than with
respect to the payment of principal or interest on such Notes, for which
purpose the bearer of the relevant Global Note shall be treated by the
Issuer, the Guarantor, the Agent and any other Paying Agent as the holder
of such nominal amount of such Notes in accordance with and subject to
the terms of the relevant Global Note and this agreement and the
expressions "NOTEHOLDER", "HOLDER OF NOTES" and related expressions shall
be construed accordingly;
"OUTSTANDING" means, in relation to the Notes, all the Notes issued other
than (a) those which have been redeemed in full in accordance with the
Conditions, (b) those in respect of which the date for redemption in
accordance with the Conditions has occurred and the redemption moneys
wherefor (including all interest (if any) accrued thereon to the date for
such redemption and any interest (if any) payable under the Conditions
after such date) have been duly paid to the Agent as provided herein
(and, where appropriate, notice has been given to the Noteholders of the
relevant Series in accordance with Condition 14) and remain available for
payment against presentation of Notes, (c) those which have become void
under Condition 8, (d) those which have been purchased and cancelled as
provided in Condition 6, (e) those mutilated or defaced Notes which have
been surrendered in exchange for replacement Notes pursuant to Condition
10, (f) (for the purpose only of determining the nominal amount of the
Notes outstanding and without prejudice to their status for any other
purpose) those Notes alleged to have been lost, stolen or destroyed and
in respect of which replacement Notes have been issued pursuant to
Condition 10, (g) Temporary Global Notes to the extent that they shall
have been duly exchanged for Permanent Global Notes and/or Definitive
Notes and Permanent Global Notes to the extent that they shall have been
duly exchanged for Definitive Notes, in each case pursuant to their
respective provisions and (h) Temporary Global Notes and Permanent Global
Notes which have become void in accordance with their terms (provided
that at the Relevant Time (as defined in the Deed of Covenant) the
Underlying Notes (as defined in the Deed of Covenant) will be deemed to
be still outstanding) and,
PROVIDED THAT for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the Noteholders or
any of them; and
(ii) the determination of how many and which Notes are for the time being
outstanding for the purposes of paragraphs 2, 5 and 6 of Schedule 4
hereto,
those Notes (if any) which are for the time being held by any person
(including but not limited to any Issuer, the Guarantor or any of their
respective Subsidiaries) for the benefit of any Issuer, the Guarantor or
any of their respective Subsidiaries shall (unless and until ceasing to
be so held) be deemed not to be outstanding;
"PERMANENT GLOBAL NOTE" means a global note in the form or substantially
in the form set out in Part II of Schedule 2 together with the copy of
the applicable Pricing Supplement attached thereto with such
modifications (if any) as may be agreed between the relevant Issuer, the
Guarantor, the Agent and the relevant Dealer, comprising some or all of
the Notes of the same Series, issued by the relevant Issuer pursuant to
the Program Agreement or any other agreement between the relevant Issuer,
the Guarantor and the relevant Dealer in exchange for the whole or part
of any Temporary Global Note issued in respect of such Notes;
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"PROCEDURES MEMORANDUM" means the operating and administrative procedures
memorandum set out in Schedule 6 hereto;
"PUT NOTICE" means a notice in the form set out in Schedule 5;
"RECEIPT" means a receipt attached on issue to a Definitive Note
redeemable in instalments for the payment of an instalment of principal,
such receipt being in the form or substantially in the form set out in
Part V of Schedule 2 or in such other form as may be agreed between the
relevant Issuer, the Guarantor, the Agent and the relevant Dealer and
includes any replacements for Receipts issued pursuant to Condition 10;
"RECEIPTHOLDERS" means the several persons who are for the time being
holders of the Receipts;
"REFERENCE BANKS" means, in the case of sub-clause 8(2)(a)(i) below,
those banks whose offered rates were used to determine such quotation
when such quotation last appeared on the Relevant Screen Page and, in the
case of sub-clause 8(2)(a)(ii) below, those banks whose offered
quotations last appeared on the Relevant Screen Page when no fewer than
three such offered quotations appeared;
"REPLACEMENT AGENT" means the Paying Agent in Luxembourg;
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended;
"SERIES" means a Tranche of the Notes together with any further Tranche
or Tranches of the Notes which are (i) expressed to be consolidated and
form a single series and (ii) identical in all respects (including as to
listing) except for their respective Issue Dates, Interest Commencement
Dates and/or Issue Prices and the expressions "Notes of the relevant
Series" and "holders of Notes of the relevant Series" and related
expressions shall be construed accordingly;
"TALONS" means the talons (if any) appertaining to, and exchangeable in
accordance with the provisions therein contained for further Coupons
appertaining to, a Definitive Note (other than a Zero Coupon Note), such
talons being in the form or substantially in the form set out in Part VI
of Schedule 2 or in such other form as may be agreed between the relevant
Issuer, the Guarantor, the Agent and the relevant Dealer and includes any
replacements for Talons issued pursuant to Condition 10;
"TEMPORARY GLOBAL NOTE" means a global note in the form or substantially
in the form set out in Part I of Schedule 2 together with the copy of the
applicable Pricing Supplement attached thereto with such modifications
(if any) as may be agreed between the relevant Issuer, the Guarantor, the
Agent and the relevant Dealer, comprising some or all of the Notes of the
same Series, issued by the relevant Issuer pursuant to the Program
Agreement or any other agreement between the Issuer and the relevant
Dealer;
"TRANCHE" means all Notes which are identical in all respects (including
as to listing); and
"ZERO COUPON NOTE" means a Note on which no interest is payable.
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(3) Words denoting the singular number only shall include the plural number
also and vice versa;
words denoting one gender only shall include the other gender; and
words denoting persons only shall include firms and corporations and vice
versa.
(4) All references in this Agreement to costs or charges or expenses shall
include any value added tax or similar tax charged or chargeable in
respect thereof.
(5) For the purposes of this Agreement, the Notes of each Series shall form a
separate series of Notes and the provisions of this Agreement shall apply
mutatis mutandis separately and independently to the Notes of each Series
and in this Agreement the expressions "Notes", "NOTEHOLDERS", "RECEIPTS",
"RECEIPTHOLDERS", "COUPONS", "COUPONHOLDERS" and "TALONS" shall be
construed accordingly.
(6) All references in this Agreement to principal and/or interest or both in
respect of the Notes or to any moneys payable by any Issuer and/or the
Guarantor under this Agreement shall have the meaning set out in
Condition 5(d).
(7) All references in this Agreement to the "RELEVANT CURRENCY" shall be
construed as references to the currency in which the relevant Notes
and/or Coupons are denominated (or payable in the case of Dual Currency
Notes).
(8) In this Agreement, clause headings are inserted for convenience and ease
of reference only and shall not affect the interpretation of this
Agreement. All references in this Agreement to the provisions of any
statute shall be deemed to be references to that statute as from time to
time modified, extended, amended or re-enacted or to any statutory
instrument, order or regulation made thereunder or under such
re-enactment.
(9) All references in this Agreement to an agreement, instrument or other
document (including, without limitation, this Agreement, the Program
Agreement, the Deed of Covenant, the Guarantee, the Procedures
Memorandum, the Notes and any Conditions appertaining thereto) shall be
construed as a reference to that agreement, instrument or document as the
same may be amended, modified, varied or supplemented from time to time.
(10) Any references herein to Euroclear and/or Clearstream, Luxembourg shall,
whenever the context so permits, be deemed to include a reference to any
additional or alternative clearing system approved by the relevant
Issuer, the Guarantor and the Agent.
2. APPOINTMENT OF AGENT AND PAYING AGENTS
(1) The Agent is hereby appointed, and the Agent hereby agrees to act, as
agent of the Issuers and the Guarantor, upon the terms and subject to the
conditions set out below, for the purposes of, inter alia:
(a) completing, authenticating and delivering Global Notes and (if
required) authenticating and delivering Definitive Notes;
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(b) exchanging Temporary Global Notes for Permanent Global Notes or
Definitive Notes, as the case may be, in accordance with the terms
of such Temporary Global Notes;
(c) exchanging Permanent Global Notes for Definitive Notes in accordance
with the terms of such Permanent Global Notes;
(d) paying sums due on Global Notes and Definitive Notes, Receipts and
Coupons;
(e) exchanging Talons for Coupons in accordance with the Conditions;
(f) determining the end of the Distribution Compliance Period applicable
to each Tranche;
(g) unless otherwise specified in the applicable Pricing Supplement,
determining the interest and/or other amounts payable in respect of
the Notes in accordance with the Conditions;
(h) arranging on behalf of any Issuer and/or the Guarantor for notices
to be communicated to the Noteholders;
(i) preparing and sending monthly reports to the Bank of England and
ensuring that, as directed by the relevant Issuer, all necessary
action is taken to comply with any reporting requirements of any
competent authority in respect of any relevant currency as may be in
force from time to time with respect to the Notes to be issued under
the Program;
(j) subject to the Procedures Memorandum, submitting to the relevant
authority or authorities such number of copies of each Pricing
Supplement which relates to Notes which are to be listed as the
relevant authority or authorities may reasonably require;
(k) acting as Calculation Agent in respect of Notes where named as such
in the relevant Pricing Supplement; and
(l) performing all other obligations and duties imposed upon it by the
Conditions, this Agreement and the Procedures Memorandum.
(2) Each Paying Agent is hereby appointed as paying agent of the Issuers and
the Guarantor, upon the terms and subject to the conditions set out
below, for the purposes of paying sums due on Notes, Receipts and Coupons
and of performing all other obligations and duties imposed upon it by the
Conditions and this Agreement.
(3) Each of the Issuer and the Guarantor undertakes that, if the conclusions
of the ECOFIN Council meeting of 26th-27th November, 2000 are
implemented, it will ensure that it maintains a paying agent in an EU
member state that will not be obliged to withhold or deduct tax pursuant
to the Directive.
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3. ISSUE OF TEMPORARY GLOBAL NOTES
(1) Subject to sub-clause (2) below, following receipt of a faxed copy of the
Pricing Supplement signed by any Issuer and the Guarantor, the relevant
Issuer and the Guarantor hereby authorise the Agent and the Agent hereby
agrees to take the steps required of the Agent in the Procedures
Memorandum. For this purpose the Agent will, inter alia, on behalf of the
relevant Issuer:
(a) prepare a Temporary Global Note by attaching a copy of the
applicable Pricing Supplement to a copy of the applicable master
Temporary Global Note;
(b) authenticate such Temporary Global Note;
(c) deliver such Temporary Global Note to the specified common
depositary of Euroclear and/or Clearstream, Luxembourg against
receipt from the common depositary of confirmation that such common
depositary is holding the Temporary Global Note in safe custody for
the account of Euroclear and/or Clearstream, Luxembourg and to
instruct Euroclear or Clearstream, Luxembourg or both of them (as
the case may be) unless otherwise agreed in writing between the
Agent and the relevant Issuer (i) in the case of an issue of Notes
not subscribed pursuant to a Subscription Agreement, to credit the
Notes represented by such Temporary Global Note to the Agent's
distribution account, and (ii) in the case of Notes subscribed
pursuant to a Subscription Agreement, to hold the Notes represented
by such Temporary Global Note to the Issuer's order; and
(d) ensure that the Notes of each Tranche are assigned a common code and
ISIN by Euroclear and Clearstream, Luxembourg which are different
from the common code and ISIN assigned to Notes of any other Tranche
of the same Series until not earlier than 40 days after the
completion of the distribution of the Notes of such Tranche as
notified by the Agent to the relevant Dealer.
(2) The Agent shall only be required to perform its obligations under
sub-clause (1) above if it holds:
(a) a master Temporary Global Note for Notes issued pursuant to the UK
Banking ▇▇▇ ▇▇▇▇ (Exempt Transactions) Regulations 1997 and a master
Temporary Global Note for other Notes, each duly executed by a
person or persons authorised to execute the same on behalf of the
relevant Issuer, which may be used by the Agent for the purpose of
preparing a Temporary Global Note in accordance with sub-clause
(1)(a); and
(b) a master Permanent Global Note for Notes issued pursuant to the UK
Banking ▇▇▇ ▇▇▇▇ (Exempt Transactions) Regulations 1997 and a master
Permanent Global Note for other Notes, each duly executed by a
person or persons authorised to execute the same on behalf of the
relevant Issuer, which may be used by the Agent for the purpose of
preparing a Permanent Global Note in accordance with clause 4 below.
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4. DETERMINATION OF EXCHANGE DATE, ISSUE OF PERMANENT GLOBAL NOTES AND
DEFINITIVE NOTES AND DETERMINATION OF END OF DISTRIBUTION COMPLIANCE
PERIOD
(1) (a) The Agent shall determine the Exchange Date for each Temporary
Global Note in accordance with the terms thereof. Forthwith upon
determining the Exchange Date in respect of any Tranche, the Agent
shall notify such determination to the relevant Issuer, the
Guarantor, the other Paying Agents, the relevant Dealer, Euroclear
and Clearstream, Luxembourg.
(b) The Agent shall deliver, upon notice from Euroclear or Clearstream,
Luxembourg, a Permanent Global Note or Definitive Notes, as the case
may be, in accordance with the terms of the Temporary Global Note.
Where a Temporary Global Note is to be exchanged for a Permanent
Global Note, the Agent is hereby authorised on behalf of the
relevant Issuer:
(i) in the case of the first Tranche of any Series of Notes, to
prepare and complete a Permanent Global Note in accordance with
the terms of the Temporary Global Note applicable to such
Tranche by attaching a copy of the applicable Pricing
Supplement to a copy of the applicable master Permanent Global
Note;
(ii) in the case of the first Tranche of any Series of Notes, to
authenticate such Permanent Global Note;
(iii) in the case of the first Tranche of any Series of Notes, to
deliver such Permanent Global Note to the common depositary
which is holding the Temporary Global Note applicable to such
Tranche for the time being on behalf of Euroclear and/or
Clearstream, Luxembourg either in exchange for such Temporary
Global Note or, in the case of a partial exchange, on entering
details of such partial exchange of the Temporary Global Note
in the relevant spaces in Schedule Two of both the Temporary
Global Note and the Permanent Global Note; and
(iv) in any other case, by attaching a copy of the applicable
Pricing Supplement to the Permanent Global Note applicable to
the relevant Series and entering details of any exchange in
whole or part as aforesaid.
(2) (a) In the case of a Tranche in respect of which there is only one
Dealer, the Agent will determine the end of the Distribution
Compliance Period in respect of such Tranche as being the fortieth
day (or such later day as may be specified in the applicable Pricing
Supplement) following the date certified by the relevant Dealer to
the Agent as being the date as of which distribution of the Notes of
that Tranche was completed.
(b) In the case of a Tranche in respect of which there is more than one
Dealer but is not issued on a syndicated basis, the Agent will
determine the end of the Distribution Compliance Period in respect
of such Tranche as being the fortieth day (or such later day as may
be specified in the applicable Pricing Supplement) following the
latest of the dates certified by all the relevant Dealers to the
Agent as being the respective
11
dates as of which distribution of the Notes of that Tranche
purchased by each such Dealer was completed.
(c) In the case of a Tranche issued on a syndicated basis, the Agent
will determine the end of the Distribution Compliance Period in
respect of such Tranche as being the fortieth day (or such later day
as may be specified in the applicable Pricing Supplement) following
the date certified by the Lead Manager to the Agent as being the
date as of which distribution of the Notes of that Tranche was
completed.
(d) Forthwith upon determining the end of the Distribution Compliance
Period in respect of any Tranche, the Agent shall notify such
determination to the relevant Issuer, the Guarantor, Euroclear,
Clearstream, Luxembourg, the relevant Dealer(s) (in the case of a
non-syndicated issue) and the Lead Manager (in the case of a
syndicated issue).
5. ISSUE OF DEFINITIVE NOTES
(1) Upon notice from Euroclear or Clearstream, Luxembourg pursuant to the
terms of a Temporary Global Note or a Permanent Global Note, as the case
may be, the Agent shall deliver the relevant Definitive Note(s) in
accordance with the terms of the relevant Global Note. For this purpose
the Agent is hereby authorised on behalf of the relevant Issuer:
(a) to authenticate such Definitive Note(s) in accordance with the
provisions of this Agreement; and
(b) to deliver such Definitive Note(s) to or to the order of Euroclear
and/or Clearstream, Luxembourg either in exchange for such Global
Note or, in the case of a partial exchange of a Temporary Global
Note, on entering details of any partial exchange of the Temporary
Global Note in the relevant space in Schedule Two of such Temporary
Global Note.
The Agent shall notify the relevant Issuer forthwith upon receipt of a
request for issue of Definitive Note(s) in accordance with the provisions
of a Temporary Global Note or Permanent Global Note, as the case may be,
(and the aggregate nominal amount of such Temporary Global Note or
Permanent Global Note, as the case may be, to be exchanged in connection
therewith).
(2) Each Issuer undertakes to deliver to the Agent sufficient numbers of
executed Definitive Notes with, if applicable, Receipts, Coupons and
Talons attached to enable the Agent to comply with its obligations under
this clause.
6. TERMS OF ISSUE
(1) The Agent shall cause all Temporary Global Notes, Permanent Global Notes
and Definitive Notes delivered to and held by it under this Agreement to
be maintained in safe custody and shall ensure that such Notes are issued
only in accordance with the provisions of this Agreement and the relevant
Global Note and Conditions.
(2) Subject to the procedures set out in the Procedures Memorandum, for the
purposes of clause 3(1) the Agent is entitled to treat a telephone or
facsimile communication from a person purporting to be (and who the Agent
believes in good faith to be) the authorised representative of any Issuer
and/or the Guarantor named in the lists referred to in, or notified
12
pursuant to, clause 19(7) as sufficient instructions and authority of
such Issuer and/or the Guarantor for the Agent to act in accordance with
clause 3(1).
(3) In the event that a person who has signed on behalf of any Issuer any
Note not yet issued but held by the Agent in accordance with clause 3(1)
ceases to be authorised as described in clause 19(7), the Agent shall
(unless the relevant Issuer gives notice to the Agent that Notes signed
by that person do not constitute valid and binding obligations of the
relevant Issuer or otherwise until replacements have been provided to the
Agent) continue to have authority to issue any such Notes, and the
relevant Issuer hereby warrants to the Agent that such Notes shall,
unless notified as aforesaid, be valid and binding obligations of such
Issuer. Promptly upon such person ceasing to be authorised, the relevant
Issuer shall provide the Agent with replacement Notes and upon receipt of
such replacement Notes the Agent shall cancel and destroy the Notes held
by it which are signed by such person and shall provide to the relevant
Issuer a confirmation of destruction in respect thereof specifying the
Notes so cancelled and destroyed.
(4) If the Agent pays an amount (the "ADVANCE") to the Issuer on the basis
that a payment (the "PAYMENT") has been, or will be, received from a
Dealer and if the Payment is not received by the Agent on the date the
Agent pays the relevant Issuer, the relevant Issuer (failing which the
Guarantor) shall repay to the Agent the Advance and shall pay interest on
the Advance (or the unreimbursed portion thereof) from (and including)
the date such Advance is made to (but excluding) the earlier of repayment
of the Advance and receipt by the Agent of the Payment (at a rate quoted
at that time by the Agent as its cost of funding the Advance provided
that evidence of the basis of such rate is given to the relevant Issuer
and the Guarantor).
(5) Except in the case of issues where the Agent does not act as receiving
bank for the relevant Issuer in respect of the purchase price of the
Notes being issued, if on the relevant Issue Date a Dealer does not pay
the full purchase price due from it in respect of any Note (the
"DEFAULTED NOTE") and, as a result, the Defaulted Note remains in the
Agent's distribution account with Euroclear and/or Clearstream,
Luxembourg after such Issue Date, the Agent will continue to hold the
Defaulted Note to the order of the relevant Issuer. The Agent shall
notify the relevant Issuer forthwith of the failure of the Dealer to pay
the full purchase price due from it in respect of any Defaulted Note and,
subsequently, shall notify the relevant Issuer forthwith upon receipt
from the Dealer of the full purchase price in respect of such Defaulted
Note.
7. PAYMENTS
(1) The Issuer (failing which the Guarantor) will, before 10.00 a.m. (local
time in the relevant financial centre of the payment), on each date on
which any payment in respect of any Note becomes due, transfer to an
account specified by the Agent such amount in the relevant currency as
shall be sufficient for the purposes of such payment in funds settled
through such payment system as the Agent and the relevant Issuer or, as
the case may be, the Guarantor may agree.
(2) The Issuer (failing which the Guarantor) will ensure that no later than
10.00 a.m. (London time) on the second Business Day (as defined below)
immediately preceding the date on which any payment is to be made to the
Agent pursuant to sub-clause (1), the Agent shall receive from the paying
bank of the Issuer or, as the case may be, the Guarantor a payment
confirmation in the form of a SWIFT message.
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For the purposes of this clause "BUSINESS DAY" means a day which is both:
(a) a day on which commercial banks and foreign exchange markets settle
payments in London and any other place specified in the applicable
Pricing Supplement as an Additional Business Centre; and
(b) either (i) in relation to a payment to be made in a Specified
Currency other than euro, a day on which commercial banks and
foreign exchange markets settle payments in the principal financial
centre of the country of the relevant Specified Currency (if other
than London and any Additional Business Centre) and which, if the
Specified Currency is New Zealand Dollars, shall be Auckland or (ii)
in relation to a payment to be made in euro, a day on which the
TARGET System is open, where "TARGET SYSTEM" means the
Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System. Unless otherwise provided in the applicable Pricing
Supplement, the principal financial centre for any currency shall be
as provided in the ISDA Definitions.
(3) The Agent shall ensure that payments of both principal and interest in
respect of a Temporary Global Note will be made only to the extent that
certification of non-U.S. beneficial ownership as required by U.S.
securities laws and U.S. Treasury regulations (in the form set out in the
Temporary Global Note) has been received from Euroclear and/or
Clearstream, Luxembourg in accordance with the terms thereof.
(4) The Agent or the relevant Paying Agent shall pay or cause to be paid all
amounts due in respect of the Notes on behalf of each Issuer and the
Guarantor in the manner provided in the Conditions. If any payment
provided for in sub-clause (1) is made late but otherwise in accordance
with the provisions of this Agreement, the Agent and each Paying Agent
shall nevertheless make payments in respect of the Notes as aforesaid
following receipt by it of such payment.
