Exhibit 4.2
30th March, 2001
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
as Issuers
--------------------------------------------
DEED OF COVENANT
--------------------------------------------
▇▇▇▇▇ & ▇▇▇▇▇
London
DEED OF COVENANT
THIS DEED OF COVENANT is made on 30th March, 2001 by each of Ciba Specialty
Chemicals Corporation, Ciba Specialty Chemicals PLC and Ciba
Spezialitatenchemie Holding Deutschland GmbH (each an "Issuer") in favour of
the account holders of Clearstream Banking, societe anonyme ("Clearstream,
Luxembourg") and Euroclear Bank S.A./N.V. as operator of the Euroclear System
("Euroclear"), or any successor to the business thereof or any other
additional clearing system or systems as are specified in the Pricing
Supplement relating to any Note (as defined below) (each a "Clearing System").
WHEREAS:
(A) Each Issuer has entered into an amended and restated Program Agreement
(the "Program Agreement", which expression includes the same as it may be
amended, supplemented, novated or restated from time to time) dated 30th
March, 2001 with Ciba Specialty Chemicals Holding Inc. (the "Guarantor")
and the Dealers named therein under which the relevant Issuer proposes
from time to time to issue Euro Medium Term Notes (the "Notes"), which
amends and restates the amended and restated program agreement dated 16th
June, 2000 with Ciba Specialty Chemicals Corporation, Ciba Specialty
Chemicals PLC, Ciba Spezialitatenchemie Holdings Deutschland GmbH, the
Guarantor and the Dealers named therein (the "Principal Program
Agreement").
(B) Each Issuer has also entered into an amended and restated Agency
Agreement (the "Agency Agreement", which expression includes the same as
it may be amended, supplemented, novated or restated from time to time)
dated 30th March, 2001 between, inter alios, the Issuer and The Chase
Manhattan Bank (the "Agent").
(C) The Notes will initially be represented by, and comprised in, Temporary
Global Notes (the "Temporary Global Notes") and thereafter may be
represented by, and comprised in, Permanent Global Notes (the "Permanent
Global Notes" and together with the Temporary Global Notes, the "Global
Notes"), such Global Notes representing a certain number of underlying
Notes (the "Underlying Notes").
(D) Each Global Note will, after issue, be deposited with a common depository
for one or more Clearing Systems (each such Clearing System or all such
Clearing Systems together, the "Relevant Clearing System"). Upon such
deposit of a Global Note the Underlying Notes represented by such Global
Note will be credited to a securities account or securities accounts with
the Relevant Clearing System. Any account holder with the Relevant
Clearing System which has Underlying Notes credited to its securities
account from time to time (each a "Relevant Account Holder") will,
subject to and in accordance with the terms and conditions and operating
procedures or management regulations of the Relevant Clearing System, be
entitled to transfer such Underlying Notes and (subject to and upon
payment being made by the relevant Issuer to the bearer in accordance
with the terms of the relevant Global Note) will be entitled to receive
payments from the Relevant Clearing System calculated by reference to the
Underlying Notes credited to its securities account.
(E) In certain circumstances specified in each Global Note, a Global Note
will become void. The time at which a Global Note becomes void is
hereinafter referred to as the "Relevant Time". In such circumstances
each Relevant Account Holder will, subject to and in accordance with the
terms of this Deed, acquire against the relevant Issuer all those rights
which such Relevant Account Holder would have had if, prior to the Global
Note becoming void, duly executed and authenticated Definitive Note(s)
(as defined in the Agency Agreement) and, if the Notes are repayable in
instalments, receipts in respect thereof (the "Receipts") and interest
coupons
2
(the "Coupons") appertaining to the Definitive Note(s) (if appropriate)
had been issued in respect of its Underlying Note(s) and such Definitive
Notes(s), Receipts (if appropriate) and Coupons (if appropriate) were
held and beneficially owned by such Relevant Account Holder.
(F) The obligations of each Issuer under this Deed have been guaranteed by
the Guarantor pursuant to the amended and restated Deed of Guarantee (the
"Guarantee") executed by the Guarantor on 30th March, 2001 and an
executed copy of the Guarantee has been deposited with and shall be held
by the Agent for the time being for the Notes. A copy of the Guarantee
shall be available for inspection at the office of the Agent for the time
being (being at the date hereof at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇ ▇▇▇).
