Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF MAY 7, 2001
to
INDENTURE
dated as of May 1, 2001
between
INTERNATIONAL FLAVORS & FRAGRANCES INC.
and
Bank One Trust Company, N.A.,
as Trustee
FIRST SUPPLEMENTAL INDENTURE, dated as of May 7, 2001 (this
"First Supplemental Indenture"), to the Indenture, dated as of May 1, 2001 (the
"Original Indenture"), between INTERNATIONAL FLAVORS & FRAGRANCES INC, a New
York corporation (the "Company"), and Bank One Trust Company, N.A. (the
"Trustee").
WHEREAS, the Company and the Trustee have heretofore executed
and delivered the Original Indenture to provide for the issuance from time to
time of Securities (as defined in the Original Indenture) of the Company, to be
issued in one or more series;
WHEREAS, Sections 2.01 and 9.01 of the Original Indenture
provide, among other things, that the Company and the Trustee may enter into
indentures supplemental to the Original Indenture for, among other things, the
purpose of establishing the designation, form, terms and conditions of
Securities of any series as permitted by Sections 2.01 and 9.01 of the Original
Indenture;
WHEREAS, the Company (i) desires the issuance of a series of
Securities to be designated as hereinafter provided and (ii) has requested the
Trustee to enter into this First Supplemental Indenture for the purpose of
establishing the designation, form, terms and conditions of the Securities of
such series;
WHEREAS, the Company has duly authorized the creation of an
issue of its (1) 6.45% Notes due 2006 (the "Original Series A Notes") and (2)
its 6.45% Notes due 2006 to be issued in exchange for the Original Series A
Notes (the "Exchange Notes" and collectively with the Original Series A Notes,
the "Series A Notes," which expression includes any further notes issued
pursuant to Section 2.4 hereof and forming a single series therewith) of
substantially the tenor and amount hereinafter set forth. The Original Series A
Notes and the Exchange Notes shall rank pari passu; and
WHEREAS, all action on the part of the Company necessary to
authorize the issuance of the Series A Notes under the Original Indenture and
this First Supplemental Indenture (the Original Indenture, as supplemented by
this First Supplemental Indenture, being hereinafter called the "Indenture") has
been duly taken.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That, in order to establish the designation, form, terms and
conditions of, and to authorize the authentication and delivery of, the Series A
Notes, and in consideration of the acceptance of the Series A Notes by the
Holders thereof and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
(a) Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings ascribed thereto in the Original
Indenture.
(b) The rules of interpretation set forth in the Original
Indenture shall be applied hereto as if set forth in full herein.
(c) For all purposes of this First Supplemental Indenture,
except as otherwise expressly provided or unless the context otherwise requires,
the following terms shall have the following respective meanings (such meanings
shall apply equally to both the singular and plural forms of the respective
terms):
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of DTC, Euroclear and Clearstream that apply to such transfer or
exchange.
"Clearstream" means Clearstream Banking, societe anonyme.
"Closing Date" means the day on which the Closing Date for the
Original Series A Notes occurs pursuant to the Purchase Agreement.
"Commission" means the U.S. Securities and Exchange
Commission, as from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under applicable law, then the body performing such duties at such time.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Reference Treasury Dealer as having a maturity
comparable to the remaining term of the Series A Notes to be redeemed that would
be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt notes of comparable maturity
to the remaining term of the Series A Notes.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (A) the average of the Reference Treasury Dealer Quotations for
the Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations or (B) if the Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such Quotations or (C)
if only one Reference Treasury Dealer Quotation is received, such quotation.
"Definitive Note" means a Series A Note in definitive
registered form without coupons.
"DTC" has the meaning set forth in Section 2.9 hereof.
"DTC Legend" means the legend set forth in Section 3.6(d),
which is required to be placed on all Global Notes, for which DTC is acting as
the Depositary, issued under this Indenture.
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"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System.
"Exchange Notes" means the Series A Notes issued pursuant to
the Exchange Offer.
"Exchange Offer" means the Exchange Offer as defined in the
Registration Rights Agreement.
"Global Note Legend" means the legend set forth in Section
3.6(c), which is required to be place on all Global Notes issued under this
Indenture.