(5) If for any reason the Agent considers in its sole discretion that the
amounts to be received by the Agent pursuant to sub-clause (1) will be,
or the amounts actually received by it pursuant thereto are, insufficient
to satisfy all claims in respect of all payments then falling due in
respect of the Notes, neither the Agent nor any Paying Agent shall be
obliged to pay any such claims until the Agent has received the full
amount of all such payments.
(6) Without prejudice to sub-clauses (4) and (5), if the Agent pays any
amounts to the holders of Notes, Receipts or Coupons or to any Paying
Agent at a time when it has not received payment in full in respect of
the relevant Notes in accordance with sub-clause (1) (the excess of the
amounts so paid over the amounts so received being the "SHORTFALL"), the
relevant Issuer (failing which the Guarantor) will, in addition to paying
amounts due under sub-clause (1), pay to the Agent on demand interest (at
a rate which represents the Agent's cost of funding the Shortfall as
evidenced to the relevant Issuer and the Guarantor by the provision of
details of the calculation of the cost of funding) on the Shortfall (or
the unreimbursed portion thereof) until the receipt in full by the Agent
of the Shortfall.
(7) The Agent shall on demand promptly reimburse each Paying Agent for
payments in respect of Notes properly made by such Paying Agent in
accordance with this Agreement and the Conditions unless the Agent has
notified the Paying Agent, prior to the opening of business in the
location of the office of the Paying Agent through which payment in
respect of the
14
Notes can be made on the due date of a payment in respect of the Notes,
that the Agent does not expect to receive sufficient funds to make
payment of all amounts falling due in respect of such Notes.
(8) Whilst any Notes are represented by Global Notes, all payments due in
respect of such Notes shall be made to, or to the order of, the holder of
the Global Notes, subject to and in accordance with the provisions of the
Global Notes. On the occasion of any such payment the Paying Agent to
which the Global Note was presented for the purpose of making such
payment shall cause the appropriate Schedule to the relevant Global Note
to be annotated so as to evidence the amounts and dates of such payments
of principal and/or interest as applicable.
(9) If the amount of principal and/or interest then due for payment is not
paid in full (otherwise than by reason of a deduction required by law to
be made therefrom), the Paying Agent to which a Note is presented for the
purpose of making such payment shall make a record of such Shortfall on
the Note and such record shall, in the absence of manifest error, be
prima facie evidence that the payment in question has not to that extent
been made.
(10) The obligations of the Guarantor as set forth in this clause 7 shall be
based on the Guarantee only and not be deemed to be primary obligations
of the Guarantor.
8. DETERMINATIONS AND NOTIFICATIONS IN RESPECT OF NOTES AND INTEREST
DETERMINATION
(1) DETERMINATIONS AND NOTIFICATIONS
(a) The Agent shall make all such determinations and calculations
(howsoever described) as it is required to do under the Conditions,
all subject to and in accordance with the Conditions.
(b) The Agent shall not be responsible to any Issuer, the Guarantor or
to any third party (except in the event of negligence, default or
bad faith of the Agent, as the case may be) as a result of the Agent
having acted on any quotation given by any Reference Bank which
subsequently may be found to be incorrect.
(c) The Agent shall promptly notify (and confirm in writing to) the
relevant Issuer, the Guarantor, the other Paying Agents and (in
respect of a Series of Notes listed on a Stock Exchange) the
relevant Stock Exchange and Listing Agent of, inter alia, each Rate
of Interest, Interest Amount and Interest Payment Date and all other
amounts, rates and dates which it is obliged to determine or
calculate under the Conditions as soon as practicable after the
determination thereof and of any subsequent amendment thereto
pursuant to the Conditions.
(d) The Agent shall use its best endeavours to cause each Rate of
Interest, Interest Amount and Interest Payment Date and all other
amounts, rates and dates which it is obliged to determine or
calculate under the Conditions to be published as required in
accordance with the Conditions as soon as possible after their
determination or calculation.
(e) If the Agent does not at any material time for any reason determine
and/or calculate and/or publish the Rate of Interest, Interest
Amount and/or Interest Payment Date in
15
respect of any Interest Period or any other amount, rate or date as
provided in this clause, it shall forthwith notify the relevant
Issuer, the Guarantor and the other Paying Agents of such fact.
(f) Determinations with regard to Notes (including, without limitation,
Indexed Notes and Dual Currency Notes) shall be made by the
Calculation Agent specified in the applicable Pricing Supplement in
the manner specified in the applicable Pricing Supplement. Unless
otherwise agreed between the relevant Issuer, the Guarantor and the
relevant Dealer or unless the Agent is the Calculation Agent (in
which case the provisions of this Agreement shall apply), such
determinations shall be made on the basis of a Calculation Agency
Agreement substantially in the form of Appendix A to this Agreement.
(2) INTEREST DETERMINATION, SCREEN RATE DETERMINATION INCLUDING FALLBACK
PROVISIONS
(a) Where Screen Rate Determination is specified in the applicable
Pricing Supplement as the manner in which the Rate of Interest is to
be determined, the Rate of Interest for each Interest Period will,
subject as provided below, be either:
(i) the offered quotation; or
(ii) the arithmetic mean (rounded if necessary to the fifth decimal
place, with 0.000005 being rounded upwards) of the offered
quotations,
(expressed as a percentage rate per annum), for the Reference Rate
for deposits in the Specified Currency for that Interest Period
which appears or appear, as the case may be, on the Relevant Screen
Page as at 11.00 a.m. (London time, in the case of LIBOR, or
Brussels time, in the case of EURIBOR) on the Interest Determination
Date in question plus or minus (as indicated in the applicable
Pricing Supplement) the Margin (if any), all as determined by the
Agent. If five or more such offered quotations are available on the
Relevant Screen Page, the highest (or, if there is more than one
such highest quotation, one only of such quotations) and the lowest
(or, if there is more than one such lowest quotation, one only of
such quotations) shall be disregarded by the Agent for the purpose
of determining the arithmetic mean (rounded as provided above) of
such offered quotations.
(b) If the Relevant Screen Page is not available or, if in the case of
sub-clause 8(2)(a)(i) above, no such offered quotation appears or,
in the case of sub-clause 8(2)(a)(ii) above, fewer than three such
offered quotations appear, in each case as at the time specified in
the preceding paragraph the Agent shall request the principal London
office (in the case of LIBOR) or Euro-zone office (in the case of
EURIBOR) of each of the Reference Banks to provide the Agent with
its offered quotation (expressed as a percentage rate per annum) for
the Reference Rate at approximately 11.00 a.m. (London time, in the
case of LIBOR, or Brussels time, in the case of EURIBOR) on the
Interest Determination Date in question. If two or more of the
Reference Banks provide the Agent with such offered quotations, the
Rate of Interest for such Interest Period shall be the arithmetic
mean (rounded if necessary to the fifth decimal place with 0.000005
being rounded upwards) of such offered quotations plus or minus (as
appropriate) the Margin (if any), all as determined by the Agent.
16
(c) If on any Interest Determination Date one only or none of the
Reference Banks provides the Agent with such offered quotations as
provided in the preceding paragraph, the Rate of Interest for the
relevant Interest Period shall be the rate per annum which the Agent
determines as being the arithmetic mean (rounded if necessary to the
fifth decimal place, with 0.000005 being rounded upwards) of the
rates, as communicated to (and at the request of) the Agent by the
Reference Banks or any two or more of them, at which such banks were
offered, at approximately 11.00 a.m. (London time, in the case of
LIBOR, or Brussels time, in the case of EURIBOR) on the relevant
Interest Determination Date, deposits in the Specified Currency for
a period equal to that which would have been used for the Reference
Rate by leading banks in the London inter-bank market (in the case
of LIBOR) or the Euro-zone inter-bank market (in the case of
EURIBOR) plus or minus (as appropriate) the Margin (if any) or, if
fewer than two of the Reference Banks provide the Agent with such
offered rates, the offered rate for deposits in the Specified
Currency for a period equal to that which would have been used for
the Reference Rate, or the arithmetic mean (rounded as provided
above) of the offered rates for deposits in the Specified Currency
for a period equal to that which would have been used for the
Reference Rate, at which, at approximately 11.00 a.m. (London time,
in the case of LIBOR, or Brussels time, in the case of EURIBOR) on
the relevant Interest Determination Date, any one or more banks
(which bank or banks is or are in the opinion of the relevant Issuer
suitable for such purpose) informs the Agent it is quoting to
leading banks in the London inter-bank market (in the case of LIBOR)
or the Euro-zone inter-bank market (in the case of EURIBOR) plus or
minus (as appropriate) the Margin (if any), provided that, if the
Rate of Interest cannot be determined in accordance with the
foregoing provisions of this paragraph, the Rate of Interest shall
be determined as at the last preceding Interest Determination Date
(though substituting, where a different Margin is to be applied to
the relevant Interest Period from that which applied to the last
preceding Interest Period, the Margin relating to the relevant
Interest Period, in place of the Margin relating to that last
preceding Interest Period).
(d) If the Reference Rate from time to time in respect of Floating Rate
Notes is specified in the applicable Pricing Supplement as being
other than LIBOR or, as the case may be, EURIBOR, the Rate of
Interest in respect of such Notes will be determined as provided in
the applicable Pricing Supplement.
9. NOTICE OF ANY WITHHOLDING OR DEDUCTION
If any Issuer and/or the Guarantor is, in respect of any payment,
compelled to withhold or deduct any amount for or on account of taxes,
duties, assessments or governmental charges as specifically contemplated
under the Conditions, such Issuer and/or the Guarantor shall give notice
thereof to the Agent as soon as it becomes aware of the requirement to
make such withholding or deduction and shall give to the Agent such
information as it shall require to enable it to comply with such
requirement.
10. DUTIES OF THE AGENT IN CONNECTION WITH EARLY REDEMPTION
(1) If any Issuer decides to redeem any Notes for the time being outstanding
prior to their Maturity Date in accordance with the Conditions, such
Issuer shall give notice of such decision to the Agent not less than 15
days before the date on which the relevant Issuer will
17
give notice to the Noteholders in accordance with the Conditions of such
redemption in order to enable the Agent to undertake its obligations
herein and in the Conditions.
(2) If some only of the Notes are to be redeemed on such date, the Agent
shall, in the case of Definitive Notes, make the required drawing in
accordance with the Conditions but shall give the relevant Issuer
reasonable notice of the time and place proposed for such drawing and the
relevant Issuer shall be entitled to send representatives to attend such
drawing and shall, in the case of Notes in global form, co-ordinate the
selection of Notes to be redeemed with Euroclear and Clearstream,
Luxembourg, all in accordance with the Conditions.
(3) The Agent shall publish the notice required in connection with any such
redemption and shall at the same time also publish a separate list of the
serial numbers of any Notes in definitive form previously drawn and not
presented for redemption. Such notice shall specify the date fixed for
redemption, the redemption amount, the manner in which redemption will be
effected and, in the case of a partial redemption of Definitive Notes,
the serial numbers of the Notes to be redeemed. Such notice will be
published in accordance with the Conditions. The Agent will also notify
the other Paying Agents of any date fixed for redemption of any Notes.
(4) Each Paying Agent will keep a stock of Put Notices and will make such
notices available on demand to holders of Definitive Notes, the
Conditions of which provide for redemption at the option of Noteholders.
Upon receipt of any Note deposited in the exercise of such option in
accordance with the Conditions, the Paying Agent with which such Note is
deposited shall hold such Note (together with any Receipts, Coupons and
Talons relating to it deposited with it) on behalf of the depositing
Noteholder (but shall not, save as provided below, release it) until the
due date for redemption of the relevant Note consequent upon the exercise
of such option, when, subject as provided below, it shall present such
Note (and any such Receipts, Coupons and Talons) to itself for payment of
the amount due thereon together with any interest due on such date in
accordance with the Conditions and shall pay such moneys in accordance
with the directions of the Noteholder contained in the relevant Put
Notice. If, prior to such due date for its redemption, such Note becomes
immediately due and repayable or if upon due presentation payment of such
redemption moneys is improperly withheld or refused, the Paying Agent
concerned shall post such Note (together with any such Receipts, Coupons
and Talons) by uninsured post to, and at the risk of, the relevant
Noteholder unless the Noteholder has otherwise requested and paid the
costs of such insurance to the relevant Paying Agent at the time of
depositing the Notes at such address as may have been given by the
Noteholder in the relevant Put Notice. At the end of each period for the
exercise of such option, each Paying Agent shall promptly notify the
Agent of the principal amount of the Notes in respect of which such
option has been exercised with it together with their serial numbers and
the Agent shall promptly notify such details to the relevant Issuer.
11. RECEIPT AND PUBLICATION OF NOTICES
(1) Forthwith upon the receipt by the Agent of a demand or notice from any
Noteholder in accordance with the Conditions the Agent shall forward a
copy thereof to the relevant Issuer and the Guarantor.
(2) On behalf of and at the request and expense of each Issuer (failing which
the Guarantor), the Agent shall cause to be published all notices
required to be given by any Issuer or the Guarantor to the Noteholders in
accordance with the Conditions.
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12. CANCELLATION OF NOTES, RECEIPTS, COUPONS AND TALONS
(1) All Notes which are redeemed, all Receipts or Coupons which are paid and
all Talons which are exchanged shall be cancelled by the Agent or Paying
Agent by which they are redeemed, paid or exchanged. In addition, all
Notes which are purchased by or on behalf of any Issuer, the Guarantor or
any of their respective subsidiaries and are surrendered to a Paying
Agent for cancellation, together (in the case of Definitive Notes) with
all unmatured Receipts, Coupons or Talons (if any) attached thereto or
surrendered therewith, shall be cancelled by the Paying Agent to which
they are surrendered. Each of the other Paying Agents shall give to the
Agent details of all payments made by it and shall deliver all cancelled
Notes, Receipts, Coupons and Talons to the Agent.
(2) A certificate stating:
(a) the aggregate nominal amount of Notes which have been redeemed and
the aggregate amount paid in respect thereof;
(b) the number of Notes cancelled together (in the case of Notes in
definitive form) with details of all unmatured Receipts, Coupons or
Talons (if any) attached thereto or delivered therewith;
(c) the aggregate amount paid in respect of interest on the Notes;
(d) the total number by maturity date of Receipts, Coupons and Talons so
cancelled; and
(e) (in the case of Definitive Notes) the serial numbers of such Notes,
shall be given to the relevant Issuer and the Guarantor by the Agent as
soon as reasonably practicable and in any event within three months after
the date of such repayment, payment, cancellation or replacement, as the
case may be.
(3) The Agent shall destroy all cancelled Notes, Receipts, Coupons and Talons
and, forthwith upon destruction, furnish the Issuer with a certificate of
the serial numbers of the Notes (in the case of Notes in definitive form)
and the number by maturity date of Receipts, Coupons and Talons so
destroyed.
(4) Without prejudice to the obligations of the Agent pursuant to sub-clause
(2), the Agent shall keep a full and complete record of all Notes,
Receipts, Coupons and Talons (other than serial numbers of Coupons,
except those which have been replaced pursuant to Condition 10) and of
their redemption, purchase by or on behalf of any Issuer or the Guarantor
or any of their respective subsidiaries and cancellation, payment or
replacement (as the case may be) and of all replacement Notes, Receipts,
Coupons or Talons issued in substitution for mutilated, defaced,
destroyed, lost or stolen Notes, Receipts, Coupons or Talons. The Agent
shall in respect of the Coupons of each maturity retain (in the case of
Coupons other than Talons) until the expiry of ten years from the
Relevant Date in respect of such Coupons and (in the case of Talons)
indefinitely either all paid or exchanged Coupons of that maturity or a
list of the serial numbers of Coupons of that maturity still remaining
unpaid or unexchanged. The Agent shall at all reasonable times make such
record available to the relevant Issuer, the Guarantor and any persons
authorised by either of them for inspection and for the taking of copies
thereof or extracts therefrom.
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(5) All records and certificates made or given pursuant to this clause and
clause 13 shall make a distinction between Notes, Receipts, Coupons and
Talons of each Series.
13. ISSUE OF REPLACEMENT NOTES, RECEIPTS, COUPONS AND TALONS
(1) Each Issuer will cause a sufficient quantity of additional forms of
Notes, Receipts, Coupons and Talons to be available, upon request, to the
Replacement Agent at its specified office for the purpose of issuing
replacement Notes, Receipts, Coupons and Talons as provided below.
(2) The Replacement Agent will, subject to and in accordance with the
Conditions and the following provisions of this clause, cause to be
delivered any replacement Notes, Receipts, Coupons and Talons which any
Issuer may determine to issue in place of Notes, Receipts, Coupons and
Talons which have been lost, stolen, mutilated, defaced or destroyed.
(3) In the case of a mutilated or defaced Note, the Replacement Agent shall
ensure that (unless otherwise covered by such indemnity as the relevant
Issuer may reasonably require) any replacement Note will only have
attached to it Receipts, Coupons and Talons corresponding to those (if
any) attached to the mutilated or defaced Note which is presented for
replacement.
(4) The Replacement Agent shall obtain verification in the case of an
allegedly lost, stolen or destroyed Note, Receipt, Coupon or Talon in
respect of which the serial number is known, that the Note, Receipt,
Coupon or Talon has not previously been redeemed, paid or exchanged, as
the case may be. The Replacement Agent shall not issue any replacement
Note, Receipt, Coupon or Talon unless and until the claimant therefor
shall have:
(a) paid such reasonable costs and expenses as may be incurred in
connection therewith;
(b) furnished it with such evidence (including evidence as to the serial
number of such Note, Receipt, Coupon or Talon) and indemnity (which
may include a bank guarantee) as the relevant Issuer, the Guarantor
and the Agent may reasonably require;
(c) in the case of any mutilated or defaced Note, Receipt, Coupon or
Talon, surrendered it to the Replacement Agent.
(5) The Replacement Agent shall cancel any mutilated or defaced Notes,
Receipts, Coupons and Talons in respect of which replacement Notes,
Receipts, Coupons and Talons have been issued pursuant to this clause and
shall furnish the relevant Issuer and the Guarantor with a certificate
stating the serial numbers of the Notes, Receipts, Coupons and Talons so
cancelled and, unless otherwise instructed by the relevant Issuer in
writing, shall destroy such cancelled Notes, Receipts, Coupons and Talons
and furnish the relevant Issuer and the Guarantor with a destruction
certificate containing the information specified in sub-clause 12(3).
(6) The Replacement Agent shall, on issuing any replacement Note, Receipt,
Coupon or Talon, forthwith inform the relevant Issuer, the Guarantor, the
Agent and the other Paying Agents of the serial number of such
replacement Note, Receipt, Coupon or Talon issued and (if known) of the
serial number of the Note, Receipt, Coupon or Talon in place of which
such replacement Note, Receipt, Coupon or Talon has been issued. Whenever
replacement Receipts, Coupons or Talons are issued pursuant to the
provisions of this clause, the
20
Replacement Agent shall also notify the Agent and any other Paying Agents
of the maturity dates of the lost, stolen, mutilated, defaced or
destroyed Receipts, Coupons or Talons and of the replacement Receipts,
Coupons or Talons issued.
(7) The Agent shall keep a full and complete record of all replacement Notes,
Receipts, Coupons and Talons issued and shall make such record available
at all reasonable times to the Issuers, the Guarantor and any persons
authorised by either of them for inspection and for the taking of copies
thereof or extracts therefrom.
(8) Whenever any Note, Receipt, Coupon or Talon for which a replacement Note,
Receipt, Coupon or Talon has been issued and in respect of which the
serial number is known is presented to the Agent or any of the other
Paying Agents for payment, the Agent or, as the case may be, the relevant
other Paying Agent shall immediately send notice thereof to the relevant
Issuer, the Guarantor and the other Paying Agents.
(9) The Paying Agents shall issue further Coupon sheets against surrender of
Talons. A Talon so surrendered shall be cancelled by the relevant Paying
Agent who (except where the Paying Agent is the Agent) shall inform the
Agent of its serial number. Further Coupon sheets issued on surrender of
Talons shall carry the same serial number as the surrendered Talon.
14. COPIES OF DOCUMENTS AVAILABLE FOR INSPECTION
(1) The executed Guarantee shall be deposited with the Agent and shall be
held in safe custody by it on behalf of the Noteholders, the
Receiptholders and the Couponholders at its specified office for the time
being.
(2) Each Paying Agent shall hold available for inspection at its specified
office during normal business hours copies of all documents required to
be so available by the Conditions of any Notes or the rules of any
relevant Stock Exchange (or any other relevant authority). For these
above purposes, each Issuer and the Guarantor shall furnish the Paying
Agents with sufficient copies of each of the relevant documents.
15. MEETINGS OF NOTEHOLDERS
(1) The provisions of Schedule 4 hereto shall apply to meetings of the
Noteholders and shall have effect in the same manner as if set out in
this Agreement.
(2) Without prejudice to sub-clause (1), each of the Agent and the other
Paying Agents on the request of any Noteholder shall issue voting
certificates and block voting instructions in accordance with Schedule 4
and shall forthwith give notice to the relevant Issuer and the Guarantor
in writing of any revocation or amendment of a block voting instruction.
Each of the Agent and the other Paying Agents will keep a full and
complete record of all voting certificates and block voting instructions
issued by it and will, not less than 24 hours before the time appointed
for holding a meeting or adjourned meeting, deposit at such place as the
Agent shall designate or approve, full particulars of all voting
certificates and block voting instructions issued by it in respect of
such meeting or adjourned meeting.
21
16. COMMISSIONS AND EXPENSES
(1) The Issuers and the Guarantor agree to pay to the Agent such reasonable
fees and commissions as the Issuers and the Guarantor and the Agent shall
separately agree in respect of the services of the Agent and the Paying
Agents hereunder and to reimburse any reasonable out-of-pocket expenses
(including reasonable legal, printing, postage tax and cable) incurred by
the Agent and the Paying Agents in connection with their said services
including the expense of making such notifications and publications to
Noteholders as are required by the Terms and Conditions of any Notes or
as may be required by any Issuer.