(G) This Deed of Covenant amends and restates the amended and restated Deed
of Covenant entered into by Ciba Specialty Chemicals Corporation, Ciba
Specialty Chemicals PLC, Ciba Spezialitatenchemie Holding Deutschland
GmbH dated 16th June, 2000. This Deed of Covenant does not affect any
Notes issued pursuant to the Principal Program Agreement prior to the
date hereof.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. If any Global Note becomes void in accordance with the terms thereof the
relevant Issuer hereby undertakes and covenants with each Relevant
Account Holder (other than when any Relevant Clearing System is an
account holder of any other Relevant Clearing System) that each Relevant
Account Holder shall automatically acquire at the Relevant Time, without
the need for any further action on behalf of any person, against the
relevant Issuer all those rights which such Relevant Account Holder would
have had if at the Relevant Time it held and beneficially owned duly
executed and authenticated Definitive Note(s), Receipts (if appropriate)
and Coupons (if appropriate) in respect of each Underlying Note
represented by such Global Note which such Relevant Account Holder has
credited to its securities account with the Relevant Clearing System at
the Relevant Time. The relevant Issuer's obligation pursuant to this
clause shall be a separate and independent obligation by reference to
each Underlying Note which a Relevant Account Holder has credited to its
securities account with the Relevant Clearing System and the relevant
Issuer agrees that a Relevant Account Holder may assign its rights
hereunder in whole or in part.
2. The records of the Relevant Clearing System shall be conclusive evidence
of the identity of the Relevant Account Holders and the number of
Underlying Notes credited to the securities account of each Relevant
Account Holder. For the purposes hereof a statement issued by the
Relevant Clearing System stating:
(i) the name of the Relevant Account Holder to which such statement is
issued; and
(ii) the aggregate nominal amount of Underlying Notes credited to the
securities account of such Relevant Account Holder as at the opening
of business on the first day following the Relevant Time on which
the Relevant Clearing System is open for business,
shall be conclusive evidence of the records of the Relevant Clearing
System at the Relevant Time.
3. In the event of a dispute, the determination of the Relevant Time by the
Relevant Clearing System shall be final and conclusive for all purposes
in connection with the Relevant Account Holders with securities accounts
with the Relevant Clearing System.
3
4.(a) Where the Issuer is Ciba Specialty Chemicals Corporation:
The Issuer will, subject to the exceptions and limitations set forth
below, pay as additional interest on an Underlying Note such additional
amounts as are necessary in order that the net amounts receivable
pursuant to the terms of the Underlying Note by each Relevant Account
Holder who is a United States Alien (as such term is defined below),
after deduction for any present or future tax, assessment or governmental
charge of the United States (as such term is defined below), or a
political subdivision or authority thereof or therein, imposed by
withholding with respect to the payment, will not be less than the
amounts provided for in such Underlying Note to be then due and payable;
provided, however, that the foregoing obligation to pay additional
amounts shall not apply to:
(i) any tax, assessment or governmental charge that would not have been
so imposed but for the existence of any present or former connection
between such Relevant Account Holder (or between a fiduciary,
settlor, beneficiary, member or shareholder of, or holder of power
over, such holder, if such Relevant Account Holder is an estate,
trust, partnership or corporation) and the United States, including,
without limitation, such Relevant Account Holder (or fiduciary,
settlor, beneficiary, member, shareholder or holder of a power)
being considered as:
(A) being or having been present or engaged in a trade or business
in the United States or having or having had a permanent
establishment therein;
(B) having a current or former relationship with the United States,
including a relationship as a citizen or resident or being
treated as a resident thereof;
(C) being or having been a personal holding company, a controlled
foreign corporation, a passive foreign investment company, a
foreign personal holding company with respect to the United
States, a corporation that has accumulated earnings to avoid
United States Federal income tax or a private foundation or
other tax-exempt organisation; or
(D) an actual or a constructive "10-per cent shareholder" of the
Issuer as defined in Section 871(h)(3) of the United States
Internal Revenue Code of 1986, as amended (the "Code");
(ii) any Relevant Account Holder who is a fiduciary or partnership or
other than the sole beneficial owner of the Underlying Note, but
only to the extent that a beneficiary or settlor with respect to
such fiduciary or member of such partnership or a beneficial owner
of the Underlying Note would not have been entitled to the payment