"Global Notes" means, individually and collectively, each of
the Restricted Global Notes, the Registration S Global Notes and the
Unrestricted Global Notes, substantially in the form of Exhibit A hereto, issued
in accordance with Section 2.11 of the Original Indenture and Section 2.7
hereof.
"Initial Purchasers" has the meaning set forth in the Purchase
Agreement.
"Interest Payment Date" has the meaning set forth in Section
2.5 hereof.
"Lead Manager" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
"Original Series A Notes" means all Series A Notes, other than
Exchange Notes.
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear or
Clearstream).
"Private Placement Legend" means the legend set forth in
Section 3.6(a) hereof.
"Purchase Agreement" means the Purchase Agreement, dated as of
May 2, 2001, by and among the Company and the parties named on the signature
page thereof, in their respective capacities as Initial Purchasers and as
representatives of each of the other Initial Purchasers named in Schedule I
thereto, as such agreement may be amended, modified or supplemented from time to
time.
"Record Date" has the meaning set forth in Section 2.5 hereof.
"Redemption Price" has the meaning set forth in Section 2.10
hereof.
"Reference Treasury Dealer Quotation" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
(New York City time) on the third Business Day preceding the Redemption Date.
"Reference Treasury Dealers" means (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc. or any of the other Initial Purchasers (or their respective affiliates
which are Primary Treasury Dealers), and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
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Company will substitute therefor another Primary Treasury Dealer; and (B) any
other Primary Treasury Dealer(s) selected by the Trustee after consultation with
the Company.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of May 7, 2001, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time, relating to rights given by the
Company to the purchasers of the Original Series A Notes to register such notes,
or exchange such notes for Exchange Notes, under the Securities Act.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" has the meaning set forth in
Section 2.7 hereof.
"Regulation S Legend" means the legend set forth in Section
3.6(b), which is required to be placed on all Regulation S Notes (and all Series
A Notes issued in exchange therefor or substitution thereof) issued under this
Indenture.
"Restricted Global Note" has the meaning set forth in Section
2.7 hereof.
"Restricted Notes" has the meaning specified in Section 2.7
hereof.
"Restricted Period" has the meaning set forth in Section 2.7
hereof.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Securities Act" means the U.S. Securities Act of 1933 and
(unless the context otherwise requires) includes the rules and regulations of
the Commission promulgated thereunder.
"Series A Note" has the meaning set forth in Section 2.1
hereof.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Unrestricted Global Note" has the meaning set forth in
Section 2.7 hereof.
"Unrestricted Notes" has the meaning set forth in Section 2.7
hereof.
ARTICLE II
DESIGNATION AND TERMS OF
THE SECURITIES
SECTION 2.1 Title and Aggregate Principal Amount. There is
hereby created one series of Securities designated: 6.45 % Notes due 2006 (the
"Series A Notes").
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SECTION 2.2 Execution. The Series A Notes may forthwith be
executed by the Company and delivered to the Trustee for authentication and
delivery by the Trustee in accordance with the provisions of Section 2.04 of the
Original Indenture.
SECTION 2.3 Other Terms and Form of the Series A Notes. The
Series A Notes shall have and be subject to such other terms as provided in the
Indenture and shall be evidenced by one or more Global Notes in the form of
Exhibit A hereof and as set forth in Section 2.7 hereof.
SECTION 2.4 Further Issues. The Company may from time to time,
without the consent of the Holders of the Series A Notes and in accordance with
the Original Indenture and this Supplemental Indenture, create and issue further
notes having the same terms and conditions as the Series A Notes in all respects
(or in all respects except for the first payment of interest) so as to form a
single series with the Series A Notes.
SECTION 2.5 Interest and Principal. The Series A Notes will
mature on May 15, 2006 and will bear interest at the rate of 6.45 % per annum.
The Company will pay interest on the Series A Notes on each May 15 and November
15 (the "Interest Payment Dates"), beginning on November 15, 2001, to the
holders of record on the immediately preceding April 1 or October 1 (the "Record
Date"). Interest on the Series A Notes shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance. Payments of the principal of and interest on the Series A Notes shall
be made in U.S. Dollars, and the Series A Notes shall be denominated in U.S.
Dollars.