(2) In addition, the Issuers and the Guarantor jointly and severally agree
with the Agent to reimburse its reasonable out-of-pocket expenses
(including legal fees) incurred by the Agent in connection with the
preparation, execution and delivery of this Agreement.
(3) The Agent will make payment of the fees and commissions due hereunder to
the Paying Agents and will reimburse their expenses promptly after the
receipt of the relevant moneys from an Issuer or the Guarantor, as the
case may be. None of the Issuers or the Guarantor shall be responsible
for any such payment or reimbursement by the Agent to the Paying Agents.
17. INDEMNITY
(1) Each Issuer will, severally as to itself, and the Guarantor will, jointly
with the relevant Issuer and severally as to itself, indemnify the Agent
and each of the Paying Agents and each of their directors, officers,
employees and agents against any losses, liabilities, claims, actions or
demands and any reasonable out-of-pocket costs and expenses (including,
but not limited to, all reasonable costs, charges and expenses paid or
incurred in disputing or defending any of the foregoing) which it may
incur or which may be made against the Agent or any Paying Agent as a
result of or in connection with its appointment or the exercise of its
powers and duties hereunder except such as may result from its own
default, negligence or bad faith or that of its officers, directors,
employees or agents or the breach by it of the terms of this Agreement.
(2) Each of the Agent and the Paying Agents will severally indemnify each of
the Issuers and the Guarantor and each of their directors, officers,
employees and agents against any loss, liability, claim, action or demand
and any reasonable out-of-pocket costs and expenses (including, but not
limited to, all reasonable costs, legal fees, charges and expenses paid
or incurred in disputing or defending any of the foregoing) which the
relevant company may incur or which may be made against the relevant
company as a result of the breach by the Agent or such Paying Agents of
the terms of this Agreement or its default, negligence or bad faith or
that of its officers, directors, employees or agents.
18. REPAYMENT BY THE AGENT
Upon any Issuer or the Guarantor, as the case may be, being discharged
from its obligation to make payments in respect of any Notes pursuant to
the relevant Conditions, and provided that there is no outstanding, bona
fide and proper claim in respect of any such payments, the Agent shall
forthwith on demand pay to the relevant Issuer sums equivalent to any
amounts paid to it by the relevant Issuer or the Guarantor, as the case
may be, for the purposes of such payments.
22
19. CONDITIONS OF APPOINTMENT
(1) The Agent shall be entitled to deal with money paid to it by any Issuer
or the Guarantor for the purpose of this Agreement in the same manner as
other money paid to a banker by its customers except:
(a) that it shall not exercise any right of set-off, lien or similar
claim in respect thereof;
(b) as provided in sub-clause (2) below; and
(c) that it shall not be liable to account to any Issuer or the
Guarantor for any interest thereon.
(2) In acting hereunder and in connection with the Notes, the Agent and the
other Paying Agents shall act solely as agents of the Issuers and the
Guarantor and will not thereby assume any obligations towards or
relationship of agency or trust for or with any of the owners or holders
of the Notes, Receipts, Coupons or Talons.
(3) The Agent and the other Paying Agents hereby undertake to the Issuers and
the Guarantor to perform such obligations and duties, and shall be
obliged to perform such duties and only such duties, as are herein, in
the Conditions and in the Procedures Memorandum specifically set forth,
and no implied duties or obligations shall be read into this Agreement or
the Notes against the Agent and the other Paying Agents, other than the
duty to act honestly and in good faith and to exercise the diligence of a
reasonably prudent agent in comparable circumstances.
(4) The Agent may consult with legal and other professional advisers and the
written opinion of such advisers shall be full and complete protection in
respect of any action taken, omitted or suffered hereunder in good faith
and in accordance with the opinion of such advisers.
(5) Each of the Agent and the other Paying Agents shall be protected and
shall incur no liability for or in respect of any action taken, omitted
or suffered in reliance upon any instruction, request or order from any
Issuer or the Guarantor or any notice, resolution, direction, consent,
certificate, affidavit, statement, cable, telex or other paper or
document which it reasonably believes to be genuine and to have been
delivered, signed or sent by the proper party or parties or upon written
instructions from the Issuer or the Guarantor.
(6) Any of the Agent and the other Paying Agents and their officers,
directors and employees may become the owner of, or acquire any interest
in, any Notes, Receipts, Coupons or Talons with the same rights that it
or he would have if the Agent or the relevant other Paying Agent, as the
case may be, concerned were not appointed hereunder, and may engage or be
interested in any financial or other transaction with any Issuer or the
Guarantor and may act on, or as depositary, trustee or agent for, any
committee or body of holders of Notes or Coupons or in connection with
any other obligations of any Issuer or the Guarantor as freely as if the
Agent or the relevant other Paying Agent, as the case may be, were not
appointed hereunder.
(7) Each Issuer and the Guarantor shall provide the Agent with a certified
copy of the list of persons authorised to execute documents and take
action on its behalf in connection with this Agreement and shall notify
the Agent immediately in writing if any of such persons ceases to be so
authorised or if any additional person becomes so authorised together, in
the case of an
23
additional authorised person, with evidence satisfactory to the Agent
that such person has been so authorised.
20. COMMUNICATION BETWEEN THE PARTIES
A copy of all communications relating to the subject matter of this
Agreement between any Issuer or the Guarantor and the Noteholders,
Receiptholders or Couponholders and any of the Paying Agents (other than
the Agent) shall be sent to the Agent by the other relevant Paying Agent.
21. CHANGES IN AGENT AND OTHER PAYING AGENTS
(1) Each Issuer and the Guarantor agree that, for so long as any Note is
outstanding, or until moneys for the payment of all amounts in respect of
all outstanding Notes have been made available to the Agent and have been
returned to the relevant Issuer or the Guarantor, as the case may be, as
provided herein (whichever is the later):
(a) so long as any Notes are listed on any Stock Exchange or admitted to
listing by any other relevant authority, there will at all times be
a Paying Agent (which may be the Agent) with a specified office in
such place as may be required by the rules and regulations of such
Stock Exchange or other relevant authority; and
(b) there will at all times be a Paying Agent (which may be the Agent)
with its specified office in a country outside the tax jurisdiction
of the Issuer; and
(c) there will at all times be an Agent.
In addition, each Issuer and the Guarantor shall forthwith appoint a
Paying Agent having a specified office in New York City in the
circumstances described in the final paragraph of Condition 5(b). Any
termination, appointment or change in the Agent or Paying Agent shall
only take effect (other than in the case of insolvency, when it shall be
of immediate effect) after not less than 30 nor more than 45 days' prior
notice thereof shall have been given to the Noteholders in accordance
with Condition 14.
(2) The Agent may (subject as provided in sub-clause (4) below) at any time
resign as Agent by giving at least 90 days' written notice to the Issuers
and the Guarantor of such intention on its part, specifying the date on
which its desired resignation shall become effective.
(3) The Agent may (subject as provided in sub-clause (4) below) be removed at
any time by the Issuers and the Guarantor on at least 45 days' notice by
the filing with it of an instrument in writing signed on behalf of the
Issuers and the Guarantor specifying such removal and the date when it
shall become effective.
(4) Any resignation under sub-clause (2) or removal under sub-clauses (3) or
(5) shall only take effect upon the appointment by the Issuers and the
Guarantor as hereinafter provided, of a successor Agent and (other than
in cases of insolvency of the Agent, when such resignation or removal
shall become effective immediately) on the expiry of the notice to be
given under clause 23. The Issuers and the Guarantor agree with the Agent
that if, by the day falling ten days before the expiry of any notice
under sub-clause (2), the Issuers and the Guarantor have not appointed a
successor Agent, then the Agent shall be entitled, on behalf of the
Issuers and the Guarantor, to appoint as a successor Agent in its place a
reputable financial
24
institution of good standing which the Issuer and the Guarantor shall
approve (such approval not to be unreasonably withheld or delayed).
(5) In case at any time the Agent resigns, or is removed, or becomes
incapable of acting or is adjudged bankrupt or insolvent, or files a
voluntary petition in bankruptcy or makes an assignment for the benefit
of its creditors or consents to the appointment of an administrator,
liquidator or administrative or other receiver of all or a substantial
part of its property, or admits in writing its inability to pay or meet
its debts as they mature or suspends payment thereof, or if any order of
any court is entered approving any petition filed by or against it under
the provisions of any applicable bankruptcy or insolvency law or if a
receiver of it or of all or a substantial part of its property is
appointed or if any officer takes charge or control of it or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, a successor Agent, which shall be a reputable financial
institution of good standing may be appointed by the Issuers and the
Guarantor by an instrument in writing filed with the successor Agent.
Upon the appointment as aforesaid of a successor Agent and acceptance by
the latter of such appointment and (other than in case of insolvency of
the Agent when it shall be of immediate effect) upon expiry of the notice
to be given under clause 23 the Agent so superseded shall cease to be the
Agent hereunder.
(6) Subject to sub-clause (1), the Issuers and the Guarantor may, after prior
consultation with the Agent, terminate the appointment of any of the
other Paying Agents at any time and/or appoint one or more further other
Paying Agents by giving to the Agent, and to the relevant other Paying
Agent at least 45 days' notice in writing to that effect (other than in
the case of insolvency of the other Paying Agent).
(7) Subject to sub-clause (1), all or any of the Paying Agents may resign
their respective appointments hereunder at any time by giving the
Issuers, the Guarantor and the Agent at least 45 days' written notice to
that effect.
(8) Upon its resignation or removal becoming effective, the Agent or the
relevant Paying Agent:
(a) shall forthwith transfer all moneys held by it hereunder and, if
applicable, the records referred to in clauses 12(4) and 13(7) to
the successor Agent hereunder; and
(b) shall be entitled to the payment by the Issuers or the Guarantor of
its commissions, fees and expenses for the services therefore
rendered hereunder in accordance with the terms of clause 16.
(9) Upon its appointment becoming effective, a successor Agent and any new
Paying Agent shall, without further act, deed or conveyance, become
vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of its predecessor or, as the case may be, a Paying Agent
with like effect as if originally named as Agent or (as the case may be)
a Paying Agent hereunder.
22. MERGER AND CONSOLIDATION
Any corporation into which the Agent or any other Paying Agent may be
merged or converted, or any corporation with which the Agent or any of
the other Paying Agents may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Agent or any of
the other Paying Agents shall be a party, or any corporation to which the
Agent or any of the other Paying Agents shall sell or otherwise transfer
all or
25
substantially all the assets of the Agent or any other Paying Agent
shall, on the date when such merger, conversion, consolidation or
transfer becomes effective and to the extent permitted by any applicable
laws, become the successor Agent or, as the case may be, other Paying
Agent under this Agreement without the execution or filing of any paper
or any further act on the part of the parties hereto, unless otherwise
required by the Issuers and the Guarantor, and after the said effective
date all references in this Agreement to the Agent or, as the case may
be, such other Paying Agent shall be deemed to be references to such
corporation. Written notice of any such merger, conversion, consolidation
or transfer shall forthwith be given to each Issuer and the Guarantor by
the relevant Agent or other Paying Agent.
23. NOTIFICATION OF CHANGES TO PAYING AGENTS
Following receipt of notice of resignation from the Agent or any other
Paying Agent and forthwith upon appointing a successor Agent or, as the
case may be, further or other Paying Agents or on giving notice to
terminate the appointment of any Agent or, as the case may be, other
Paying Agent, the Agent (on behalf of and at the expense of the Issuers
and the Guarantor) shall give or cause to be given not more than 45 days'
nor less than 30 days' notice thereof to the Noteholders in accordance
with the Conditions.
24. CHANGE OF SPECIFIED OFFICE
If the Agent or any other Paying Agent determines to change its specified
office it shall give to the Issuers, the Guarantor and (if applicable)
the Agent written notice of such determination giving the address of the
new specified office which shall be in the same city and stating the date
on which such change is to take effect, which shall not be less than 45
days thereafter. The Agent (on behalf and at the expense of the Issuers
and the Guarantor) shall within 15 days of receipt of such notice (unless
the appointment of the Agent or the other relevant Paying Agent, as the
case may be, is to terminate pursuant to clause 21 on or prior to the
date of such change) give or cause to be given not more than 45 days' nor
less than 30 days' notice thereof to the Noteholders in accordance with
the Conditions.
25. NOTICES
(1) Any notice or communication given hereunder shall be sufficiently given
or served:
(a) if delivered in person to the relevant address specified on the
signature pages hereof or such other address as may be notified by
the recipient in accordance with this clause and, if so delivered,
shall be deemed to have been delivered at time of receipt; or
(b) if sent by facsimile to the relevant number specified on the
signature pages hereof or such other number as may be notified by
the recipient in accordance with this clause and, if so sent, shall
be deemed to have been delivered when an acknowledgement of receipt
is received.
Where a communication is received after 5 p.m. local time in the place to
which the communication is addressed it shall be deemed to be received
and become effective on the next business day.
26
(2) A copy of any notice served in accordance with subclause (1) above on an
Issuer shall be given to the Guarantor at:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telefax: 41 61 636 6828
Attention: Group Treasurer
26. TAXES AND STAMP DUTIES
The Issuers and the Guarantor jointly and severally agree to pay any and
all stamp and other documentary taxes or duties which may be payable in
Germany, the United States of America, the United Kingdom, the Grand
Duchy of Luxembourg, Belgium or Switzerland in connection with the
execution, delivery, performance and enforcement of this Agreement, the
Deed of Covenant or the Deed of Guarantee.
27. CURRENCY INDEMNITY
If, under any applicable law and whether pursuant to a judgment being
made or registered against any Issuers and/or the Guarantor or in the
liquidation, insolvency or analogous process of any Issuer and/or the
Guarantor or for any other reason, any payment under or in connection
with this Agreement is made or falls to be satisfied in a currency (the
"other currency") other than that in which the relevant payment is
expressed to be due (the "required currency") under this Agreement, then,
to the extent that the payment (when converted into the required currency
at the rate of exchange on the date of payment or, if it is not
practicable for the Agent or the relevant other Paying Agent to purchase
the required currency with the other currency on the date of payment, at
the rate of exchange as soon thereafter as it is practicable for it to do
so or, in the case of a liquidation, insolvency or analogous process at
the rate of exchange on the latest date permitted by applicable law for
the determination of liabilities in such liquidation, insolvency or
analogous process) actually received by the Agent or the relevant other
Paying Agent falls short of the amount due under the terms of this
Agreement, the relevant Issuer and the Guarantor each undertakes that it
shall, as a separate and independent obligation, indemnify and hold
harmless the Agent and each other Paying Agent against the amount of such
shortfall. For the purpose of this clause, "rate of exchange" means the
rate at which the Agent or the relevant other Paying Agent is able on the
relevant date to purchase the required currency with the other currency
and shall take into account any premium and other costs of exchange. The
parties hereto understand and agree that in the event that the required
currency is replaced by the Euro after the date hereof, the Euro will not
be considered an "other currency" for the purposes of this clause 27.
28. AMENDMENTS
This Agreement may be amended in writing by agreement between the
Issuers, the Guarantor, the Agent and the other Paying Agents, but
without the consent of any Noteholder, Receiptholder or Couponholder, (i)
for the purpose of curing any ambiguity or of curing, correcting or
supplementing any defective provision contained herein or complying with
mandatory provisions of the law of the jurisdiction in which the Issuer
or Guarantor is incorporated or (ii) in any manner which the parties may
mutually deem
27
necessary or desirable and which shall not be materially prejudicial to
the interests of the Noteholders. The Issuers, the Guarantor and the
Agent may also agree any modification pursuant to Condition 15.
29. DESCRIPTIVE HEADINGS
The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
30. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement, but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
31. GOVERNING LAW AND SUBMISSION TO JURISDICTION
(1) This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
(2) Each party hereto hereby irrevocably agrees, for the exclusive benefit of
the other parties hereto, that the courts of England are to have
jurisdiction to settle any disputes which may arise out of or in
connection with this Agreement and that accordingly any suit, action or
proceedings (together referred to as "Proceedings") arising out of or in
connection with this Agreement may be brought in such courts. Each party
hereto hereby irrevocably waives any objection which it may have now or
hereafter to the laying of the venue of any such Proceedings in any such
court and any claim that any such Proceedings have been brought in an
inconvenient forum and hereby further irrevocably agrees that a judgment
in any such Proceedings brought in the English courts shall be conclusive
and binding upon it and may be enforced in the courts of any other
jurisdiction (subject to the laws of the jurisdiction in which
enforcement is sought). Nothing contained in this clause shall limit any
right to take Proceedings against any party hereto in any other court of
competent jurisdiction (outside the Contracting States as defined in
section 1(3) of the Civil Jurisdiction and Judgments Act 1982), nor shall
the taking of Proceedings in one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction, whether concurrently or
not (subject to the laws of the relevant jurisdictions). Each of CIBA US,
CIBA Germany and the Guarantor each hereby appoints CIBA UK as its agent
for service of process, and undertakes that, in the event of CIBA UK
ceasing so to act or ceasing to be registered in England, it will appoint
another person, as the Agent may approve, as its agent for service of
process in England in respect of any Proceedings. The Replacement Agent
hereby appoints the Agent as its agent for service of process, and
undertakes that, in the event of the Agent ceasing so to act or ceasing
to be registered in England, it will appoint another person, as the
Guarantor may approve, as its agent for service of process in England in
respect of any Proceedings. Nothing herein shall affect the right to
serve process in any other manner permitted by law.
32. COUNTERPARTS
This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the
same instrument.
28
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
APPENDIX A
FORM OF CALCULATION AGENCY AGREEMENT
Dated [ ], 2[ ]
[CIBA SPECIALTY CHEMICALS PLC/
CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
as Issuer
- and -
CIBA SPECIALTY CHEMICALS HOLDING INC.
as Guarantor
U.S. $2,000,000,000
EURO MEDIUM TERM NOTE PROGRAM
_____________________________________
CALCULATION AGENCY AGREEMENT
_____________________________________
▇▇▇▇▇ & ▇▇▇▇▇
London
30
CALCULATION AGENCY AGREEMENT
in respect of a
EURO MEDIUM TERM NOTE PROGRAM
THIS AGREEMENT is made on [ ], 2[ ] BETWEEN:
(1) [CIBA SPECIALTY CHEMICALS CORPORATION of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, United States/CIBA SPECIALTY CHEMICALS
PLC of ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ 2NX/CIBA
SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH of Chemiestrasse D-68623
Lampertheim, Germany] (the "Issuer");
(2) CIBA SPECIALTY CHEMICALS HOLDING INC. of ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the "Guarantor"); and
(3) [.....] of [.....] (the "Calculation Agent", which expression shall
include its successor or successors for the time being as calculation
agent hereunder).
WHEREAS:
(A) The Issuer, the Guarantor and certain other subsidiaries of the Guarantor
have entered into an amended and restated program agreement with the
Dealers named therein dated o March, 2001 under which the Issuer and such
other subsidiaries may issue Euro Medium Term Notes ("Notes").
(B) The Notes will be issued subject to and with the benefit of an amended
and restated agency agreement (the "Agency Agreement") dated 30th March,
2001 and entered into between the Issuer, the Guarantor, such other
subsidiaries, The Chase Manhattan Bank as Agent (the "Agent" which
expression shall include its successor or successors for the time being
under the Agency Agreement) and the other parties named therein.
NOW IT IS HEREBY AGREED that:
1. APPOINTMENT OF THE CALCULATION AGENT
The Issuer and the Guarantor hereby appoint [................] as
Calculation Agent in respect of each Series of Notes described in the
Schedule hereto (the "Relevant Notes") for the purposes set out in clause
2 below, all upon the provisions hereinafter set out. The agreement of
the parties hereto that this Agreement is to apply to each Series of
Relevant Notes shall be evidenced by the manuscript annotation and
signature in counterpart of the Schedule hereto.
2. DUTIES OF CALCULATION AGENT
The Calculation Agent shall in relation to each Series of Relevant Notes
perform all the functions and duties imposed on the Calculation Agent by
the terms and conditions of the Relevant Notes (the "Conditions")
including endorsing the Schedule hereto appropriately in relation to each
Series of Relevant Notes.
31
3. EXPENSES
Save as provided in clause 4 below, the Calculation Agent shall bear all
expenses incurred by it in connection with its said services.
4. INDEMNITY
(1) The Issuer and the Guarantor shall jointly and severally indemnify and
keep indemnified the Calculation Agent, its directors, officers,
employees and agents against any losses, liabilities, claims, actions or
demands and any reasonable out-of-pocket costs and expenses which it may
incur or which may be made against it by third parties as a result of or
in connection with its appointment or the exercise of its powers and
duties under this Agreement except such as may result from its own
default, negligence or bad faith or that of its officers, directors,
employees or agents or the breach by it of the terms of this Agreement.
The Issuer and the Guarantor must be notified immediately of such claims,
actions or demands and be invited and permitted to participate in the
defence thereof.
(2) The Calculation Agent shall indemnify each of the Issuer and the
Guarantor and each of their officers, directors, employees and agents
against any losses, liabilities, claims, actions or demands and any
reasonable out-of-pocket costs and expenses which it may incur or which
may be made against it as a direct result of the breach by the
Calculation Agent of the terms of this Agreement or its default,
negligence or bad faith or that its agents, officers, directors or
employees. The Calculation Agent must be notified immediately of such
claims, actions or demands and be invited and permitted to participate in
the defence thereof.
5. CONDITIONS OF APPOINTMENT
(1) In acting hereunder and in connection with the Relevant Notes the
Calculation Agent shall act as agent of the Issuer and the Guarantor and
shall not thereby assume any obligations towards or relationship of
agency or trust for or with any of the owners or holders of the Relevant
Notes or the receipts or coupons (if any) appertaining thereto (the
"Receipts" and the "Coupons", respectively).
(2) In relation to each issue of Relevant Notes the Calculation Agent shall
be obliged to perform such duties and only such duties as are herein and
in the Conditions specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Conditions against
the Calculation Agent, other than the duty to act honestly and in good
faith and to exercise the diligence of a reasonably prudent agent in
comparable circumstances.
(3) The Calculation Agent may consult with legal and other professional
advisers and the written opinion of such advisers shall be full and
complete protection in respect of any action taken, omitted or suffered
hereunder in good faith and in accordance with the opinion of such
advisers.