of an additional amount had such beneficiary, settlor, member or
beneficial owner been the Relevant Account Holder of such Underlying
Note;
(iii) any tax, assessment or governmental charge that would not have been
imposed or withheld but for the failure of the Relevant Account
Holder, if required, to comply with certification, identification or
information reporting requirements under United States income tax
laws, without regard to any tax treaty, with respect to the payment,
concerning the nationality, residence, identity or connection with
the United States of the Relevant Account Holder or a beneficial
owner of such Underlying Note, if such compliance is required by
United States income tax laws, without regard to any tax treaty, as
a precondition to relief or exemption from such tax, assessment or
governmental charge;
4
(iv) any estate, inheritance, gift, sales, transfer, excise, wealth or
personal property tax or any similar tax, assessment or governmental
charge;
(v) any tax, assessment or governmental charge that is payable otherwise
than by withholding from the payment of the amounts receivable in
respect of such Underlying Note;
(vi) any tax, assessment or governmental charge required to be withheld
by any paying agent from such payment of amounts receivable in
respect of any Underlying Note, if such payment can be made without
such withholding by any other paying agent; or
(vii) any combination of items (i), (ii), (iii), (iv), (v) or (vi).
As used in this Clause, "United States" means the United States of
America, the Commonwealth of Puerto Rico and each possession of the
United States of America and place subject to its jurisdiction and
"United States Alien" means any corporation, partnership, individual or
fiduciary that, as to the United States, is for United States Federal
income tax purposes (A) a foreign corporation, (B) a foreign partnership
one or more of the members of which is, for United States Federal income
tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust, (C) a
non-resident alien individual or (D) a non-resident alien fiduciary of a
foreign estate or trust.
(b) Where the Issuer is Ciba Spezialitatenchemie Holding Deutschland GmbH:
All payments in respect of the Underlying Note by the Issuer will be made
without withholding or deduction for or on account of any present or
future taxes or duties of whatever nature imposed or levied by or on
behalf of Germany or any state (Bundesland), municipality or other
political subdivision or any authority thereof or therein having power to
tax, unless such withholding or deduction is required by law. In such
event, the Issuer will pay such additional amounts as shall be necessary
in order that the net amounts received by the Relevant Account Holders
after such withholding or deduction shall equal the amounts which would
otherwise have been receivable in respect of the Underlying Note in the
absence of such withholding or deduction; except that no such additional
amounts shall be payable with respect to any Underlying Note to or to the
order of a Relevant Account Holder who is liable for such taxes or duties
in respect of such Underlying Note by reason of his having some
connection with Germany other than the mere holding of such Underlying
Note or with respect to any Underlying Note presented for payment to a
paying agent which is required to deduct or withhold an amount for or on
account of such taxes or duties if such amount can be paid without any
deduction or withholding for or on account of any taxes or duties by any
other paying agent. Any advance income tax (Zinsabschlagsteuer) levied in
Germany since 1993 as well as the solidarity surcharge
(Solidaritatszuschlag) imposed thereon since 1995 do not constitute a
withholding or deduction within the meaning of this Clause 4(b).
(c) Where the Issuer is Ciba Specialty Chemicals PLC:
All payments by the Issuer in respect of the Underlying Notes shall be
made without withholding or deduction for or on account of any present or
future tax, duty or charge of whatever nature imposed or levied by or on
behalf of the United Kingdom, or any authority thereof or therein having
power to tax unless the withholding or deduction is required by law. In
that event, the Issuer shall pay such additional amounts as will result
(after such withholding or deduction) in the receipt by the Relevant
Account Holders of the sums which would have been receivable (in the
absence of such withholding or deduction) from the Issuer in respect of
their Underlying Notes; except that no such additional amounts shall be
payable
5
with respect to any Underlying Note to or to the order of a person liable
to such tax, duty or charge in respect of such Underlying Note by reason
of his having some connection with the United Kingdom other than the mere
holding or ownership of such Underlying Note or with respect to any
Underlying Note presented for payment to a paying agent which is required
to deduct or withhold an amount for or on account of such tax, duty or
charge if such amount can be paid without any deduction or withholding
for or on account of any tax, duty or charge by any other paying agent.