SECTION 2.6 Place of Payment. The place of payment where the
Series A Notes may be presented or surrendered for payment, where the principal
of and interest and any other payments due on the Series A Notes are payable,
where the Series A Notes may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Company in respect of the
Series A Notes and the Indenture may be served shall be in the Borough of
Manhattan, The City of New York, and the office or agency maintained by the
Company for such purpose shall initially be the Corporate Trust Office of the
Trustee.
SECTION 2.7 (a) Regulation S and Unrestricted Notes. Original
Series A Notes offered and sold in their initial distribution in reliance on
Regulation S shall be initially issued in the form of one or more Global Notes
in definitive, fully registered form without interest coupons, substantially in
the form of the Series A Note set forth in Exhibit A hereof, with such
applicable legends as are provided for in Section 3.6, except as otherwise
permitted herein. Such Global Notes shall be registered in the name of the
Depositary or its nominee and deposited with the Trustee, at its Corporate Trust
Office, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as provided in the Original Indenture, for credit
to the respective accounts at the Depositary of the depositories for Euroclear
or for Clearstream. Until such time as the Restricted Period (as defined below)
shall have terminated, such Global Notes shall be referred to herein
collectively as the "Regulation S Global Note." After such time as the
Restricted Period shall have terminated, such Global Notes shall be referred to
herein collectively as the "Unrestricted Global Notes." The aggregate principal
amount of the Regulation S Global Note or the Unrestricted Global Note may from
time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary, in connection with a corresponding
decrease or increase in the aggregate principal amount of the Restricted Global
Note, as provided herein. As used herein, the term "Restricted Period" means the
period of 40 consecutive days beginning on and including the first day after the
later of (i) the day that the Lead Manager advises the Company and the Trustee
is the day on which the Series A
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Notes are first offered to persons other than distributors (as defined in
Regulation S) in reliance on Regulation S and (ii) the Closing Date. The
Regulation S Global Note, the Unrestricted Global Note and all other Series A
Notes that are not Restricted Notes shall collectively be referred to herein as
the "Unrestricted Notes."
(b) Restricted Notes. Original Notes offered and sold in their
initial distribution in reliance on Rule 144A shall be issued in the form of one
or more Global Notes (collectively, the "Restricted Global Note") in definitive,
fully registered form without interest coupons, substantially in the form of the
Series A Note set forth in Exhibit A hereof, with such applicable legends as are
provided for in Section 3.6, except as otherwise permitted herein. Such Global
Note shall be registered in the name of the Depositary or its nominee and
deposited with the Trustee, at its Corporate Trust Office, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
provided in the Original Indenture. The aggregate principal amount of the
Restricted Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depositary,
in connection with a corresponding decrease or increase in the aggregate
principal amount of the Regulation S Global Note or the Unrestricted Global
Note, as provided herein. The Restricted Global Note and all other Series A
Notes evidencing the debt, or any portion of the debt, initially evidenced by
such Note, other than Series A Notes transferred or exchanged upon certification
as provided in Sections 3.1 or 3.2, shall collectively be referred to herein as
the "Restricted Notes."
SECTION 2.8 Euroclear and Clearstream Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear System," the
"General Terms and Conditions of Clearstream Banking" and the "Customer
Handbook" of Clearstream, in each case, as in effect from time to time, shall be
applicable to transfers of beneficial interests in Global Notes sold pursuant to
the exemption to the registration requirements of the Securities Act afforded by
Regulation S and that are held by Participants through Euroclear or Clearstream.
SECTION 2.9 Depositary; Registrar. The Company initially
appoints The Depository Trust Company ("DTC") to act as Depositary with respect
to the Global Notes. The Company initially appoints the Trustee to act as the
Security Registrar and the paying agent and designates the Trustee's New York
office as the office or agency referred to in Section 2.05(b) of the Original
Indenture.