(4) The Calculation Agent shall be protected and shall incur no liability for
or in respect of any action taken, omitted or suffered in reliance upon
any instruction, request or order from the Issuer or the Guarantor or any
notice, resolution, direction, consent, certificate, affidavit,
statement, cable, telex or other paper or document which it reasonably
believes to be genuine and to have been delivered, signed or sent by the
proper party or parties or upon written instructions from the Issuer or
the Guarantor.
32
(5) The Calculation Agent and any of its officers, directors and employees
may become the owner of, or acquire any interest in, any Notes, Receipts
or Coupons (if any) with the same rights that it or he would have if the
Calculation Agent were not appointed hereunder, and may engage or be
interested in any financial or other transaction with the Issuer or the
Guarantor and may act on, or as depositary, trustee or agent for, any
committee or body of holders of Notes or Coupons (if any) or in
connection with any other obligations of the Issuer or the Guarantor as
freely as if the Calculation Agent were not appointed hereunder.
6. TERMINATION OF APPOINTMENT
(1) The Issuer and the Guarantor may terminate the appointment of the
Calculation Agent at any time by giving to the Calculation Agent at least
45 days' prior written notice to that effect, provided that, so long as
any of the Relevant Notes is outstanding:
(a) such notice shall not expire less than 45 days before any date upon
which any payment is due in respect of any Relevant Notes; and
(b) notice shall be given in accordance with the Conditions to the
holders of the Relevant Notes at least 30 days prior to any removal
of the Calculation Agent.
(2) Notwithstanding the provisions of sub-clause (1) above, if at any time:
(a) the Calculation Agent becomes incapable of acting, or is adjudged
bankrupt or insolvent, or files a voluntary petition in bankruptcy
or makes an assignment for the benefit of its creditors or consents
to the appointment of an administrator, liquidator or administrative
or other receiver of all or any substantial part of its property, or
it admits in writing its inability to pay or meet its debts as they
may mature or suspends payment thereof, or if any order of any court
is entered approving any petition filed by or against it under the
provisions of any applicable bankruptcy or insolvency law or if a
receiver of it or of all or a substantial part of its property is
appointed or if any officer takes charge or control of the
Calculation Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation; or
(b) the Calculation Agent fails duly to perform any function or duty
imposed upon it by the Conditions and this Agreement,
the Issuer and the Guarantor may forthwith without notice terminate the
appointment of the Calculation Agent, in which event notice thereof shall
be given to the holders of the Relevant Notes in accordance with the
Conditions as soon as practicable thereafter.
(3) The termination of the appointment pursuant to sub-clause (1) or (2)
above of the Calculation Agent hereunder shall not entitle the
Calculation Agent to any amount by way of compensation but shall be
without prejudice to any amount then accrued due.
(4) The Calculation Agent may resign its appointment hereunder at any time by
giving to the Issuer and the Guarantor at least 90 days' prior written
notice to that effect. Following receipt of a notice of resignation from
the Calculation Agent, the Issuer or the Guarantor shall promptly give
notice thereof to the holders of the Relevant Notes in accordance with
the Conditions.
33
(5) Notwithstanding the provisions of sub-clauses (1), (2) and (4) above, so
long as any of the Relevant Notes is outstanding, the termination of the
appointment of the Calculation Agent (whether by the Issuer, the
Guarantor or by the resignation of the Calculation Agent) shall not be
effective unless upon the expiry of the relevant notice a successor
Calculation Agent has been appointed.
(6) Any successor Calculation Agent appointed hereunder shall execute and
deliver to its predecessor, the Issuer and the Guarantor an instrument
accepting such appointment hereunder, and thereupon such a successor
Calculation Agent, without further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if originally
named as the Calculation Agent hereunder.
(7) If the appointment of the Calculation Agent hereunder is terminated
(whether by the Issuer and the Guarantor or by the resignation of the
Calculation Agent), the Calculation Agent shall on the date on which such
termination takes effect deliver to the successor Calculation Agent any
records concerning the Relevant Notes maintained by it (and copies of
such documents and records as it is obliged by law or regulation to
retain but except such documents it is required by law not to release),
but shall have no other duties or responsibilities hereunder.
(8) Any corporation into which the Calculation Agent may be merged or
converted, or any corporation with which the Calculation Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Calculation Agent shall be a party, or any
corporation to which the Calculation Agent shall sell or otherwise
transfer all or substantially all of its assets shall, on the date when
such merger, consolidation or transfer becomes effective and to the
extent permitted by any applicable laws, become the successor Calculation
Agent under this Agreement without the execution or filing of any paper
or any further act on the part of any of the parties hereto, unless
otherwise required by the Issuer and the Guarantor, and after the said
effective date all references in this Agreement to the Calculation Agent
shall be deemed to be references to such corporation. Written notice of
any such merger, conversion, consolidation or transfer shall forthwith be
given to the Issuer, the Guarantor and the Agent.
(9) Upon giving notice of the intended termination of the appointment of the
Calculation Agent, the Issuer and the Guarantor shall use all reasonable
endeavours to appoint a further financial institution of good standing as
successor Calculation Agent.
7. NOTICES
Any notice or communication given hereunder shall be sufficiently given
or served:
(a) if delivered in person to the relevant address specified on the
signature pages hereof or such other address as may be notified by
the recipient in accordance with this clause and, if so delivered,
shall be deemed to have been delivered at time of receipt; or
(b) if sent by facsimile to the relevant number specified on the
signature pages hereof or such other number as may be notified by
the recipient in accordance with this clause and, if so sent, shall
be deemed to have been delivered when an acknowledgement of receipt
is received (in the case of facsimile).
34
Where a communication is received after 5 p.m. local time in the place to
which the communication is addressed it shall be deemed to be received
and become effective on the next business day.
8. DESCRIPTIVE HEADINGS AND COUNTERPARTS
(1) The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
(2) This Agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same agreement and
any party may enter into this Agreement by executing a counterpart.
9. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement, but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
10. GOVERNING LAW AND SUBMISSION TO JURISDICTION
(1) This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
(2) Each party hereto hereby irrevocably agrees, for the exclusive benefit of
the other parties hereto, that the courts of England are to have
jurisdiction to settle any disputes which may arise out of or in
connection with this Agreement and that accordingly any suit, action or
proceedings (together referred to as "Proceedings") arising out of or in
connection with this Agreement may be brought in such courts. Each party
hereto hereby irrevocably waives any objection which it may have now or
hereafter to the laying of the venue of any such Proceedings in any such
court and any claim that any such Proceedings have been brought in an
inconvenient forum and hereby further irrevocably agrees that a judgment
in any such Proceedings brought in the English courts shall be conclusive
and binding upon it and may be enforced in the courts of any other
jurisdiction (subject to the laws of the jurisdiction in which
enforcement is sought). Nothing contained in this clause shall limit any
right to take Proceedings against any party in any other court of
competent jurisdiction (outside the Contracting States, as defined in
section 1(3) of the Civil Jurisdiction and Judgments Act 1982), nor shall
the taking of Proceedings in one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction, whether concurrently or
not (subject to the laws of the relevant jurisdictions). The [Issuer and
the] Guarantor [each] hereby appoints the [Issuer/CIBA Specialty
Chemicals PLC] as its agent for service of process, and undertakes that,
in the event of [the Issuer/CIBA Specialty Chemicals PLC] ceasing so to
act or ceasing to be registered in England, it will appoint another
person, as the Calculation Agent may approve, as its agent for the
service of process in England in respect of any Proceedings. [The
Calculation Agent hereby appoints [ ] as its agent for service of
process, and undertakes that, in the event of [ ] ceasing so to act or
ceasing to be registered in England, it will appoint another person, as
the relevant Issuer or the Guarantor may approve, as its agent for
service of process in England in respect of any Proceedings]. Nothing
herein shall affect the right to serve process in any manner permitted by
law.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
35
36
SCHEDULE TO THE CALCULATION AGENCY AGREEMENT
Series number Issue Date Maturity Date Title and Annotation by
Nominal Calculation
Amount Agent/Issuer
37
Issuer
[CIBA SPECIALTY CHEMICALS CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: 001 914 785 2650
Attention: Treasurer]/
[CIBA SPECIALTY CHEMICALS PLC
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇
Telefax: 44 1 625 888 380
Attention: Treasurer]/
[CIBA SPEZIALITATENCHEMIE HOLDING ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telephone: ▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Telefax: 00 49 6206 152 816
Attention: Treasurer]
By:
Guarantor
CIBA SPECIALTY CHEMICALS HOLDING INC.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telefax No: 00 41 61 636 6828
Attention: Group Treasurer
By: By:
38
Calculation Agent
[
]
Telephone: [ ]
Telefax No: [ ]
Attention: [ ]
Without prejudice to the foregoing execution of the Agreement by the parties
hereto, [Name of Luxembourg incorporated Calculation Agent] hereby expressly
and specifically confirms its agreement with the provisions of clause 9(2)
hereof for the purposes of Article 1 of the Protocol annexed to the Convention
on jurisdiction and the enforcement of judgments in civil and commercial
matters signed at Brussels on 27th September, 1968.
[Name of Luxembourg incorporated Calculation Agent]
By:
39
SCHEDULE 1
TERMS AND CONDITIONS OF THE NOTES
60
AGENT
The Chase Manhattan Bank
Trinity Tower
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
PAYING AGENT
Chase Manhattan Bank Luxembourg S.A.
▇ ▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
and/or such other or further Agent and other or further Paying Agents and/or
specified offices as may from time to time be duly appointed by the Issuer and
the Guarantor and notice of which has been given to the Noteholders.
61
SCHEDULE 2
FORMS OF GLOBAL AND DEFINITIVE NOTES, RECEIPTS,
COUPONS AND TALONS
PART I
FORM OF TEMPORARY GLOBAL NOTE
THIS GLOBAL NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO OR FOR THE
BENEFIT OF U.S. PERSONS OTHER THAN PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS
NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN
SECTION 6049(B)(4) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES AND THE
REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED
STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(B)(4)
OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).]
[ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE
UNITED STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]2
[THIS NOTE CONSTITUTES [[COMMERCIAL PAPER]/[A SHORTER/LONGER] TERM DEBT
SECURITY]3 ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF THE
BANKING ▇▇▇ ▇▇▇▇. THE ISSUER OF THIS NOTE IS [CIBA SPECIALTY CHEMICALS
CORPORATION/CIBA SPECIALTY CHEMICALS PLC/CIBA SPEZIALITATENCHEMIE HOLDING
DEUTSCHLAND GMBH]4, WHICH IS NOT AN AUTHORISED INSTITUTION OR A EUROPEAN
AUTHORISED INSTITUTION (AS SUCH TERMS ARE DEFINED IN THE BANKING ▇▇▇ ▇▇▇▇
(EXEMPT TRANSACTIONS) REGULATIONS 1997). REPAYMENT OF THE PRINCIPAL AND
PAYMENT OF ANY INTEREST OR PREMIUM IN CONNECTION WITH THIS NOTE HAS BEEN
GUARANTEED BY CIBA SPECIALTY CHEMICALS HOLDING INC. WHICH IS NEITHER AN
AUTHORISED INSTITUTION NOR A EUROPEAN AUTHORISED INSTITUTION.]5
---------------
1 This legend to appear on Notes issued by Ciba Specialty Chemicals
Corporation with a maturity of 183 days or less.
2 This legend to appear on all Notes with a maturity of more than 183 days.
3 Include "commercial paper" if maturity of Notes is less than one year.
Include "shorter" if maturity of Notes is ne year or more, but less than
3 years. Include "longer" if maturity of Notes is 3 years of more.
4 Delete as applicable.
5 Delete except (a) where the Notes are denominated in Sterling or (b) the
net proceeds of the issue of the Notes are accepted in the United
Kingdom.
62
[CIBA SPECIALTY CHEMICALS CORPORATION (a
company incorporated under the laws of the State of Delaware, U.S.A.)/
CIBA SPECIALTY CHEMICALS PLC
(a company incorporated with limited liability in England)/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
(a company incorporated with limited liability in Germany)]
unconditionally and irrevocably guaranteed by
CIBA SPECIALTY CHEMICALS HOLDING INC.
(a company incorporated with limited liability in Switzerland)
TEMPORARY GLOBAL NOTE
This Global Note is a Temporary Global Note in respect of a duly authorised
issue of Euro Medium Term Notes (the "Notes") of [Ciba Specialty Chemicals
Corporation/Ciba Specialty Chemicals PLC/Ciba Spezialitatenchemie Holding
Deutschland GmbH] (the "Issuer") described, and having the provisions
specified, in the Pricing Supplement attached hereto (the "Pricing
Supplement"). Payments in respect of the Notes have been unconditionally and
irrevocably guaranteed by Ciba Specialty Chemicals Holding Inc. (the
"Guarantor"). References herein to the Conditions shall be to the Terms and
Conditions of the Notes as set out in Schedule 1 to the Agency Agreement (as
defined below) as modified and supplemented by the information set out in the
Pricing Supplement, but in the event of any conflict between the provisions of
that Schedule and the information set out in the Pricing Supplement, the
Pricing Supplement will prevail.
Words and expressions defined or set out in the Conditions and/or the Pricing
Supplement shall bear the same meaning when used herein.
This Global Note is issued subject to, and with the benefit of, the Conditions
and an amended and restated Agency Agreement (the "Agency Agreement", which
expression shall be construed as a reference to that agreement as the same may
be amended, supplemented or restated from time to time) dated 30th March, 2001
and made between, inter alia, the Issuer, the Guarantor, The Chase Manhattan
Bank (the "Agent") and the other agents named therein.
For value received the Issuer, subject to and in accordance with the
Conditions, promises to pay to the bearer hereof on each Instalment Date (if
the Notes are repayable in instalments) and on the Maturity Date and/or on
such earlier date(s) as all or any of the Notes represented by this Global
Note may become due and repayable in accordance with the Conditions, the
amount payable under the Conditions in respect of such Notes on each such date
and to pay interest (if any) on the nominal amount of the Notes from time to
time represented by this Global Note calculated and payable as provided in the
Conditions together with any other sums payable under the Conditions, upon
presentation and, at maturity, surrender of this Global Note at the office of
the Agent at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at the
specified office of any of the other paying agents located outside the United
States (except as provided in the Conditions) from time to time appointed by
the Issuer and the Guarantor in respect of the Notes, but in each case subject
to the requirements as to certification provided herein. On any redemption or
payment of an instalment or interest being made in respect of, or purchase and
cancellation of, any of the Notes represented by this Global Note details of
such redemption, payment or purchase and cancellation (as the case may
63
be) shall be entered by or on behalf of the Issuer in Schedule One hereto and
the relevant space in Schedule One hereto recording any such redemption,
payment or purchase and cancellation (as the case may be) shall be signed by
or on behalf of the Issuer.
Upon any such redemption, payment of an instalment or purchase and
cancellation, as aforesaid, the nominal amount of the Notes represented by
this Global Note shall be reduced by the nominal amount of such Notes so
redeemed or purchased and cancelled or the amount of such instalment. The
nominal amount of the Notes represented by this Global Note following any such
redemption, payment of an instalment or purchase and cancellation as aforesaid
or any exchange as referred to below shall be the nominal amount most recently
entered by or on behalf of the Issuer in the relevant column in Part II, III
or IV of Schedule One or Schedule Two hereto.
Prior to the Exchange Date (as defined below), all payments (if any) on this
Global Note will only be made to the bearer hereof to the extent that there is
presented to the Agent by Clearstream, Luxembourg or Euroclear a certificate,
substantially in the form set out in Schedule Three hereto, to the effect that
it has received from or in respect of a person entitled to a particular
nominal amount of the Notes (as shown by its records) a certificate in or
substantially in the form of Certificate "A" as set out in Schedule Three
hereto. The bearer of this Global Note will not be entitled to receive any
payment of interest hereon due on or after the Exchange Date unless upon due
certification exchange of this Global Note is improperly withheld or refused.
On or after the date (the "Exchange Date") which is 40 days after the later of
the Issue Date and completion of the distribution of the Tranche of Notes
represented by this Global Note or such later date specified in the Pricing
Supplement, this Global Note may be exchanged in whole or in part (free of
charge) for, as specified in the Pricing Supplement, either security printed
Definitive Notes and (if applicable) Coupons, Receipts and Talons in the form
set out in Parts III, IV, V and VI respectively of Schedule 2 to the Agency
Agreement (on the basis that all the appropriate details have been included on
the face of such Definitive Notes and (if applicable) Coupons, Receipts and
Talons and the Pricing Supplement (or the relevant provisions of the Pricing
Supplement) have been either endorsed on or attached to such Definitive Notes)
or a Permanent Global Note in or substantially in the form set out in Part II
of Schedule 2 to the Agency Agreement (together with the Pricing Supplement
attached thereto) upon notice being given by Euroclear and/or Clearstream,
Luxembourg acting on the instructions of any holder of an interest in this
Global Note and subject, in the case of Definitive Notes, to such notice
period as is specified in the Pricing Supplement.
If Definitive Notes and (if applicable) Coupons, Receipts and/or Talons have
already been issued in exchange for all the Notes represented for the time
being by the Permanent Global Note, then this Global Note may only thereafter
be exchanged for Definitive Notes and (if applicable) Coupons, Receipts and/or
Talons pursuant to the terms hereof.
Presentation of this Global Note for exchange shall be made by the bearer
hereof on any day (other than a Saturday or Sunday) on which banks are open
for business in London at the office of the Agent specified above. The Issuer
shall procure that the Definitive Notes or (as the case may be) the Permanent
Global Note shall be so issued and delivered in exchange for only that portion
of this Global Note in respect of which there shall have been presented to the
Agent by Euroclear or Clearstream, Luxembourg a certificate, substantially in
the form set out in Schedule Three hereto, to the effect that it has received
from or in respect of a person entitled to a beneficial interest in a
particular nominal amount of the Notes (as shown by its records) a certificate
from such person in or substantially in the form of Certificate "A" as set out
in Schedule Three hereto.
64
On an exchange of the whole of this Global Note, this Global Note shall be
surrendered to the Agent. On an exchange of part only of this Global Note,
details of such exchange shall be entered by or on behalf of the Issuer in
Schedule Two hereto and the relevant space in Schedule Two hereto recording
such exchange shall be signed by or on behalf of the Issuer, whereupon the
nominal amount of this Global Note and the Notes represented by this Global
Note shall be reduced by the nominal amount so exchanged. On any exchange of
this Global Note for a Permanent Global Note, details of such exchange shall
be entered by or on behalf of the Issuer in Schedule Two to the Permanent
Global Note and the relevant space in Schedule Two thereto recording such
exchange shall be signed by or on behalf of the Issuer.
Until the exchange of the whole of this Global Note as aforesaid, the bearer
hereof shall in all respects (except as otherwise provided herein) be entitled
to the same benefits as if he were the bearer of Definitive Notes and the
relative Coupons, Receipts and/or Talons (if any) in the forms set out in
Parts III, Part IV, Part V and Part VI, respectively, of Schedule 2 to the
Agency Agreement.
In the event that this Global Note (or any part hereof) has become due and
repayable in accordance with the Conditions or that the Maturity Date has
occurred and, in either case, payment in full of the amount due has not been
made to the bearer in accordance with the foregoing then, unless within the
period of fifteen days commencing on the relevant due date payment in full of
the amount due in respect of this Global Note is received by the bearer in
accordance with the foregoing, this Global Note will become void at 8.00 p.m.
(London time) on such fifteenth day and the bearer will have no further rights
under this Global Note (but without prejudice to the rights which the bearer
or any other person may have under the amended and restated Deed of Covenant
executed, inter alia, by the Issuer on 30th March, 2001 in respect of the Euro
Medium Term Notes issued under the Program Agreement pursuant to which this
Global Note is issued).
No rights are conferred on any person under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Global Note, but this does not
affect any right or remedy of any person which exists or is available apart
from that Act.
This Global Note is governed by, and shall be construed in accordance with,
English law.
This Global Note shall not be valid unless authenticated by the Agent.
IN WITNESS whereof the Issuer has caused this Global Note to be duly executed
on its behalf.
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
By: .............................
Authorised Signatory
Authenticated without recourse,
warranty or liability by
THE CHASE MANHATTAN BANK
By: ..........................
Authorised Signatory
65
Schedule One to the Temporary Global Note
PART I
INTEREST PAYMENTS
Total amount
Date of interest Amount of Confirmation of payment
made payable interest paid on behalf of the Issuer
--------- -------------- ---------------- --------------------------
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66
PART II
PAYMENT OF INSTALMENT AMOUNTS
Total amount Remaining nominal Confirmation of
of Installment Amount of amount of this payment on
Date Amounts Instalment Global Note following behalf of
made payable Amounts paid such payment* the Issuer
----- -------------- ------------ --------------------- ----------------
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-----------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule
Two in order to determine this amount.
67
PART III
REDEMPTIONS
Remaining nominal Confirmation of
Total amount Amount of amount of this redemption on
Date principal principal Global Note following behalf of
made payable paid such redemption* the Issuer
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-----------------
* See most recent entry in Part II, III or IV of Schedule Two in order to
determine this amount.
68
PART IV
PURCHASES AND CANCELLATIONS
Part of Remaining nominal
nominal amount amount of this Confirmation of
of this Global Global Note purchase and
Date Note purchased following such purchase cancellation on behalf
made and cancelled and cancellation* of the Issuer
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-----------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule
Two in order to determine this amount.
69
Schedule Two to the Temporary Global Note
EXCHANGES
FOR DEFINITIVE NOTES OR PERMANENT GLOBAL NOTE
The following exchanges of a part of this Global Note for Definitive Notes or
a Permanent Global Note have been made:
Nominal amount of this Remaining nominal
Global Note exchanged amount of this Global Notation made on
Date for Definitive Notes or Note following such behalf of the
made a Permanent Global Note exchange* Issuer
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________________________
* See most recent entry in Part II, III or IV of Schedule One or Schedule
Two in order to determine this amount.