5. Each Issuer hereby warrants, represents and covenants with each Relevant
Account 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 Deed, and that this Deed constitutes a legal, valid and
binding obligation of the relevant Issuer enforceable in accordance with
its terms subject to the laws of bankruptcy and other laws affecting the
rights of creditors generally.
6. This Deed shall take effect as a Deed Poll for the benefit of the
Relevant Account Holders from time to time and for the time being. This
Deed shall be deposited with and held by a depository for Clearstream,
Luxembourg and Euroclear, or any successor to the business thereof and
for the time being (being at the date hereof The Chase Manhattan Bank at
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇) until all the
obligations of each Issuer hereunder have been discharged in full.
7. Each Issuer hereby acknowledges the right of every Relevant Account
Holder to the production of, and the right of every Relevant Account
Holder to obtain (upon payment of a reasonable charge) a copy of, this
Deed, 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 Relevant Account Holder, and that each Relevant Account
Holder shall be entitled severally to enforce the said obligations
against the relevant Issuer.
8. No rights are conferred on any person under the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Deed, but this does
not affect any right or remedy of any person which exists or is available
apart from that Act.
9. This Deed is governed by, and shall be construed in accordance with, the
laws of England.
Each Issuer hereby irrevocably agrees, for the exclusive benefit of the
Relevant Account Holders, that the courts of England are to have
jurisdiction to settle any dispute which may arise out of, or in
connection with, this Deed and that accordingly any suit, action or
proceedings (together referred to as "Proceedings") arising out of, or in
connection with, this Deed may be brought in such courts. Each Issuer
irrevocably waives any objection which it may have now or hereafter to
the laying of the venue of any Proceedings in any such court and any
claim that any such Proceedings have been brought in an inconvenient
forum and further irrevocably agrees that a judgment in any Proceedings
brought in the English courts shall be conclusive and binding upon the
relevant Issuer 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 Issuer in any other court of
competent jurisdiction, 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). Ciba Specialty Chemicals Corporation and Ciba
Spezialitatenchemie Holding Deutschland GmbH each hereby appoints Ciba
Specialty Chemicals PLC at its registered office for the time being to
accept service of process on its behalf. If Ciba Specialty Chemicals PLC
shall cease to be registered under the laws of England and Wales, the
relevant Issuer shall appoint another
6
person with an office in London to accept such service. Nothing herein
shall affect the right to serve process in any other manner permitted by
law.
10. This Deed 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.
IN WITNESS whereof each Issuer has caused this Deed to be duly executed the
day and year first above mentioned.
7
EXECUTED as a Deed under )
Seal by CIBA SPECIALTY CHEMICALS )
CORPORATION )
and SIGNED and )
DELIVERED as a deed on its )
behalf by ) ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of: )
Witness's
Signature .........................................▇. ▇▇▇▇▇▇▇
Name .........................................▇▇▇▇▇ ▇▇▇▇▇▇▇
Address .........................................c/o CIBA SPECIALTY CHEMICALS
INC
.........................................
EXECUTED as a Deed under )
Seal by CIBA SPECIALTY CHEMICALS )
PLC and SIGNED and DELIVERED as )
a deed on its behalf by ) ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of: )
Witness's
Signature .........................................▇. ▇▇▇▇▇▇▇
Name .........................................▇▇▇▇▇ ▇▇▇▇▇▇▇
Address .........................................c/o CIBA SPECIALTY CHEMICALS
INC
.........................................
8
EXECUTED as a Deed under )
Seal by CIBA SPEZIALITATENCHEMIE )
HOLDING DEUTSCHLAND GMBH )
and SIGNED and DELIVERED as )
a deed on its behalf by ) ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
)
in the presence of: )
Witness's
Signature .........................................▇. ▇▇▇▇▇▇▇
Name .........................................▇▇▇▇▇ ▇▇▇▇▇▇▇
Address .........................................c/o CIBA SPECIALTY CHEMICALS
INC
.........................................