SECTION 2.10 Redemption. The Company at its option may, at any
time, redeem the Series A Notes, in whole or in part, upon payment of a
redemption price equal to (A) the greater of (i) 100% of the principal amount of
the Series A Notes to be redeemed on the Redemption Date and (ii) the sum of the
present values of the remaining scheduled payments of principal and interest on
the Series A Notes being redeemed on that Redemption Date (not including any
portion of any payment of interest accrued to the Redemption Date) discounted to
the Redemption Date on a semiannual basis at the Treasury Rate, plus 25 basis
points, as determined by the Reference Treasury Dealers, plus (B) in each case,
accrued and unpaid interest on the Series A Notes to the redemption date (the
"Redemption Price"). Notwithstanding the foregoing, installments of interest on
Series A Notes that are due and payable on Interest Payment Dates falling on or
prior to a Redemption Date will be payable on the Interest Payment Date to the
Holders as of the close of business on the relevant Record Date . The Redemption
Price shall be calculated on the basis of a 360-day year consisting of twelve
30-day months.
SECTION 2.11 Sinking Fund. The Series A Notes shall not be
redeemable at the option of any Holder thereof, upon the occurrence of any
particular circumstances or otherwise. The Series A Notes will not have the
benefit of any sinking fund.
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ARTICLE III
TRANSFER AND EXCHANGE
SECTION 3.1 Transfer of Beneficial Interest in a Restricted
Global Note to Regulation S Global Note. If the Holder of a beneficial interest
in the Restricted Global Note wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial interest
in the Regulation S Global Note, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with the provisions of this Section
3.1. Upon receipt by the Trustee, as Security Registrar, of (A) written
instructions given in accordance with the Applicable Procedures from a DTC
Participant directing the Trustee to credit or cause to be credited to a
specified DTC Participant's account a beneficial interest in the Regulation S
Global Note in a principal amount equal to that of the beneficial interest in
the Regulation S Global Note to be so transferred, (B) a written order given in
accordance with the Applicable Procedures containing information regarding the
account of the DTC Participant (and the Euroclear or Clearstream account, as the
case may be) to be credited with, and the account of the DTC Participant to be
debited for, such beneficial interest and (C) a certificate in substantially the
form set forth in Annex A given by the Holder of such beneficial interest, the
principal amount of the Restricted Global Note shall be reduced, and the
principal amount of the Regulation S Global Note shall be increased, by the
principal amount of the beneficial interest in the Restricted Global Note to be
so transferred, in each case by means of any appropriate adjustment on the
records of the Trustee, as Security Registrar, shall instruct the Depositary or
its authorized representative to make a corresponding adjustment to its records
and to credit or cause to be credited to the account of the Person specified in
such instructions (which shall be the DTC Participant for Euroclear or
Clearstream or both, as the case may be) a beneficial interest in the Regulation
S Global Note having a principal amount equal to the amount so transferred.
SECTION 3.2 Transfer of Beneficial Interest in a Restricted
Global Note to Unrestricted Global Note. If the Holder of a beneficial interest
in the Restricted Global Note wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial interest
in the Unrestricted Global Note, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this Section 3.2. Upon receipt by
the Trustee, as Security Registrar, of (A) written instructions given in
accordance with the Applicable Procedures from a DTC Participant directing the
Trustee to credit or cause to be credited to a specified DTC Participant's
account a beneficial interest in the Unrestricted Global Note to be so
transferred, (B) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the DTC Participant
(and, if applicable, the Euroclear or Clearstream account, as the case may be)
to be credited with, and the account of the DTC Participant to be debited for,
such beneficial interest and (C) a certificate in substantially the form set
forth in Annex B given by the Holder of such beneficial interest, the principal
amount of the Restricted Global Note shall be reduced, and the principal amount
of the Regulation S Global Note shall be increased, by the principal amount of
the beneficial interest in the Restricted Global Note to be so transferred, in
each case by means of an appropriate adjustment on the records of the Trustee,
as Security Registrar, and the Trustee, as Security Registrar, shall instruct
the
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Depositary or its authorized representative to make a corresponding adjustment
to its records and to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the Regulation S
Global Note having a principal amount equal to the amount so transferred.