70
Schedule Three to the Temporary Global Note
FORM OF CERTIFICATE TO BE PRESENTED BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member
organisations appearing in our records as persons being entitled to a
beneficial interest in a portion of the principal amount set forth below (our
"Member Organisations") substantially to the effect set forth in the Agency
Agreement, as of the date hereof, [ ] principal amount of the above-captioned
Securities (i) is owned by persons that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States persons"), (ii) is owned by United
States persons that (a) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Sections
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution has agreed, on its
own behalf or through its agent, that we may advise the Issuer or the Issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institutions for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that United States or foreign financial institutions described
in clause (iii) above (whether or not also described in clause (i) or (ii))
have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction; and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended (the "Act") then
this is also to certify with respect to such principal amount of Securities
set forth above that, except as set forth below, we have received in writing,
by tested telex or by electronic transmission, from our Member Organisations
entitled to a portion of such principal amount, certifications with respect to
such portion, substantially to the effect that the Securities are beneficially
owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased the
Securities in transactions which did not require registration under the Act.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global Security excepted in
71
such certifications and (ii) that as of the date hereof we have not received
any notification from any of our Member Organisations to the effect that the
statements made by such Member Organisations with respect to any portion of
the part submitted herewith for exchange (or, if relevant, exercise of any
rights or collection of any interest) are no longer true and cannot be relied
upon as the date hereof.
We understand that this certification is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be
relevant, we irrevocably authorise you to produce this certification to any
interested party in such proceedings.
Dated: [ ], 2[ ]*
Yours faithfully,
[Euroclear Bank S.A./N.V.
as operator of the Euroclear
System]
or
[Clearstream Banking, societe anonyme]
By:
________________________________________________________________________
* To be dated no earlier than the Exchange Date
72
CERTIFICATE "A"
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that
(a) are foreign branches of United States financial institutions (as defined
in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) acquired
the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or
through its agent, that you may advise the Issuer or the Issuer's agent that
it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition
if the owner of the Securities is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)) this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended (the "Act") then
this is also to certify with respect to such principal amount of Securities
set forth above that, except as set forth below, the Securities are
beneficially owned by (a) a non-U.S. person(s) or (b) a U.S. person(s) who
purchased the Securities in transactions which did not require registration
under the Act. As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction; and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held
by you for our account in accordance with your documented procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to [ ] of such interest in the
above Securities in respect of which we are not able to certify and as to
which we understand exchange and delivery of definitive Securities (or, if
relevant, exercise of any right or collection of any interest) cannot be made
until we do so certify.
73
We understand that this certification is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be
relevant, we irrevocably authorise you to produce this certification to any
interested party in such proceedings.
Dated: [ ], [ ]*
Name of Person Making Certification
By:
__________________________________________________________
* To be dated no earlier than the fifteenth day prior to the Exchange Date.
74
PART II
FORM OF PERMANENT GLOBAL NOTE
THE GLOBAL NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO OR FOR THE
BENEFIT OF U.S. PERSONS OTHER THAN PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS
NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN
SECTION 6049(B)(4) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES AND THE
REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED
STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(B)(4)
OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).]1
[ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE
UNITED STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]2
[THIS NOTE CONSTITUTES [[COMMERCIAL PAPER]/[A SHORTER/LONGER] TERM DEBT
SECURITY]3 ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF THE
BANKING ▇▇▇ ▇▇▇▇. THE ISSUER OF THIS NOTE IS [CIBA SPECIALTY CHEMICALS
CORPORATION/CIBA SPECIALTY CHEMICALS PLC/CIBA SPEZIALITATENCHEMIE HOLDING
DEUTSCHLAND GMBH]4, WHICH IS NOT AN AUTHORISED INSTITUTION OR A EUROPEAN
AUTHORISED INSTITUTION (AS SUCH TERMS ARE DEFINED IN THE BANKING ▇▇▇ ▇▇▇▇
(EXEMPT TRANSACTIONS) REGULATIONS 1997). REPAYMENT OF THE PRINCIPAL AND
PAYMENT OF ANY INTEREST OR PREMIUM IN CONNECTION WITH THIS NOTE HAS BEEN
GUARANTEED BY CIBA SPECIALTY CHEMICALS HOLDING INC. WHICH IS NEITHER AN
AUTHORISED INSTITUTION NOR A EUROPEAN AUTHORISED INSTITUTION]5.
[CIBA SPECIALTY CHEMICALS CORPORATION.]
(a company incorporated under the laws of the State of Delaware, U.S.A.)/
__________________
1 This legend to appear on Notes issued by Ciba Specialty Chemicals
Corporation with a maturity of 183 days or less.
2 This legend to appear on all Notes with a maturity of more than 183 days.
3 Include "commercial paper" if maturity of Notes is less than one year.
Include "shorter" if maturity of Notes is one year or more, but less than
3 years. Include "longer" if maturity of Notes is 3 years or more.
4 Delete as applicable.
5 Delete except where (a) the Notes are denominated in Sterling or (b) the
net proceeds of the issue of the Notes are accepted in the United
Kingdom.
75
CIBA SPECIALTY CHEMICALS PLC
(a company incorporated with limited liability in England)/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
(a company incorporated with limited liability in Germany)]
unconditionally and irrevocably guaranteed by
CIBA SPECIALTY CHEMICALS HOLDING INC.
(a company incorporated with limited liability in Switzerland)
PERMANENT GLOBAL NOTE
This Global Note is a Permanent Global Note in respect of a duly authorised
issue of Euro Medium Term Notes (the "Notes") of [Ciba Specialty Chemicals
Corporation/Ciba Specialty Chemicals PLC/Ciba Spezialitatenchemie Holding
Deutschland GmbH] (the "Issuer") described, and having the provisions
specified, in the Pricing Supplement or Pricing Supplements attached hereto
(together the "Pricing Supplement"). Payments in respect of the Notes have
been unconditionally and irrevocably guaranteed by Ciba Specialty Chemicals
Holding Inc. (the "Guarantor"). References herein to the Conditions shall be
to the Terms and Conditions of the Notes as set out in Schedule 1 to the
Agency Agreement (as defined below) as modified and supplemented by the
information set out in the Pricing Supplement, but in the event of any
conflict between the provisions of that Schedule and the information set out
in the Pricing Supplement, the Pricing Supplement will prevail.
Words and expressions defined or set out in the Conditions and/or the Pricing
Supplement shall bear the same meaning when used herein.
This Global Note is issued subject to, and with the benefit of, the Conditions
and an amended and restated Agency Agreement (the "Agency Agreement", which
expression shall be construed as a reference to that agreement as the same may
be amended, supplemented or restated from time to time) dated 30th March, 2001
and made between, inter alia, the Issuer, the Guarantor, The Chase Manhattan
Bank (the "Agent") and the other agents named therein.
For value received the Issuer, subject to and in accordance with the
Conditions, promises to pay to the bearer hereof on each Instalment Date (if
the Notes are repayable in instalments) and on the Maturity Date and/or on
such earlier date(s) as all or any of the Notes represented by this Global
Note may become due and repayable in accordance with the Conditions, the
amount payable under the Conditions in respect of such Notes on each such date
and to pay interest (if any) on the nominal amount of the Notes from time to
time represented by this Global Note calculated and payable as provided in the
Conditions together with any other sums payable under the Conditions, upon
presentation and, at maturity, surrender of this Global Note at the office of
the Agent at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at the
specified office of any of the other paying agents located outside the United
States (except as provided in the Conditions) from time to time appointed by
the Issuer and the Guarantor in respect of the Notes. On any redemption or
payment of an instalment or interest being made in respect of, or purchase and
cancellation of, any of the Notes represented by this Global Note details of
such redemption, payment or purchase and cancellation (as the case may be)
shall be entered by or on behalf of the Issuer in Schedule One hereto and the
relevant space in Schedule One hereto recording any such redemption, payment
or purchase and cancellation (as the case may be) shall be signed by or on
behalf of the Issuer.
76
Upon any such redemption, payment of an instalment or purchase and
cancellation as aforesaid, the nominal amount of the Notes represented by this
Global Note shall be reduced by the nominal amount of such Notes so redeemed
or purchased and cancelled or the amount of such instalment. The nominal
amount of the Notes represented by this Global Note following any such
redemption, payment of an instalment or purchase and cancellation as
aforesaid, or any exchange as referred to below shall be the nominal amount
most recently entered by or on behalf of the Issuer in the relevant column in
Part II, III or IV of Schedule One or Schedule Two hereto.
On any exchange of the Temporary Global Note issued in respect of the Notes
for this Global Note or any part hereof, details of such exchange shall be
entered by or on behalf of the Issuer in Schedule Two hereto and the relevant
space in Schedule Two hereto recording such exchange shall be signed by or on
behalf of the Issuer, whereupon the nominal amount of the Notes represented by
this Global Note shall be increased by the nominal amount of the Temporary
Global Note so exchanged.
This Global Note may be exchanged in whole but not in part (free of charge),
for Definitive Notes and (if applicable) Coupons, Receipts and/or Talons in
the form set out in Part III, Part IV, Part V and Part VI respectively, of
Schedule 2 to the Agency Agreement (on the basis that all the appropriate
details have been included on the face of such Definitive Notes and (if
applicable) Coupons, Receipts and Talons and the Pricing Supplement (or the
relevant provisions of the Pricing Supplement) have been endorsed on or
attached to such Definitive Notes) either, as specified in the applicable
Pricing Supplement:
(i) upon not less than 60 days' written notice being given to the Agent by
Euroclear and/or Clearstream, Luxembourg acting on the instructions of
any holder of an interest in this Global Note; or
(ii) only upon the occurrence of any Exchange Event.
An "Exchange Event" means:
(1) an Event of Default has occurred and is continuing;
(2) the Issuer has been notified that either Euroclear or Clearstream,
Luxembourg has been closed for business for a continuous period of
14 days (other than by reason of holiday, statutory or otherwise) or
has announced an intention permanently to cease business or has in
fact done so and no alternative clearing system is available; or
(3) the Issuer has or will become obliged to pay additional amounts as
provided for or referred to in Condition 7 which would not be
required were the Notes represented by this Global Note in
definitive form.
If this Global Note is only exchangeable following the occurrence of an
Exchange Event:
(i) the Issuer will promptly give notice to Noteholders in accordance with
Condition 14 upon the occurrence of an Exchange Event; and
(ii) in the event of the occurrence of any Exchange Event, Euroclear and/or
Clearstream, Luxembourg acting on the instructions of any holder of an
interest in this Global Note may give notice to the Agent requesting
exchange and in the event of the occurrence of an Exchange Event as
described in (3) above, the Issuer may also give notice to the Agent
77
requesting exchange. Any such exchange shall occur no later than 15 days
after the date of receipt of the relevant notice by the Agent.
The first notice requesting exchange in accordance with the above provisions
shall give rise to the issue of Definitive Notes for the total amount of Notes
represented by this Global Note.
Any such exchange as aforesaid will be made upon presentation of this Global
Note at the office of the Agent specified above by the bearer hereof on any
day (other than a Saturday or Sunday) on which banks are open for business in
London. The aggregate nominal amount of Definitive Notes issued upon an
exchange of this Global Note will be equal to the aggregate nominal amount of
this Global Note.
On an exchange of this Global Note, this Global Note shall be surrendered to
the Agent.
Until the exchange of this Global Note as aforesaid, the bearer hereof shall
in all respects (except as otherwise provided herein) be entitled to the same
benefits as if he were the bearer of Definitive Notes and the relative
Coupons, Receipts and/or Talons (if any) in the forms set out in Part III,
Part IV, Part V and Part VI, respectively, of Schedule 2 to the Agency
Agreement.
In the event that this Global Note (or any part hereof) has become due and
repayable in accordance with the Conditions or that the Maturity Date has
occurred and, in either case, payment in full of the amount due has not been
made to the bearer in accordance with the foregoing then, unless within the
period of fifteen days commencing on the relevant due date payment in full of
the amount due in respect of this Global Note is received by the bearer in
accordance with the foregoing, this Global Note will become void at 8.00 p.m.
(London time) on such fifteenth day and the bearer will have no further rights
under this Global Note (but without prejudice to the rights which the bearer
or any other person may have under the amended and restated Deed of Covenant
executed by the Issuer on 30th March, 2001 in respect of the Euro Medium Term
Notes issued under the Program Agreement pursuant to which this Global Note is
issued).
No rights are conferred on any person under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Global Note, but this does not
affect any right or remedy of any person which exists or is available apart
from that Act.
This Global Note is governed by, and shall be construed in accordance with,
English law.
This Global Note shall not be valid unless authenticated by the Agent.
78
IN WITNESS whereof the Issuer has caused this Global Note to be duly executed
on its behalf.
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
By: .........................
Authorised Signatory
Authenticated without recourse,
warranty or liability by
THE CHASE MANHATTAN BANK
By: ..........................
Authorised Signatory
79
Schedule One to the Permanent Global Note
PART I
INTEREST PAYMENTS
Total amount Confirmation of
Date of interest Amount of payment on behalf
made payable interest paid of the Issuer
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80
PART II
PAYMENT OF INSTALMENT AMOUNTS
Total amount Remaining nominal Confirmation of
of Installment Amount of amount of this payment on
Date Amounts Instalment Global Note following behalf of
made payable Amounts paid such payment* the Issuer
----- -------------- ------------ --------------------- ----------------
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-----------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule
Two in order to determine this amount.
81
PART III
REDEMPTIONS
Remaining nominal Confirmation of
Total amount Amount of amount of this redemption on
Date principal principal Global Note following behalf of
made payable paid such redemption* the Issuer
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-----------------
* See most recent entry in Part II, III or IV of Schedule Two in order to
determine this amount.
82
PART IV
PURCHASES AND CANCELLATIONS
Part of Remaining nominal
nominal amount amount of this Confirmation of
of this Global Global Note purchase and
Date Note purchased following such purchase cancellation on behalf
made and cancelled and cancellation* of the Issuer
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-----------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule
Two in order to determine this amount.
83
Schedule Two to the Temporary Global Note
EXCHANGES
FOR DEFINITIVE NOTES OR PERMANENT GLOBAL NOTE
The following exchanges of a part of this Global Note for Definitive Notes or
a Permanent Global Note have been made:
Nominal amount of this Remaining nominal
Global Note exchanged amount of this Global Notation made on
Date for Definitive Notes or Note following such behalf of the
made a Permanent Global Note exchange* Issuer
------ ----------------------- --------------------- ------------------
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________________________
* See most recent entry in Part II, III or IV of Schedule One or in this
Schedule Two in order to determine this amount.
84
PART III
FORM OF DEFINITIVE NOTE
[Face of Note]
_______________________________________________________________________
00 000000 [ISIN] 00 000000
________________________________________________________________________
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO OR FOR THE BENEFIT
OF U.S. PERSONS OTHER THAN PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. TERMS
USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN REGULATION S UNDER THE
SECURITIES ACT.
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS
NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN
SECTION 6049(B)(4) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES AND THE
REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED
STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(B)(4)
OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).]1
[ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE
UNITED STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]2
[THIS NOTE CONSTITUTES [[COMMERCIAL PAPER]/[A SHORTER/LONGER] TERM DEBT
SECURITY]3 ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF THE
BANKING ▇▇▇ ▇▇▇▇. THE ISSUER OF THIS NOTE IS [CIBA SPECIALTY CHEMICALS
CORPORATION/CIBA SPECIALTY CHEMICALS PLC/CIBA SPEZIALITATENCHEMIE HOLDING
DEUTSCHLAND GMBH]4, WHICH IS NOT AN AUTHORISED INSTITUTION OR A EUROPEAN
AUTHORISED INSTITUTION (AS SUCH TERMS ARE DEFINED IN THE BANKING ▇▇▇ ▇▇▇▇
(EXEMPT TRANSACTIONS) REGULATIONS 1997). REPAYMENT OF THE PRINCIPAL AND
PAYMENT OF ANY INTEREST OR PREMIUM IN CONNECTION WITH THIS NOTE HAS BEEN
GUARANTEED BY CIBA SPECIALTY CHEMICALS HOLDING INC. WHICH IS
__________________________
1 This legend to appear on Notes issued by Ciba Specialty Chemicals
Corporation with a maturity of 183 days or less.
2 This legend to appear on all Notes with a maturity of more than 183 days.
3 Include "commercial paper" if maturity of Notes is less than one year.
Include "shorter" if maturity of Notes is one year or more, but less than
3 years. Include "longer" if maturity of Notes is 3 years or more.
4 Delete as applicable.
85
NEITHER AN AUTHORISED INSTITUTION NOR A EUROPEAN AUTHORISED
INSTITUTION]5.
[CIBA SPECIALTY CHEMICALS CORPORATION]
(a company incorporated under the laws of the State of
Delaware, U.S.A.)/
CIBA SPECIALTY CHEMICALS PLC
(a company incorporated with limited liability in England)/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
(a company incorporated with limited liability in Germany)]
unconditionally and irrevocably guaranteed by
CIBA SPECIALTY CHEMICALS HOLDING INC.
(a company incorporated with limited liability in Switzerland)
[Specified Currency and Nominal Amount of Tranche]
EURO MEDIUM TERM NOTES DUE [Year of Maturity]
This Note is one of a duly authorised issue of Euro Medium Term Notes
denominated in the Specified Currency maturing on the Maturity Date (the
"Notes") of [Ciba Specialty Chemicals Corporation/Ciba Specialty Chemicals
PLC/Ciba Spezialitatenchemie Holding Deutschland GmbH.] (the "Issuer").
Payments in respect of the Notes have been unconditionally and irrevocably
guaranteed by Ciba Specialty Chemicals Holding Inc. (the "Guarantor").
References herein to the Conditions shall be to the Terms and Conditions
[endorsed hereon/attached hereto/set out in Schedule 1 to the Agency Agreement
(as defined below) which shall be incorporated by reference herein and have
effect as if set out herein] as modified and supplemented by the Pricing
Supplement (the "Pricing Supplement") (or the relevant provisions of the
Pricing Supplement) endorsed hereon, but in the event of any conflict between
the provisions of the Conditions and the information in the Pricing
Supplement, the Pricing Supplement will prevail.
This Note is issued subject to, and with the benefit of, the Conditions and an
amended and restated Agency Agreement (the "Agency Agreement", which
expression shall be construed as a reference to that agreement as the same may
be amended, supplemented or restated from time to time) dated 30th March, 2001
and made between, inter alia, the Issuer, the Guarantor, The Chase Manhattan
Bank (the "Agent") and the other agents named therein.
For value received, the Issuer, subject to and in accordance with the
Conditions, promises to pay to the bearer hereof [on each Instalment Date and]
on the Maturity Date and/or on such earlier date(s) as this Note may become
due and repayable in accordance with the Conditions, the amount payable under
the Conditions in respect of this Note on each such date and to pay interest
(if any) on this Note calculated and payable as provided in the Conditions
together with any other sums payable under the Conditions.
These Notes shall be governed by, and construed in accordance with, English
law.
____________________
5 Delete except where the Notes are denominated in Sterling or (b) the net
proceeds of the issue of the Notes are accepted in the United Kingdom.
86
This Note shall not be validly issued unless authenticated by the Agent.
87
IN WITNESS whereof the Issuer has caused this Note to be duly executed on its
behalf.
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
By: _____________________
Authorised Signatory
Authenticated without recourse,
warranty or liability by
THE CHASE MANHATTAN BANK
By: _____________________
Authorised Signatory
88
Terms and Conditions
[Terms and Conditions to be as set out in
Schedule 1 to the Agency Agreement]
Pricing Supplement
[Here to be set out text of Pricing Supplement
relating to the Notes]
89
PART IV
FORM OF COUPON
(Face of Coupon)
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[Specified Currency and Nominal Amount Tranche]
NOTES DUE [Year of Maturity]
Series No. [ ]
Part A
[For Fixed Rate Notes:-
This Coupon is payable to bearer, separately Coupon for
negotiable and subject to the Terms and [ ]
Conditions of the said Notes. due on
[ ]
Part B
[For Floating Rate Notes or Indexed Interest Notes:-
Coupon for the amount due in accordance with Coupon due
the Terms and Conditions on the said Notes on in [ ]
the Interest Payment Date falling in
[ ]].
This Coupon is payable to bearer, separately negotiable and subject to such
Terms and Conditions, under which it may become void before its due date.]
THE NOTE PERTAINING HERETO HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO OR FOR
THE BENEFIT OF U.S. PERSONS OTHER THAN PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.
90
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS
NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN
SECTION 6049(B)(4) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES AND THE
REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED
STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(B)(4)
OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).]1
[ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE
UNITED STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS
165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]2
________________________________________________________________________
00 000000 [ISIN] 00 000000
________________________________________________________________________
____________________
1 This legend to appear on Coupons attaching to Notes issued by Ciba
Specialty Chemicals Corporation with a maturity of 183 days or less.
2 This legend to appear on Coupons attaching to Notes issued by Ciba
Specialty Chemicals Corporation with a maturity of 183 days or more and
all other Coupons.
91
(Reverse of Coupon)
AGENT
The Chase Manhattan Bank
Trinity Tower
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
PAYING AGENT
Chase Manhattan Bank Luxembourg S.A.
▇ ▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
and/or such other or further Agent and other or further Paying Agents and/or
specified offices as may from time to time be duly appointed by the Issuer and
the Guarantor and notice of which has been given to the Noteholders.
92
(On the front)
PART V
FORM OF RECEIPT
THE NOTE PERTAINING HERETO HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO OR FOR
THE BENEFIT OF U.S. PERSONS OTHER THAN PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS
NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN
SECTION 6049(B)(4) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES AND THE
REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED
STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(B)(4)
OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).]1
[ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE
UNITED STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]2
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[Specified Currency and Nominal Amount of Tranche]
EURO MEDIUM TERM NOTES DUE [Year of Maturity]
Series No. [ ]
Receipt for the sum of [ ] being the instalment of principal payable in
accordance with the Terms and Conditions endorsed on the Note to which this
Receipt appertains (the "Conditions") on [ ].
This Receipt is issued subject to and in accordance with the Conditions which
shall be binding upon the holder of this Receipt (whether or not it is for the
time being attached to such Note) and is payable at the specified office of
the Agent or any of the Paying Agents set out on the reverse of the Note to
which this Receipt appertains (and/or any other or further Paying Agents
and/or specified offices as may from time to time be duly appointed and
notified to the Noteholders).
__________________
1 This legend to appear on Receipts pertaining to Notes issued by Ciba
Specialty Chemicals Corporation with a maturity of 183 days or less.
2 This legend to appear on Receipts pertaining to Notes issued by Ciba
Specialty Chemicals Corporation with a maturity of 183 days or more and
on all other Receipts.
93
This Receipt must be presented for payment together with the Note to which it
appertains. The Issuer shall have no obligation in respect of any Receipt
presented without the Note to which it appertains or any unmatured Receipts.
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
By:___________________
Authorised Signatory
94
PART VI
FORM OF TALON
THE NOTE PERTAINING HERETO HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO OR FOR
THE BENEFIT OF U.S. PERSONS OTHER THAN PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS
NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN
SECTION 6049(B)(4) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES AND THE
REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED
STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(B)(4)
OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).]1
[ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE
UNITED STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]2
(On the front)
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[Specified Currency and Nominal Amount of Tranche]
EURO MEDIUM TERM NOTES DUE [Year of Maturity]
Series No. [ ]
On and after [ ] further Coupons [and a further Talon] appertaining to the
Note to which this Talon appertains will be issued at the specified office of
the Agent or any of the Paying Agents set out on the reverse hereof (and/or
any other or further Paying Agents and/or specified offices as may from time
to time be duly appointed and notified to the Noteholders) upon production and
surrender of this Talon.
__________________________
1 This legend to appear on Talons pertaining to Notes issued by Ciba
Specialty Chemicals Corporation with a maturity of 183 days or less.
2 This legend to appear on Talons pertaining to Notes issued by Ciba
Specialty Chemicals Corporation with a maturity of 183 days and on all
other Talons.
95
This Talon may, in certain circumstances, become void under the Terms and
Conditions endorsed on the Notes to which this Talon appertains.
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
By: _______________________
Authorised Signatory
96
(Reverse of Receipt and Talon)
AGENT
The Chase Manhattan Bank
Trinity Tower
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
PAYING AGENT
Chase Manhattan Bank Luxembourg S.A.
▇ ▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
and/or such other or further Agent and other or further Paying Agents and/or
specified offices as may from time to time be duly appointed by the Issuer and
the Guarantor and notice of which has been given to the Noteholders.
97
SCHEDULE 3
FORM OF DEED OF GUARANTEE
THIS DEED OF GUARANTEE is made on 30th March, 2001 by CIBA SPECIALTY CHEMICALS
HOLDING INC., (the "Guarantor") in favour of the Relevant Account Holders (as
defined in the Deed of Covenant referred to below) and the holders for the
time being of the Notes (as defined below) and the interest coupons (if any)
appertaining to the Notes ("Coupons"), the Coupons being attached on issue to
Definitive Note(s) (as defined below). Each Relevant Account Holder, each
holder of a Note and each holder of a Coupon is a "Holder".
WHEREAS:
(A) CIBA SPECIALTY CHEMICALS CORPORATION, CIBA SPECIALTY CHEMICALS PLC, CIBA
SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH (the "Issuers" and each an
"Issuer") and the Guarantor have entered into an amended and restated
Program Agreement (the "Program Agreement", which expression includes the
same as it may be amended or supplemented from time to time) dated 30th
March, 2001 with the Dealers named therein, which amends and restates the
amended and restated program agreement entered into by, inter alia, Ciba
Specialty Chemicals Corporation, Ciba Specialty Chemicals PLC and Ciba
Spezialitatenchemie Holding Deutschland GmbH dated 16th June, 2000 (the
"Principal Program Agreement"), under which each Issuer proposes from
time to time to issue Euro Medium Term Notes (the "Notes", such
expression to include each Definitive Note issued by an Issuer and each
Global Note issued by an Issuer (where "Definitive Note" and "Global
Note" have the meanings ascribed thereto in the Agency Agreement defined
below) and to include any receipts issued in respect of Notes repayable
in instalments);
(B) each Issuer has executed a Deed of Covenant of even date (the "Deed of
Covenant") relating to Global Notes issued by that Issuer pursuant to the
Program Agreement;
(C) the Issuers and the Guarantor have entered into an amended and restated
agency agreement (the "Agency Agreement", which expression includes the
same as it may be amended or supplemented from time to time) dated 30th
March, 2001 with the Paying Agents named therein; and
(D) this Deed of Guarantee amends and restates the amended and restated Deed
of Guarantee made by the Guarantor dated 16th June, 2000, and does not
affect any Notes issued pursuant to the Principal Program Agreement prior
to the date hereof.
NOW THIS DEED WITNESSES as follows:
1. Guarantee: The Guarantor irrevocably and unconditionally undertakes to
secure by way of deed poll to each Holder the due and punctual payment as
stipulated in an Issuer's Note or Coupon or under its Deed of Covenant,
as the case may be. The Guarantor therefore undertakes to pay on first
demand of such a Holder, irrespective of the validity and the legal
effects of the above mentioned relationship in respect of a Note or
Coupon or Deed of Covenant and waiving all rights of objection and
defence arising therefrom any amount not paid by the relevant Issuer
(including any premium or any other amounts of whatever nature or
additional amounts) upon receipt of the written request for payment by
such Holder and the confirmation in writing by the Agent that the
relevant Issuer has not made such payments
98
on the dates specified and in the amount called under the Guarantee. The
Guarantor hereby expressly undertakes and secures that payments under
this Guarantee will not be less than as stipulated in an Issuer's Note or
Coupon. In implementation of this undertaking and in case Swiss
withholding taxes are imposed in respect of payments made under this
Guarantee, the Guarantor undertakes, as a separate and independent
obligation, to pay an increased amount on the relevant Note or Coupon so
that the payment received by the Noteholder or Couponholder shall equal
the amount actually stipulated in such Note or Coupon (assuming no such
withholding applies).
2. Guarantor's Obligations Continuing: The Guarantor's obligations under
this Guarantee are and will remain in full force and effect by way of
continuing security until no sum remains payable under any Note, any
Coupon or the Deed of Covenant. Furthermore, these obligations of the
Guarantor are additional to, and not instead of, any security or other
guarantee or indemnity at any time existing in favour of a Holder,
whether from the Guarantor or otherwise. The Guarantor irrevocably waives
all notices and demands whatsoever, except as provided herein.
3. Repayment to the Issuer: If any payment received by a Holder is, on the
subsequent liquidation or insolvency of the relevant Issuer, avoided
under any laws relating to liquidation or insolvency, such payment will
not be considered as having discharged or diminished the liability of the
Guarantor and this Guarantee will continue to apply as if such payment
had at all times remained owing by the relevant Issuer.
4. Status of Guarantee: The payment obligations of the Guarantor under this
Guarantee constitute direct, unconditional and (subject to clause 5
below) unsecured obligations of the Guarantor and (subject as aforesaid)
rank and will rank pari passu with all other outstanding unsecured and
unsubordinated indebtedness and monetary obligations of the Guarantor,
present or future, including those in respect of deposits (other than
obligations preferred by law).
5. Negative Pledge of the Guarantor: So long as any of the Notes remains
outstanding, but not later than the time when payment for the full amount
of principal and interest in respect of all outstanding Notes has been
duly provided for, the Guarantor will procure that no Indebtedness of the
Guarantor which is represented by bonds, notes or other securities which
in any such case are listed or capable of being listed on any recognised
Stock Exchange will be secured upon any of the present or future assets
or revenues of the Guarantor unless all amounts payable under this
Guarantee are secured equally and rateably with such other security or
such other security or guarantee is granted to the Notes and Coupons as
shall have been approved by an Extraordinary Resolution of the
Noteholders. Any reference to an obligation being guaranteed shall
include a reference to an indemnity being given in respect of payment
thereof.
As used herein "Indebtedness" means all indebtedness for money borrowed
that is created, assumed, incurred or guaranteed in any manner by the
Guarantor or for which the Guarantor is otherwise responsible or liable.
6. Tax Gross-up: All payments in respect of the Notes by the Guarantor shall
be made without withholding or deduction for, or on account of, any
present or future taxes, duties, assessments or governmental charges of
whatever nature ("Taxes") imposed or levied by or on behalf of
Switzerland, or any political sub-division of, or any authority in, or
of, Switzerland having power to tax, unless the withholding or deduction
of the Taxes is
99
required by law. In that event, the Guarantor will pay such additional
amounts as may be necessary in order that the net amounts received by the
Noteholders and Couponholders after the withholding or deduction shall
equal the respective amounts which would have been receivable in respect
of the Notes or, as the case may be, Coupons in the absence of the
withholding or deduction; except that no additional amount shall be
payable in relation to any payment in respect of any Note or Coupon:
(i) by or on behalf of a person liable to such tax, duty or charge in
respect of such Note, Receipt or Coupon by reason of his having some
connection with Switzerland other than the mere holding or ownership
of such Note, Receipt or Coupon; and/or
(ii) presented for payment to the relevant Issuer more than 30 days after
the Relevant Date (as defined in Condition 7(f) of the Terms and
Conditions of the relevant Notes) except to the extent that a holder
would have been entitled to additional amounts on presenting the
same for payment on the last day of the period of 30 days; and/or
(iii) to, or to a third party on behalf of, a holder who would be able to
avoid such withholding or deduction by making a declaration of
non-residence or similar claim for exemption but fails to do so;
and/or
(iv) where such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to any European Union
Directive on the taxation of savings implementing the conclusions of
the ECOFIN Council meeting of November 26-27, 2000, or any law
implementing or complying with, or introduced in order to conform
to, such Directive; and/or
(v) presented for payment by or on behalf of a holder who would have
been able to avoid such withholding or deduction by presenting the
relevant Note or Coupon to another Paying Agent in a Member State of
the EU.
7. Power to execute: The Guarantor hereby warrants, represents and covenants
with each Holder that it has all corporate power, and has taken all
necessary corporate or other steps, to enable it to execute, deliver and
perform this Guarantee, and that this Guarantee constitutes a legal,
valid and binding obligation of the Guarantor, enforceable in accordance
with its terms subject to applicable bankruptcy, reorganisation,
insolvency, fraudulent transfer, moratorium and other similar laws
affecting creditor's rights generally from time to time in effect, and to
general principles of equity, regardless of whether considered in a
proceeding in law or at equity.
8. Deposit of Guarantee: This Guarantee shall take effect as a Deed Poll for
the benefit of the Holders from time to time and for the time being. This
Guarantee shall be deposited with and held by The Chase Manhattan Bank
for the benefit of the Holders until all the obligations of the Guarantor
hereunder have been discharged in full.
9. Production of Guarantee: The Guarantor hereby acknowledges the right of
every Holder to the production of, and the right of every Holder to
obtain (upon payment of a reasonable charge) a copy of, this Guarantee,
and further acknowledges and covenants that the obligations binding upon
it contained herein are owed to, and shall be for the account of, each
and every Holder, and that each Holder shall be entitled severally to
enforce the said obligations against the Guarantor.
100
10. Subrogation: Until all amounts which may be payable under the Notes, the
Coupons and/or the Deed of Covenant have been irrevocably paid in full,
the Guarantor shall not exercise any rights of subrogation in respect of
any rights of any Holder or claim in competition with the Holders against
the relevant Issuer.
11. Governing Law and Jurisdiction: This Guarantee is governed by and shall
be construed in accordance with English law. The Guarantor irrevocably
agrees for the benefit of each Holder that the courts of England are to
have jurisdiction to settle any disputes which may arise out of or in
connection with this Guarantee and that accordingly any suit, action or
proceedings arising out of or in connection with this Guarantee (together
referred to as "Proceedings") may be brought in the courts of England.
The Guarantor irrevocably waives any objection which it may have now or
hereafter to the laying of the venue of the Proceedings in the courts of
England and irrevocably agrees that a final judgment in any Proceedings
brought in the courts of England shall be conclusive and binding upon the
Guarantor and may be enforced in the courts of any other jurisdiction.
Nothing contained in this clause shall limit any right to take
Proceedings against the Guarantor in any other court of competent
jurisdiction, nor shall the taking of Proceedings in none or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
No rights are conferred on any person under the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Global Note, but this
does not affect any right or remedy of any person which exists or is
available apart from that Act.
The Guarantor hereby appoints Ciba Specialty Chemicals PLC as its agent
for service of process in England in respect of any Proceedings and
undertakes that in the event of it ceasing so to act it will appoint
another person as its agent for that purpose.
IN WITNESS whereof this Guarantee has been manually executed as a deed poll on
behalf of the Guarantor.
Executed as a deed )
by CIBA SPECIALTY CHEMICALS )
HOLDING INC. )
acting by its attorneys )
and in the presence of: )
Witness's
Signature: ----------------------
Name: ----------------------
Address: ----------------------
----------------------
Dated 30th March, 2001
101
SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
(i) "voting certificate" shall mean an English language certificate
issued by a Paying Agent and dated in which it is stated:
(a) that on the date thereof Notes (not being Notes in respect of
which a block voting instruction has been issued and is
outstanding in respect of the meeting specified in such voting
certificate and any adjourned such meeting) bearing specified
serial numbers were deposited with such Paying Agent or (to the
satisfaction of such Paying Agent) were held to its order or
under its control and that no such Notes will cease to be so
deposited or held until the first to occur of:
(1) the conclusion of the meeting specified in such
certificate or, if applicable, any adjourned such meeting;
and
(2) the surrender of the certificate to the Paying Agent who
issued the same; and
(b) that the bearer thereof is entitled to attend and vote at such
meeting and any adjourned such meeting in respect of the Notes
represented by such certificate;
(ii) "block voting instruction" shall mean an English language document
issued by a Paying Agent and dated in which:
(a) it is certified that Notes (not being Notes in respect of which
a voting certificate has been issued and is outstanding in
respect of the meeting specified in such block voting
instruction and any adjourned such meeting) have been deposited
with such Paying Agent or (to the satisfaction of such Paying
Agent) were held to its order or under its control and that no
such Notes will cease to be so deposited or held until the
first to occur of:
(1) the conclusion of the meeting specified in such document
or, if applicable, any adjourned such meeting; and
(2) the surrender to the Paying Agent not less than 48 hours
before the time for which such meeting or any adjourned
such meeting is convened of the receipt issued by such
Paying Agent in respect of each such deposited Note which
is to be released or (as the case may require) the Note or
Notes ceasing with the agreement of the Paying Agent to be
held to its order or under its control and the giving of
notice by the Paying Agent to the Issuer in accordance
with paragraph 17 hereof of the necessary amendment to the
block voting instruction;
102
(b) it is certified that each holder of such Notes has instructed
such Paying Agent that the vote(s) attributable to the Note or
Notes so deposited or held should be cast in a particular way
in relation to the resolution or resolutions to be put to such
meeting or any adjourned such meeting and that all such
instructions are during the period commencing 48 hours prior to
the time for which such meeting or any adjourned such meeting
is convened and ending at the conclusion or adjournment thereof
neither revocable nor capable of amendment;
(c) the total number and the serial numbers of the Notes so
deposited or held are listed distinguishing with regard to each
such resolution between those in respect of which instructions
have been given as aforesaid that the votes attributable
thereto should be cast in favour of the resolution and those in
respect of which instructions have been so given that the votes
attributable thereto should be cast against the resolution; and
(d) one or more persons named in such document (each hereinafter
called a "proxy") is or are authorised and instructed by such
Paying Agent to cast the votes attributable to the Notes so
listed in accordance with the instructions referred to in
paragraph (c) above as set out in such document.
The holder of any voting certificate or the proxies named in any
block voting instruction shall for all purposes in connection with
the relevant meeting or adjourned meeting of Noteholders be deemed
to be the holder of the Notes to which such voting certificate or
block voting instruction relates and the Paying Agent with which
such Notes have been deposited or the person holding the same to the
order or under the control of such Paying Agent shall be deemed for
such purposes not to be the holder of those Notes.
(iii) References herein to the "Notes" are to the Notes in respect of
which the relevant meeting is convened.
2. The relevant Issuer or the Guarantor may at any time and, upon a
requisition in writing of Noteholders holding not less than five per
cent. in nominal amount of the Notes for the time being outstanding,
shall convene a meeting of the Noteholders and if the relevant Issuer
makes default for a period of seven days in convening such a meeting the
same may be convened by the requisitionists. Whenever the relevant Issuer
or the Guarantor is about to convene any such meeting it shall forthwith
give notice in writing to the Agent and the Dealers of the day, time and
place thereof and of the nature of the business to be transacted thereat.
Every such meeting shall be held at such time and place as the Agent may
approve.
3. At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) specifying the place, day
and hour of meeting shall be given to the Noteholders prior to any
meeting of the Noteholders in the manner provided by Condition 14. Such
notice shall state generally the nature of the business to be transacted
at the meeting thereby convened but (except for an Extraordinary
Resolution) it shall not be necessary to specify in such notice the terms
of any resolution to be proposed. Such notice shall include a statement
to the effect that Notes may be deposited with Paying Agents for the
purpose of obtaining voting certificates or appointing proxies not less
than 24 hours before the time fixed for the meeting or that, in the case
of corporations, they may appoint representatives by resolution of their
directors or other governing body. A copy of the notice
103
shall be sent by post to the Issuer (unless the meeting is convened by
the relevant Issuer) and to the Guarantor (unless the meeting is convened
by the Guarantor).
4. Some person (who may but need not be a Noteholder) nominated in writing
by the relevant Issuer shall be entitled to take the chair at every such
meeting but if no such nomination is made or if at any meeting the person
nominated shall not be present within fifteen minutes after the time
appointed for holding the meeting the Noteholders present shall choose
one of their number to be Chairman.
5. At any such meeting one or more persons present holding Notes or voting
certificates or being proxies and holding or representing in the
aggregate not less than twenty per cent. in nominal amount of the Notes
for the time being outstanding shall (except for the purpose of passing
an Extraordinary Resolution (as defined in paragraph 20 below)) form a
quorum for the transaction of business and no business (other than the
choosing of a Chairman) shall be transacted at any meeting unless the
requisite quorum be present at the commencement of business. The quorum
at any such meeting for passing an Extraordinary Resolution shall
(subject as provided below) be one or more persons present holding Notes
or voting certificates or being proxies and holding or representing in
the aggregate not less than 50 per cent. in nominal amount of the Notes
for the time being outstanding PROVIDED THAT at any meeting the business
of which includes any of the following matters (each of which shall only
be capable of being effected after having been approved by Extraordinary
Resolution) namely:
(i) modification of the Maturity Date of the Notes or reduction or
cancellation of the nominal amount payable upon maturity; or
(ii) reduction or cancellation of the amount payable or modification of
the payment date in respect of any interest in respect of the Notes
or variation of the method of calculating the rate of interest in
respect of the Notes; or
(iii) reduction of any Minimum Interest Rate and/or Maximum Interest Rate
specified in the applicable Pricing Supplement of any Note; or
(iv) modification of the currency in which payments under the Notes
and/or the Receipts and/or Coupons appertaining thereto are to be
made; or
(v) modification of the majority required to pass an Extraordinary
Resolution; or
(vi) the sanctioning of any such scheme or proposal as is described in
paragraph 18(F) below; or
(vii) alteration of this proviso or the proviso to paragraph 6 below;
the quorum shall be one or more persons present holding Notes or voting
certificates or being proxies and holding or representing in the
aggregate not less than 75 per cent. in nominal amount of the Notes for
the time being outstanding. An Extraordinary Resolution passed at any
meeting of the holders of Notes will be binding on all holders of Notes,
whether or not they are present at the meeting, and on all holders of
Coupons appertaining to such Notes.
6. If within fifteen minutes after the time appointed for any such meeting a
quorum is not present the meeting shall if convened upon the requisition of
Noteholders be dissolved. In
104
any other case it shall stand adjourned to the same day in the next week (or
if such day is a public holiday the next succeeding business day) at the same
time and place (except in the case of a meeting at which an Extraordinary
Resolution is to be proposed in which case it shall stand adjourned for such
period being not less than 14 days nor more than 42 days, and at such place as
may be appointed by the Chairman and approved by the Agent) and at such
adjourned meeting one or more persons present holding Notes or voting
certificates or being proxies (whatever the nominal amount of the Notes so
held or represented by them) shall (subject as provided below) form a quorum
and shall (subject as provided below) have power to pass any Extraordinary
Resolution or other resolution and to decide upon all matters which could
properly have been dealt with at the meeting from which the adjournment took
place had the requisite quorum been present PROVIDED THAT at any adjourned
meeting the business of which includes any of the matters specified in the
proviso to paragraph 5 above the quorum shall be one or more persons present
holding Notes or voting certificates or being proxies and holding or
representing in the aggregate not less than a clear majority in nominal amount
of the Notes for the time being outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall (except in cases where the proviso to
paragraph 6 above shall apply when it shall state the relevant quorum)
state that one or more persons present holding Notes or voting
certificates or being proxies at the adjourned meeting whatever the
nominal amount of the Notes held or represented by them will form a
quorum. Subject as aforesaid it shall not be necessary to give any notice
of an adjourned meeting.
8. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the Chairman
shall both on a show of hands and on a poll have a casting vote in
addition to the vote or votes (if any) to which he may be entitled as a
Noteholder or as a holder of a voting certificate or as a proxy.
9. At any meeting, unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman or the relevant
Issuer or by one or more persons present holding Notes or voting
certificates or being proxies (whatever the nominal amount of the Notes
so held by them), a declaration by the Chairman that a resolution has
been carried or carried by a particular majority or lost or not carried
by a particular majority shall be conclusive evidence of the fact without
proof of the number or proportion of the votes recorded in favour of or
against such resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so
demanded it shall be taken in such manner and subject as hereinafter
provided either at once or after an adjournment as the Chairman directs
and the result of such poll shall be deemed to be the resolution of the
meeting at which the poll was demanded as at the date of the taking of
the poll. The demand for a poll shall not prevent the continuance of the
meeting for the transaction of any business other than the motion on
which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any such
meeting adjourn the same from time to time and from place to place but no
business shall be transacted at any adjourned meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the meeting from which the adjournment took place.
105
12. Any poll demanded at any such meeting on the election of a Chairman or on
any question of adjournment shall be taken at the meeting without
adjournment.
13. Any director or officer of the Issuer or the Guarantor and their
respective lawyers may attend and speak at any meeting. Save as
aforesaid, but without prejudice to the proviso to the definition of
"outstanding" in clause 1(2) of this Agreement, no person shall be
entitled to attend and speak nor shall any person be entitled to vote at
any meeting of the Noteholders or join with others in requisitioning the
convening of such a meeting unless he either produces the Note or Notes
of which he is the holder or a voting certificate or is a proxy. None of
the Issuers, the Guarantor nor any of their respective subsidiaries shall
be entitled to vote at any meeting in respect of Notes held by it for the
benefit of any such company and no other person shall be entitled to vote
at any meeting in respect of Notes held by it for the benefit of any such
company. Nothing herein contained shall prevent any of the proxies named
in any block voting instruction from being a director, officer or
representative of or otherwise connected with the Issuer or the
Guarantor.
14. Subject as provided in paragraph 13 hereof at any meeting:
(A) on a show of hands every person who is present in person and
produces a Note or voting certificate or is a proxy shall have one
vote; and
(B) on a poll every person who is so present shall have one vote in
respect of:
(i) in the case of a meeting of the holders of Notes all of which
are denominated in a single currency, each minimum integral
amount of such currency; and
(ii) in the case of a meeting of the holders of Notes denominated in
more than one currency, each U.S.$1.00 or, in the case of a
Note denominated in a currency other than U.S. dollars, the
equivalent of U.S.$1.00 in such currency at the Agent's spot
buying rate for the relevant currency against U.S. dollars at
or about 11.00 a.m. (London time) on the date of publication of
the notice of the relevant meeting (or of the original meeting
of which such meeting is an adjournment),
or such other amount as the Agent shall in its absolute discretion
stipulate in nominal amount of Notes so produced or represented by
the voting certificate so produced or in respect of which he is a
proxy.
Without prejudice to the obligations of the proxies named in any block
voting instruction any person entitled to more than one vote need not use
all his votes or cast all the votes to which he is entitled in the same
way.
15. The proxies named in any block voting instruction need not be
Noteholders.
16. Each block voting instruction together (if so requested by the relevant
Issuer) with proof satisfactory to the relevant Issuer of its due
execution on behalf of the relevant Paying Agent shall be deposited at
such place as the Agent shall approve not less than 24 hours before the
time appointed for holding the meeting or adjourned meeting at which the
proxies named in the block voting instruction propose to vote and in
default the block voting instruction shall not be treated as valid unless
the Chairman of the meeting decides otherwise before such meeting or
adjourned meeting proceeds to business. A certified copy of each block
106
voting instruction shall be deposited with the Agent before the
commencement of the meeting or adjourned meeting but the Agent shall not
thereby be obliged to investigate or be concerned with the validity of or
the authority of the proxies named in any such block voting instruction.
17. Any vote given in accordance with the terms of a block voting instruction
shall be valid notwithstanding the previous revocation or amendment of
the block voting instruction or of any of the Noteholders' instructions
pursuant to which it was executed PROVIDED THAT no intimation in writing
of such revocation or amendment shall have been received from the
relevant Paying Agent by the relevant Issuer at its registered office (or
such other place as may have been approved by the Agent for the purpose)
by the time being 24 hours before the time appointed for holding the
meeting or adjourned meeting at which the block voting instruction is to
be used.
18. A meeting of the Noteholders shall in addition to the powers hereinbefore
given have the following powers exercisable by Extraordinary Resolution
(subject to the provisions relating to quorum contained in paragraphs 5
and 6 above) only, namely:
(A) power to sanction any compromise or arrangement proposed to be made
between the Issuer and the Guarantor and the Noteholders and
Couponholders or any of them;
(B) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Noteholders and
Couponholders against the relevant Issuer and the Guarantor or
against any of its property whether such rights shall arise under
this Agreement, the Notes or the Coupons or otherwise;
(C) power to assent to any modification of the provisions contained in
this Agreement or the Conditions, the Notes, the Coupons, the
Guarantee or the Deed of Covenant which shall be proposed by the
Issuer or the Guarantor;
(D) power to give any authority or sanction which under the provisions
of this Agreement or the Notes is required to be given by
Extraordinary Resolution;
(E) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees any
powers or discretions which the Noteholders could themselves
exercise by Extraordinary Resolution;
(F) power to sanction any scheme or proposal for the exchange or sale of
the Notes for, or the conversion of the Notes into or the
cancellation of the Notes in consideration of, shares, stock, notes,
bonds, debentures, debenture stock and/or other obligations and/or
securities of the Issuer or any other company formed or to be
formed, or for or into or in consideration of cash, or partly for or
into or in consideration of such shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or
securities as aforesaid and partly for or into or in consideration
of cash; and
(G) power to approve the substitution of any entity in place of (i) the
Issuer (or any previous substitute) as the principal debtor in
respect of the Notes and the Coupons or (ii) the Guarantor (or any
previous substitute) as guarantor under the Guarantee.
107
19. Any resolution passed at a meeting of the Noteholders duly convened and
held in accordance with the provision hereof shall be binding upon all
the Noteholders whether present or not present at such meeting and
whether or not voting and upon all Couponholders and Receiptholders and
each of them shall be bound to give effect thereto accordingly and the
passing of any such resolution shall be conclusive evidence that the
circumstances justify the passing thereof. Notice of the result of the
voting on any resolution duly considered by the Noteholders shall be
published in accordance with Condition 14 by the relevant Issuer within
14 days of such result being known PROVIDED THAT the non-publication of
such notice shall not invalidate such resolution.
20. The expression "Extraordinary Resolution" when used in this Agreement or
the Conditions means a resolution passed at a meeting of the Noteholders
duly convened and held in accordance with the provisions herein contained
by a majority consisting of not less than 75 per cent. of the persons
voting thereat upon a show of hands or if a poll be duly demanded then by
a majority consisting of not less than 75 per cent. of the votes given on
such poll.
21. Minutes of all resolutions and proceedings at every such meeting as
aforesaid shall be made and duly entered in books to be from time to time
provided for that purpose by the relevant Issuer and any such Minutes as
aforesaid if purporting to be signed by the Chairman of the meeting at
which such resolutions were passed or proceedings had shall be conclusive
evidence of the matters therein contained and until the contrary is
proved every such meeting in respect of the proceedings of which Minutes
have been made shall be deemed to have been duly held and convened and
all resolutions passed or proceedings had thereat to have been duly
passed or had.
22. Subject to all other provisions contained herein the Agent may without
the consent of the relevant Issuer, the Guarantor, the Noteholders or the
Couponholders prescribe such further regulations regarding the
requisitioning and/or the holding of meetings of Noteholders and
attendance and voting thereat as the Agent may in its sole discretion
think fit.
108
SCHEDULE 5
FORM OF PUT NOTICE
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[title of relevant Series of Notes]
By depositing this duly completed Notice with any Paying Agent for the above
Series of Notes (the "Notes") the undersigned holder of such Notes surrendered
with this Notice and referred to below irrevocably exercises its option to
have such Notes redeemed in accordance with Condition 6(e) on [redemption
date].
This Notice relates to Notes in the aggregate nominal amount of _______
bearing the following serial numbers:
---------------------------------------------
---------------------------------------------
---------------------------------------------
If the Notes referred to above are to be returned (1) to the undersigned under
clause 10(4) of the Agency Agreement, they should be returned by post to the
following address outside the United States:
-------------------------
-------------------------
-------------------------
Payment Instructions
Please make payment in respect of the above-mentioned Notes by [cheque posted
to the above address/transfer to the following bank account] (2):
Bank: -----------------------------
Branch Address outside
the United States: -----------------------------
Branch Code: -----------------------------
Account Number: -----------------------------
Signature of holder: -----------------------------
109
Duly authorised on behalf of
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[To be completed by recipient Paying Agent]
Details of missing unmatured Coupons ---------------------------(3)
Received by: -----------------------
[Signature and stamp of Paying Agent]
At its office at: -----------------------
On: -----------------------
Notes
(1) The Agency Agreement provides that Notes so returned will be sent by
post, uninsured and at the risk of the Noteholder, unless the Noteholder
otherwise requests and pays the costs of such insurance to the relevant
Paying Agent at the time of depositing the Note referred to above.
(2) Delete as applicable.
(3) Only relevant for Fixed Rate Notes (which are not also Indexed Redemption
Amount Notes) in definitive form.
N.B. The Paying Agent with whom the above-mentioned Notes are deposited will
not in any circumstances be liable to the depositing Noteholder or any
other person for any loss or damage arising from any act, default or
omission of such Paying Agent in relation to the said Notes or any of
them unless such loss or damage was caused by the fraud or gross
negligence of such Paying Agent or its directors, officers or employees.
This Put Notice is not valid unless all of the paragraphs requiring
completion are duly completed. Once validly given this Put Notice is
irrevocable except in the circumstances set out in clause 10(4) of the
Agency Agreement.
110
SCHEDULE 6
Dated 30th March, 2001
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
as Issuers
- and -
CIBA SPECIALTY CHEMICALS HOLDING INC.
as Guarantor
__________________________________
OPERATING & ADMINISTRATIVE
PROCEDURES MEMORANDUM
in respect of a
U.S.$2,000,000,000
EURO MEDIUM TERM NOTE PROGRAM
(Amended and Restated)
___________________________________
▇▇▇▇▇ & ▇▇▇▇▇
London
111
The aggregate nominal amount of all Notes outstanding at any time will not,
subject as provided below, exceed U.S.$2,000,000,000 or its equivalent in
other currencies at the time of agreement to issue, subject to increase as
provided in the Program Agreement. The Program Agreement provides for the
increase in the nominal amount of Notes that may be issued under the Program.
In that event, this Procedures Memorandum shall apply to the Program as
increased.
The documentation of the Program provides for the issue of Notes denominated
in any currency or currencies as may be agreed between the relevant Issuer,
the Guarantor and the relevant Dealer (subject to certain restrictions as to
minimum and/or maximum maturities as set out in the Offering Circular
describing the Program) and being any of:
o Fixed Rate Notes
o Floating Rate Notes
o Zero Coupon Notes
o Dual Currency Notes
o Indexed Interest Notes
o Indexed Redemption Amount Notes
o Instalment Notes
o Partly Paid Notes
o other forms of Notes agreed between the relevant Dealer or
Lead Manager, the relevant Issuer and the Guarantor
All terms with initial capitals used herein without definition shall have the
meanings given to them in the Offering Circular dated 30th March, 2001 (the
"Offering Circular" as supplemented), or, as the case may be, the amended and
restated Program Agreement dated 30th March, 2001 (the "Program Agreement" as
amended, supplemented or restated) between the Issuers, the Guarantor and the
Dealers named therein pursuant to which the Issuer may issue Euro Medium Term
Notes.
OPERATING PROCEDURES
Dealers must confirm all trades directly with the Issuer, the Guarantor and
the Agent.
A. RESPONSIBILITIES OF THE AGENT
The Agent will, in addition to the responsibilities in relation to
settlement described in Annexe A, be responsible for the following:
(i) in the case of Notes which are to be listed on a Stock Exchange,
distributing, or procuring the distribution, to the Stock Exchange
and any other relevant authority such number of copies of the
Pricing Supplement required by the Stock Exchange and such other
relevant authority;
(ii) in the case of Notes which are to be listed on a Stock Exchange,
immediately notifying the relevant Issuer and the relevant Dealer if
at any time the Agent is notified by the Listing Agent or the Stock
Exchange that the listing of a Tranche of Notes has been refused or
otherwise will not take place; and
(iii) determining the end of the Distribution Compliance Period in
respect of a Tranche in accordance with clause 4 of the Agency
Agreement. The Agent shall upon determining the end of the
Distribution Compliance Period in respect of any Tranche
112
notify the relevant Issuer, the Guarantor, Euroclear, Clearstream,
Luxembourg and the relevant Dealer or Lead Manager, as the case may
be.
B. RESPONSIBILITIES OF DEALER/LEAD MANAGER
(i) Each Dealer/Lead Manager will be responsible for preparing and
agreeing with the relevant Issuer and the Guarantor a Pricing
Supplement (substantially in the form of Annexe C hereto) giving
details of each Tranche of Notes to be issued.
(ii) In the case of an issue not to be subscribed pursuant to a
Subscription Agreement, each Dealer which agrees to purchase Notes
from the relevant Issuer will be responsible for notifying the Agent
upon completion of the distribution of the Notes of each Tranche
purchased by that Dealer. In the case of an issue of Notes to be
subscribed pursuant to a Subscription Agreement, the Lead Manager
will be responsible for notifying the Agent upon completion of the
distribution of the Notes of such issue.
C. SETTLEMENT
The settlement procedures set out in Annexe A shall apply to each
issue of Notes (Part 1 in the case of issues not to be subscribed
pursuant to a Subscription Agreement, Part 2 in the case of issues
to be subscribed pursuant to a Subscription Agreement), unless
otherwise agreed between the relevant Issuer, the Guarantor, the
Agent and the relevant Dealer or the Lead Manager, as the case may
be. With issues of Notes to be listed on a Stock Exchange other than
the Luxembourg Stock Exchange more time may be required to comply
with the relevant Stock Exchange's listing requirements and with
issues of Dual Currency or Indexed Notes more time may be required
to settle documentation.
A Trading Desk and Administrative Contact List is set out in Annexe
D.
N.B.: ALL COMMUNICATIONS WITH ANY ISSUER MUST BE COPIED TO THE
GUARANTOR.
113
ANNEXE A
PART 1
SETTLEMENT PROCEDURES FOR ISSUES NOT TO BE SUBSCRIBED
PURSUANT TO A SUBSCRIPTION AGREEMENT
References below to the "Issuer" is to the "relevant Issuer".
Day Latest Action
London time
No later 2.00 p.m. The Issuer and the Guarantor may agree terms
than Issue with one or more of the Dealers for the
Date minus 5 issue and purchase of Notes (whether
pursuant to an unsolicited bid from a Dealer
or pursuant to an enquiry by the Issuer).
The Dealer instructs the Agent to obtain a
common code and ISIN from Euroclear or
Clearstream, Luxembourg. In the case of the
first Tranche of Notes of a Series, the
Agent telephones Euroclear or Clearstream,
Luxembourg with a request for a common code
and ISIN for such Series and in the case of
a subsequent Tranche of Notes of that Series
the Agent telephones Euroclear or
Clearstream, Luxembourg with a request for
a temporary common code and ISIN for such
Tranche. Each common code and ISIN is
notified by the Agent to the Issuer and
each Dealer which has reached agreement
with the Issuer.
3.00 p.m. If a Dealer has reached agreement with the
Issuer and the Guarantor by telephone, such
Dealer confirms the terms of the agreement
to the Issuer and the Guarantor by fax
(substantially in the form set out in Annexe
B) attaching a copy of the Pricing
Supplement (substantially in the form set
out in Annexe C). The Dealer sends a copy
of that fax to the Agent for information.
5.00 p.m. The Issuer and the Guarantor confirm their
agreement to the terms on which the issue of
Notes is to be made (including the form of
the Pricing Supplement) by each signing and
returning a copy of the Pricing Supplement
to the relevant Dealer. The Issuer also
confirms its instructions to the Agent
(including, in the case of Floating Rate
Notes, for the purposes of rate fixing) to
carry out the duties to be carried out by
the Agent under these Settlement Procedures
and the Agency Agreement including
preparing, authenticating and issuing a
Temporary Global Note for the Tranche of
Notes which is to be purchased and in the
case of
114
Day Latest Action
London time
the first Tranche of a Series,
where the Pricing Supplement for such
Tranche does not specify that such Temporary
Global Note is to be exchangeable only for
Notes in definitive form, a Permanent Global
Note for such Series, giving details of such
Notes. The Issuer confirms such
instructions by sending a copy by fax of the
signed P the signed Pricing Supplement shall
be conclusive evidence of the agreement
(save in the case of manifest error) and
shall be binding on the parties accordingly.
No later than In the case of Notes which are to be listed
Issue Date on a Stock Exchange, the Agent also
minus 3 notifies, or the notification to, the
relevant Stock Exchange and any other
relevant authority by fax or by hand of the
details of the Notes to be issued by sending
the Pricing Supplement to the relevant Stock
Exchange and any other relevant authority.
Issue Date 3.00 p.m. The relevant Dealer instructs Euroclear and/
minus 2 or Clearstream, Luxembourg to debit its
account and pay the purchase price, against
delivery of the Notes, to the Agent's
account with Euroclear and/or Clearstream,
Luxembourg on the Issue Date and the Agent
receives details of such instructions
through the records of Euroclear and/or
Clearstream, Luxembourg.
In the case of Floating Rate Notes, the
Agent notifies Euroclear, Clearstream,
Luxembourg , the Issuer, the Guarantor (if
applicable) the relevant Stock Exchange and
the relevant Dealer by telex or fax of the
Rate of Interest for the first Interest
Period (if already determined). Where the
Rate of Interest has not yet been
determined, this will be notified in
accordance with this paragraph as soon as
it has been determined.
Issue Date minus 1 3.00 p.m. The Agent prepares and authenticates a
Temporary Global Note for each Tranche of
Notes which is to be purchased and, where
required as specified above, a Permanent
Global Note in respect of the relevant
Series. The conditions precedent in the
Program agreement are satisfied and/or
waived. The Temporary Global Note and any
such Permanent Global Note are then
delivered by the Agent to a common
depositary for Euroclear and Clearstream,
Luxembourg and instructions are given by the
Agent to Euroclear or, as the case may be,
Clearstream, Luxembourg to credit the Notes
represented by such
115
Day Latest Action
London time
Temporary Global Note to the Agent's
distribution account. The Agent further
instructs Euroclear or, as the case may
be, Clearstream, Luxembourg to debit from
the distribution account the nominal amount
of the relevant Tranche of Notes and to
credit such nominal amount to the account
of such Dealer with Euroclear or
Clearstream, Luxembourg against payment to
the account of Tranche of Notes for value on
the Issue Date. The relevant Dealer gives
corresponding instructions to Euroclear or
Clearstream, Luxembourg. The parties (which
for this purpose shall include the Agent)
may agree to arrange for "free delivery" to
be made through the relevant clearing system
if specified in the applicable Pricing
Supplement, in which case these Settlement
Procedures will be amended accordingly.
Issue Date Euroclear and Clearstream, Luxembourg debit
and credit accounts in accordance with
instructions received by them.
The Agent pays to the Issuer for value on
the Issue Date the aggregate purchase moneys
received by it to such account of the Issuer
as shall have been notified to the Agent for
the purpose.
On or subsequent The Agent notifies the Issuer and Guarantor
to the Issue Date forthwith in the event that a Dealer
does not pay the purchase price due from it
in respect of a Note.
The Agent notifies the Issuer of the issue
of Notes giving details of the Global
Note(s) and the nominal amount represented
thereby.
The Agent confirms the issue of Notes to the
relevant Stock Exchange and any other
relevant authority.
The relevant Dealer promptly notifies the
Agent that the distribution of the Notes
purchased by it has been completed. The
Agent promptly notifies the Issuer, the
Guarantor, the relevant Dealers, Euroclear
and Clearstream, Luxembourg of the date of
the end of the Distribution Compliance
Period with respect to the relevant Tranche
of Notes.
116
ANNEXE A
PART 2
SETTLEMENT PROCEDURES FOR ISSUES SUBSCRIBED PURSUANT TO A SUBSCRIPTION AGREEMENT
References below to the "Issuer" is to the "relevant Issuer".
Day Latest time Action
No later than The Issuer and the Guarantor may,
Issue Date minus 10 subject to the execution of the
(or such other number Subscription Agreement referred to
of days agreed between below, agree terms with a Dealer
the Issuer, the (which expression in this Part 2
Guarantor, the Lead includes any entity to be appointed
Manager and the Agent) as a dealer under the Subscription
Agreement referred to below) (the
"Lead Manager") for the issue and
purchase of Notes to be subscribed
pursuant to a Subscription
Agreement (whether pursuant to an
unsolicited bid by such Lead Manager
or pursuant to an enquiry by the
Issuer). The Lead Manager may invite
other Dealers (new or additional)
approved by the Issuer and the
Guarantor to join an underwriting
syndicate either on the basis of an
invitation telex agreed between the
Issuer, the Guarantor and the Lead
Manager or on the terms of the
Pricing Supplement referred to below
and the Subscription Agreement. The
Lead Manager and any such Dealers are
together referred to as the
"Managers".
The Lead Manager instructs the Agent
to obtain a common code and ISIN from
Euroclear or Clearstream, Luxembourg.
In the case of the first Tranche of
Notes of a Series, the Agent
telephones Euroclear or Clearstream,
Luxembourg with a request for a common
code and ISIN for such Series and in
the case of a subsequent Tranche of
Notes of that Series the Agent
telephones Euroclear or Clearstream,
Luxembourg with a request for a
temporary common code and ISIN
for such Tranche. Each Common Code
and ISIN is notified by the Agent to
the Issuer and the Lead Manager.
117
Day Latest time Action
The Issuer, the Guarantor and the Lead
Manager agree a form of Pricing
Supplement prepared by or on behalf of
the Lead Manager (in substantially the
form of Annexe C) which is submitted
to the lawyers rendering a legal
opinion in connection with the
relevant issue for approval. A draft
Subscription Agreement (in
substantially the form of Appendix E
to the Program Agreement or such other
form as may be agreed between the
Issuer, the Guarantor and the Lead
Manager) is also prepared. The
Subscription Agreement may, if so
agreed, be called by another name.
The Lead Manager sends a copy of the
agreed, be Subscription Agreement
to any other Manager at least two full
days (as defined in the Explanatory
Notes to this Annexe A) before
the Subscription Agreement is intended
to be signed. At the same time the
Lead Manager sends a copy of the
Offering Circular and Program
Agreement (together with such other
items from the Initial Documentation
List as the Lead Manager deems
appropriate) to any other Manager
which has not previously received
such documents. The Subscription
Agreement and Pricing Supplement
are agreed and executed and a copy of
the Pricing Supplement is sent by fax
to the Agent which shall act as the
Agent's authorisation (including, in
the case of Floating Rate Notes,
for the purposes of rate fixing) to
carry out the duties to be carried
out by it under these Settlement
Procedures and the Agency Agreement
including preparing, authenticating
and issuing a Temporary Global Note
for the Tranche of Notes which
is to be purchased and in the case of
the first Tranche of a Series,
where the Pricing Supplement does
not specify that such Temporary Global
Note is to be exchangeable only for
Notes in definitive form, a
Permanent Global Note for such Series,
giving details of such Notes.
No later than In the case of Notes to be listed on a
Issue Date Stock Exchange, the Agent notifies or
minus 3 procure the notification to, the
relevant Stock Exchange by fax or by
hand of the details of the Notes to
be issued by sending the Pricing
Supplement to the relevant Stock
Exchange and any other relevant
authority.
No later than The Lead Manager instructs Euroclear
Issue Date and/or Clearstream, Luxembourg to
minus 2 debit its account and pay the
purchase price, against delivery of
the Notes as instructed by the Lead
Manager to the account specified by
the Issuer.
118
Day Latest time Action
Issue Date 3.00 p.m. In the case of Floating Rate Notes,
minus 2 the Agent notifies Euroclear,
Clearstream, Luxembourg, the Issuer,
the Guarantor, the relevant Stock
Exchange (if applicable) and the Lead
Manager by telex or fax of the Rate of
Interest for the first Interest Period
(if already determined). Where the
Rate of Interest has not yet been
determined, this will be notified in
accordance with this paragraph as soon
as it has been determined.
Issue Date agreed time The Agent prepares and authenticates a
minus 1 (in the Temporary Global Note for each Tranche
case of pre-closed of Notes which is to be purchased,
issues) or Issue and where required as specified above,
Date (in any other a Permanent Global Note in respect
case) (the "Payment of the relevant Series. The
Instruction Date") conditions precedent in the
Subscription Agreement and the Program
Agreement are satisfied and/or waived.
The Temporary Global Note and any such
Permanent Global Note are then
delivered by the Agent to a common
depositary for Euroclear and
Clearstream, Luxembourg and
instructions are given by the Agent
(on behalf of the Issuer) to the
common depositary to hold the Notes
represented by such Temporary Global
Note to the Issuer's order.
The Lead Manager instructs the common
depositary to request Euroclear and/or
Clearstream, Luxembourg to credit such
nominal amount of the relevant Tranche
of Notes to the accounts of the
persons entitled thereto with
Euroclear or Clearstream, Luxembourg
against payment to the specified
account of the Issuer of the purchase
price for the relevant Tranche of
Notes for value on the Issue Date.
The common depositary issues a payment
confirmation in respect of this
payment.
Issue Date Payment is effected and Euroclear
and/or Clearstream, Luxembourg debit
and credit accounts in accordance with
instructions received by them.
The Agent notifies the Issuer of the
issue of Notes giving details of the
Global Note(s) and the nominal amount
represented thereby.
The Agent confirms the issue of Notes
to the relevant Stock Exchange and any
other relevant authority.
On or subsequent to the Each other Manager (if any) promptly
Issue Date notifies the Lead Manager when the
distribution of the Notes purchased
by it has been completed. The Lead
119
Manager promptly notifies the Agent
upon completion of the distribution of
the Notes of the relevant Tranche.
The Agent promptly notifies the
Issuer, the Guarantor, the Lead
Manager, Euroclear and Clearstream,
Luxembourg of the date of the end of
the Distribution Compliance Period
with respect to the relevant Tranche
of Notes.
120
Explanatory Notes to Annexe A
------------------------------
(a) Each "day" is a day on which banks and foreign exchange markets are open
for business in London, counted in reverse order from the proposed Issue
Date.
(b) The Issue Date must be a Business Day. For the purposes of this
Memorandum, "Business Day" means a day which is both:
(i) a day on which commercial banks and foreign exchange markets settle
payments in London and any other place as is specified in the
applicable Pricing Supplement (each an "Additional Business
Centre"); and
(ii) either (1) in relation to Notes denominated or payable in a
Specified Currency other than euro, a day on which commercial banks
and foreign exchange markets settle payments in the principal
financial centre of the country of the relevant Specified Currency
(if other than London or any Additional Business Centre) and which,
if the Specified Currency is New Zealand Dollars, shall be Auckland)
or (2) in relation to Notes denominated or payable in euro, a day on
which the TARGET System is open. "TARGET System" means the
Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System. Unless otherwise provided in the applicable Pricing
Supplement, the principal financial centre for any currency shall be
as provided in the 2000 ISDA Definitions, each as amended and
updated as at the Issue Date of the first Tranche of Notes of the
relevant Series and published by the International Swaps and
Derivatives Association, Inc.
(c) Times given are the approximate times for the taking of the action in
question and are references to London time.
121
ANNEXE B
FORM OF DEALER'S CONFIRMATION
FOR ISSUES WITH NO SUBSCRIPTION AGREEMENT
[Date]
To: [CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
and: CIBA SPECIALTY CHEMICALS HOLDING INC.
c.c. The Chase Manhattan Bank
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[Title of relevant Tranche of Notes (specifying type of Notes)]
issued pursuant to the U.S.$2,000,000,000 Euro Medium Term Note Program
We hereby confirm the agreement for the issue to us of [describe issue] Notes
due [ ] (the "Notes") under the above Program pursuant to the terms of issue
set out in the Pricing Supplement which we are faxing herewith.
[The selling commission in respect of the Notes will be [ ] per cent. of the
nominal amount of the Notes and will be deductible from the net proceeds of
the issue.]
The Notes are to be credited to [Euroclear/Clearstream, Luxembourg] account
number [ ] in the name of [Name of Dealer].
Please confirm your agreement to the terms of issue by signing and faxing to
us a copy of the following Pricing Supplement. Please also fax a copy of the
Pricing Supplement to the Agent.
For and on behalf of [Name of Dealer]
By: ---------------------------
Authorised signatory
122
ANNEXE C
FORM OF PRICING SUPPLEMENT
[Date]
[Ciba Specialty Chemicals Corporation/
Ciba Specialty Chemicals PLC/
Ciba Spezialitatenchemie Holding Deutschland GmbH]
Issue of [Aggregate Nominal Amount of Tranche]
[Title of Notes] Guaranteed by Ciba Specialty
Chemicals Holding Inc.
under the USD 2,000,000,000
Euro Medium Term Note Program
[The Notes constitute [commercial paper/shorter term debt securities/longer
term debt securities] issued in accordance with regulations made under section
4 of the Banking ▇▇▇ ▇▇▇▇. The Issuer of the Notes is not an authorized
institution or a European authorized institution (as such terms are defined in
the Banking ▇▇▇ ▇▇▇▇ (Exempt Transactions) Regulations 1997). Repayment of the
principal and payment of any interest or premium in connection with the Notes
has been guaranteed by Ciba Specialty Chemicals Holding Inc., which is neither
an authorized institution nor a European authorized institution]. **
This document constitutes the Pricing Supplement relating to the issue of
Notes described herein. Terms used herein shall be deemed to be defined as
such for the purposes of the Conditions set forth in the Offering Circular
dated [ ]. This Pricing Supplement must be read in conjunction with such
Offering Circular.
[Include whichever of the following apply or specify as "Not Applicable"
(N/A). Note that the numbering should remain as set out below, even if "Not
Applicable" is indicated for individual paragraphs or sub-paragraphs. Italics
denote directions for completing the Pricing Supplement.]
1. (i) Issuer: [ ]
(ii) Guarantor: Ciba Specialty Chemicals Holding Inc.
2. (i)] Series Number: [ ]
[(ii) Tranche Number: [ ]
(If fungible with an existing Series,
details of that Series, including
the date on which the Notes become
fungible)]
3. Specified Currency [ ]
or Currencies:
4. Aggregate Nominal Amount:
123
- Tranche: [ ]
- Series: [ ]
5. Issue Price of Tranche: [ ] percent
6. Specified Denominations: [In the case of Notes with a maturity of
183 days or less issued by (i) Ciba
Specialty Chemicals Corporation and
(ii) where proceeds of the issuance are
on-lent to a U.S. entity, the minimum
denomination for such Notes shall be USD
500 000 (or the equivalent thereof at
exchange rates applicable on the relevant
date of calculation)]
7. [(i)] Issue Date: [ ]
(ii) Interest Commencement Date
(if different from the
Issue Date): [ ]]
8. Maturity Date: [Fixed rate - specify date/
Floating rate - Interest Payment Date
falling in [specify month and year]]
9. Interest Basis: [[ ] percent Fixed Rate]
[[LIBOR/EURIBOR] +/- [ ] percent Floating
Rate]
[Zero Coupon]
[Indexed Interest]
[specify other]
(further particulars specified below)
10. Redemption/Payment Basis: [Redemption at par]
[Indexed Redemption]
[Dual Currency]
[Partly Paid]
[Installment]
[specify other]
11. Change of Interest Basis or [Specify details of any provision for
Basis or Redemption/Payment change of Notes into another Interest
Basis] Redemption/Payment Basis:
12. Put/Call Options: [Investor Put]
[Issuer Call]
[(further particulars specified below)]
13. Listing: [Luxembourg/specify other/None]
14. Method of distribution: [Syndicated/Non-syndicated]
124
PROVISIONS RELATING TO INTEREST (IF ANY) PAYABLE
15. Fixed Rate Note Provisions [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Rate[(s)] of Interest: [ ] percent per annum [payable
[annually/semi-annually/quarterly/monthly]
in arrears]
(ii) Interest Payment Date(s): [ ] in each year
(iii) Fixed Coupon Amount(s): [ ] per [ ] in nominal amount
(iv) Broken Amount(s): [Insert particulars of any initial or
final broken interest amounts which do not
correspond with the Fixed Coupon Amounts]
(v) Fixed Day Count Fraction: [30/360 or Actual/Actual (ISMA) or specify
other] (Note that if interest is not
payable on a regular basis (for example,
if there are Broken Amounts specified)
Actual/Actual (ISMA) will not be a
suitable Fixed Day Count Fraction)
(vi) Interest Determination [ ] in each year
Date(s): [Insert interest payment dates except
where there are long or short periods. In
these cases, insert regular interest
payment dates] (NB: Only relevant
where Day Count Fraction is
Actual/Actual (ISMA))
(vii) Other terms relating to
the method of calculating
interest for Fixed Rate [None/Give details]
Notes:
16. Floating Rate Note Provisions [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Specified Period(s)/
Specified Interest Payment [ ]
Dates:
(ii) Business Day Convention: [Floating Rate Convention/Following
Business Day Convention/Modified Following
Business Day Convention/Preceding Business
Day Convention/[specify other]]
(iii) Additional Business [ ]
Center(s):
(iv) Manner in which the Rate of
125
Interest and Interest Amount
is to be determined: [Screen Rate Determination/ISDA
Determination/specify other]
(v) Party responsible for calculating
the Rate of Interest and Interest [ ]
Amount (if not the Principal
Paying Agent):
(vi) Screen Rate Determination:
- Reference Rate: [ ]
(Either LIBOR, EURIBOR or other, although
additional information is required if
other - including fallback provisions in
the Agency Agreement)
- Interest Determination Date(s): [ ]
(Second London business day prior to the
start of each Interest Period if LIBOR and
second TARGET day prior to the start of
each Interest Period if EURIBOR)
- Relevant Screen Page: [ ]
(in the case of EURIBOR, if not Telerate
248 ensure it is a page which shows a
composite rate)
(vii) ISDA Determination:
- Floating Rate Option: [ ]
- Designated Maturity: [ ]
- Reset Date(s): [ ]
(viii) Margin(s): [+/-] [ ] percent per annum
(ix) Minimum Rate of Interest: [ ] percent per annum
(x) Maximum Rate of Interest: [ ] percent per annum
(xi) Floating Day Count Fraction: [ ]
(xii) Fall back provisions, rounding
provisions and any other
terms relating to the method
of calculating interest on
Floating Rate
126
Notes, if different from those [ ]
set out in the Conditions:
17. Zero Coupon Note Provisions [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Accrual Yield: [ ] percent per annum
(ii) Reference Price: [ ]
(iii) Any other formula/basis of
determining amount payable: [ ]
(Consider applicable day count fraction
if euro denominated)
18. Indexed Interest Note Provisions [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Index/Formula: [give or annex details]
(ii) Calculation Agent
responsible for calculating
the principal and/or [ ]
interest due:
(iii) Provisions for determining
coupon where calculation by
reference to Index and/or [ ]
Formula is impossible or
impracticable:
(iv) Specified Period(s)/
Specified Interest
Payment Dates: [ ]
(v) Business Day Convention: [Floating Rate Convention/Following
Business Day Convention/Modified Following
Business Day Convention/Preceding Business
Day Convention/specify other]
(vi) Additional Business
Center(s): [ ]
(vii) Minimum Rate of Interest: [ ] percent per annum
(viii) Maximum Rate of Interest: [ ] percent per annum
(ix) Floating Day Count Fraction: [ ]
127
19. Dual Currency Note Provisions [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Rate of Exchange/method of
calculating Rate of [give details]
Exchange:
(ii) Calculation Agent, if any,
responsible for calculating [ ]
the principal and/or
interest due:
(iii) Provisions applicable where [ ]
calculation by reference to
Rate of Exchange is
impossible or impracticable:
(iv) Person at whose option [ ]
Specified Currency(ies)
is/are payable:
PROVISIONS RELATING TO REDEMPTION
20. Issuer Call: [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Optional Redemption Date(s): [ ]
(ii) Optional Redemption Amount(s)
and method, if any, of [ ]
calculation of such
amount(s):
(iii) If redeemable in part:
(a) Minimum Redemption Amount[ ]
(b) Higher Redemption Amount [ ]
(iv) Notice period (if other
than as set out in the [ ]
Conditions):
21. Investor Put: [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
128
(i) Optional Redemption Date(s): [ ]
(ii) Optional Redemption
Amount(s) and method, if
any, of calculation of [ ]
such amount(s):
(iii) Notice period (if other
than as set out in the [ ]
Conditions):
22. Final Redemption Amount [Par/specify other/see Appendix]
23. Early Redemption Amount(s)
payable on redemption for
taxation reasons or on event
of default and/or the method
of calculating the same (if
required or if different from
that set out in Condition 6(f)): [ ]
GENERAL PROVISIONS APPLICABLE TO THE NOTES
24. Form of Notes: Temporary Global Note exchangeable for a
Permanent Global Note which is
exchangeable for Definitive Notes
[on 60 days notice given at any time/only
upon an Exchange Event] [n.b. the latter
option is not available to Ciba Specialty
Chemicals Corporation or where proceeds
are to be on-lent to a United States
entity].
[Temporary Global Note exchangeable for
Definitive Notes on and after the Exchange
Date.]
25. Additional Financial Center(s) [Not Applicable/give details]
or other special provisions (Note that this item relates to the place
relating to Payment Dates: of payment and not Interest Period end
dates to which item 16(iii) relates)
26. Talons for future Coupons or
Receipts to be attached to
Definitive Notes (and dates on
which such Talons mature): [Yes/No. If yes, give details]
27. Details relating to Partly
Paid Notes: amount of each
payment comprising the Issue
Price and date on which
129
each payment is to be made and,
if different from those
specified in the Temporary
Global Note, consequences of
failure to pay, including any
right of the Issuer to forfeit
the Notes and interest due on [Not Applicable/give details]
late payment:
28. Details relating to
Installment Notes: amount of
each installment, date on which
each payment is to be made: [Not Applicable/give details]
29. Redenomination applicable: Redenomination [not] applicable
(If Redenomination is applicable,
specify either the applicable Fixed Day\
Count Fraction or any provisions necessary
to deal with floating rate interest
calculation (including alternative
reference rates))
30. Details relating to Installment
Notes: Specify Installment
Amounts and Installment Dates: [Not Applicable/give details]
31. Other terms or special
conditions: [Not Applicable/give details]
DISTRIBUTION
32. (i) If syndicated, names of
Managers: [Not Applicable/give names]
(ii) Stabilizing Manager
(if any): [Not Applicable/give name]
33. If non-syndicated, name of
relevant Dealer: [Not Applicable/give name]
34. Whether TEFRA D rules
applicable or TEFRA rules not TEFRA D/TEFRA not applicable]
applicable
35. Additional selling restrictions: [Not Applicable/give details]
OPERATIONAL INFORMATION
36. Any clearing system(s) other [Not Applicable/give name(s) and
than Euroclear and Clearstream, number(s)]
Luxembourg and the relevant
identification number(s):
37. Delivery: Delivery [against/free of] payment
38. Additional Paying Agent(s)
(if any): [ ]
130
39. [Notes in respect of which the issue proceeds are accepted by the Issuer
in the United Kingdom and which are to be listed. The text set out below
may be deleted if the Issuer is relying on any of Regulation 13(4)(c) to
(g) of the Banking ▇▇▇ ▇▇▇▇ (Exempt Transactions) Regulations 1997]
The Issuer confirms that it:
(a) has complied with its obligations under the relevant rules (as defined in
the Banking ▇▇▇ ▇▇▇▇ (Exempt Transactions) Regulations 1997 (the
"Regulations ")) in relation to the admission to and continuing listing
of the Program and of any previous issues made under it and listed on the
same exchange as the Program;
(b) will have complied with its obligations under the relevant rules in
relation to the admission to listing of such Notes by the time when such
Notes are so admitted;
(c) has not, since the last publication, if any, in compliance with the
relevant rules of information about the Program, any previous issues made
under it and listed on the same exchange as the Program, or the Notes,
having made all reasonable inquiries, become aware of any change in
circumstances which could reasonably be regarded as significantly and
adversely affecting its ability to meet its obligations as Issuer in
respect of the Notes as they fall due; and
(d) has complied and will continue to comply with its obligations under the
Regulations to lodge all relevant information (as defined in the
Regulations) in relation to any such Notes with the UK Listing Authority.
_____________________________________________________________________________
ISIN: [ ]
Common Code: [ ]
_____________________________________________________________________________
[If the Issuer is relying on Regulation 13(4)(b) and the Offering Circular
does not include one, include here a summary of the tax treatment relevant to
the United Kingdom resident holders of the Notes.]
[LISTING APPLICATION
This Pricing Supplement comprises the details required to list the issue of
Notes described herein pursuant to the listing of the USD 2 000 000 000 Euro
Medium Term Note Program of Ciba Specialty Chemicals Corporation/Ciba
Specialty Chemicals PLC/Ciba Spezialitatenchemie Holding Deutschland GmbH]
131
RESPONSIBILITY
The Issuer and the Guarantor accept responsibility for the information
contained in this Pricing Supplement.
Signed on behalf of the Issuer: Signed on behalf of the Guarantor:
By:------------------------------ By:------------------------------
Duly authorized Duly authorized
By:------------------------------
Duly authorized
132
ANNEXE D
TRADING DESK AND ADMINISTRATIVE INFORMATION
The Issuers
CIBA SPECIALTY CHEMICALS CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Telephone: 1 914 785 2000
Telefax: 1 914 785 2650
Attention: Treasurer
CIBA SPECIALTY CHEMICALS PLC
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: 44 1 625 888 220
Telefax: 44 1 625 888 380
Attention: Treasurer
CIBA SPEZIALITATENCHEMIE HOLDING ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telephone: 49 6206 152810
Telefax: 49 6206 152816
Attention: Treasurer
The Guarantor
CIBA SPECIALTY CHEMICALS HOLDING INC.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telephone: 41 61 636 2740
Telefax: 41 61 636 6828
Attention: Group Treasurer
133
The Dealers
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone: 44 20 7888 4021
Telex: 892131 CSFB G
Telefax 44 20 7888 3719
Attention: MTN Trading
DEUTSCHE BANK AG LONDON
Winchester House
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: 44 20 7545 2761
Telex: 94 01 5555 DBLN G
Telefax: 44 20 7541 2761
Attention: MTN Desk
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: 44 20 7774 2295
Telex: 94012165 GSHH G
Telefax: 44 20 7774 5711
Attention: Euro Medium Term Note Desk
▇.▇. ▇▇▇▇▇▇ SECURITIES LTD.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: 44 20 7779 3469
Telex: 8954804 MGLTD G
Telefax: 44 20 7325 8225
Attention: Euro Medium Term Note Desk
UBS AG, acting through its business group UBS Warburg
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: 44 20 7567 2324
Telex: ▇▇▇▇▇▇ ▇▇▇▇ ▇
Telefax: 44 20 7568 3349
134
Attention: MTNs and Private Placements
The Agent
The Chase Manhattan Bank
Trinity Tower
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone: 44 1202 347430
Telex: 8954681 CMB G
Telefax: 44 1202 347438
Attention: Manager, Institutional Trust Services
135
SIGNATORIES
The Issuers
CIBA SPECIALTY CHEMICALS CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Telephone: 001 914 785 2000
Telefax: 001 914 785 2650
Attention: Treasurer
By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
CIBA SPECIALTY CHEMICALS PLC
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Telephone: 44 1 625 888 220
Telefax: 44 1 625 888 380
Attention: Treasurer
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CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
Chemiestrasse
D-68623 Lampertheim
Germany
Telephone: 00 49 6206 152 810
Telefax: 00 49 6206 152 816
Attention: Treasurer
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136
The Guarantor
CIBA SPECIALTY CHEMICALS HOLDING INC.
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Telephone: 00 41 61 636 2740
Telefax: 00 41 61 636 6828
Attention: Group Treasurer
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The Agent
THE CHASE MANHATTAN BANK, LONDON BRANCH
Trinity Tower
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Telephone: 44 1202 347430
Telex No: 8954681 CMB G
Telefax No: 44 1202 347438
Attention: Manager, Institutional Trust Services
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CHASE MANHATTAN BANK LUXEMBOURG S.A.
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All communications should be sent care of the Agent
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Without prejudice to the foregoing execution of the Agreement by the parties
hereto, Chase Manhattan Bank Luxembourg S.A. hereby expressly and specifically
confirms its agreement with the provisions of clause 30(2) hereof for the
purposes of Article 1 of the Protocol annexed to the Convention on
jurisdiction and the enforcement of judgments in civil and commercial matters
signed at Brussels on 27th September, 1968.
CHASE MANHATTAN BANK LUXEMBOURG S.A.
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