SECTION 3.3 Transfer of Beneficial Interest in a Regulation S
Global Note or Unrestricted Global Security to Restricted Global Note. If the
Holder of a beneficial interest in the Regulation S Global Note or the
Unrestricted Global Note wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial interest
in the Restricted Global Note, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this Section 3.3. Upon receipt by
the Trustee, as Security Registrar, of (A) written instructions given in
accordance with the Applicable Procedures from a DTC Participant directing the
Trustee to credit or cause to be credited to a specific DTC Participant's
account a beneficial interest in the Restricted Global Note in a principal
amount equal to that of the beneficial interest in the Regulation S Global Note
or the Unrestricted Global Note to be so transferred, (B) a written order given
in accordance with the Applicable Procedures containing information regarding
the account of the DTC Participant to be credited with, and the account of the
DTC Participant (and, if applicable, the Euroclear or Clearstream account, as
the case may be) to be debited for, such beneficial interest and (C) with
respect to a transfer of a beneficial interest in the Regulation S Global Note
(but not the Unrestricted Global Note), a certificate in substantially the form
set forth in Annex C given by the Holder of such beneficial interest, the
principal amount of the Restricted Global Note shall be increased, by the
principal amount of the beneficial interest in the Restricted Global Note to be
so transferred, in each case by means of an appropriate adjustment on the
records of the Trustee, as Security Registrar, and the Trustee, as Security
Registrar, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records and to credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the Regulation S Global Note having a principal amount
equal to the amount so transferred.
SECTION 3.4 Exchanges of Global Note for Non Global Note. In
the event that a Global Note or any portion thereof is exchanged for Series A
Notes other than Global Notes pursuant to Section 2.11 of the Original
Indenture, such other Notes may in turn be exchanged (on transfer or otherwise)
for Series A Notes that are not Global Notes or for beneficial interests in a
Global Note (if any is then Outstanding) only in accordance with such
procedures, which shall be substantially consistent with the provisions of
Sections 3.1, 3.2, 3.3 and 3.5 below (including the certification requirements
intended to insure that transfers and exchanges of beneficial interests in a
Global Note comply with Rule 144A, Rule 144 or Regulation S, as the case may be)
and any Applicable Procedures, as may be from time to time adopted by the
Company and the Trustee.
SECTION 3.5 Interests in Regulation S Global Note to be Held
Through Euroclear or Clearstream. Until the termination of the Restricted
Period, interests in the Regulation S Global Note may be held only through DTC
Participants acting for and on behalf of Euroclear and Clearstream, provided
that this Section 3.5 shall not prohibit any transfer in accordance with Section
3.3 hereof.
SECTION 3.6 Legends. The following legends shall, as indicated
below, appear on the face of Series A Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(a) Private Placement Legend.
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(1) Except as permitted by subparagraph (2) below,
each Restricted Note (and all Series A Notes issued in exchange
therefor or substitution thereof) shall bear a legend in substantially
the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH EITHER THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR
(E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE COMPANY AND THE TRUSTEE PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
(2) Exchange Notes shall not bear the Private
Placement Legend. The Private Placement Legend required for a
Restricted Note may be removed from a Series A Note if there is
delivered to the Company such satisfactory evidence, which may include
an opinion of independent counsel licensed to practice law in the State
of New York, as may be reasonably required by the Company that neither
such legend nor the restrictions on transfer set forth therein are
required to ensure that transfers of such Series A will not violate the
registration requirements of the Securities Act. Upon provision of such
satisfactory evidence, the Trustee, at the direction of the Company,
shall authenticate and deliver in exchange for such Series A Note
another Series A Note or Series A Notes having an equal aggregate
principal amount that does not bear such legend. If such a legend
required for a Restricted Note has been removed from a Series A Note as
provided above, it shall not be a Restricted Note and no other Series A
Note issued in exchange for all or any part of such Series A Notes
shall bear such legend, unless the Company has reasonable cause to
believe that such other Series A Note is a "restricted security" within
the
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meaning of Rule 144 and instructs the Trustee to cause a legend to
appear thereon.
(b) Regulation S Legend. Each Regulation S Note (and
all Series A Notes issued in exchange therefor or substitution thereof) shall
bear a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD OR
DELIVERED IN THE UNITED STATES OR TO, OR FOR THE BENEFIT OF, ANY U.S. PERSONS
UNLESS THIS SECURITY HAS BEEN REGISTERED UNDER THE SECURITIES ACT OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.
THIS SECURITY MAY NOT LAWFULLY BE OFFERED OR SOLD TO PERSONS IN THE UNITED
KINGDOM EXCEPT IN CIRCUMSTANCES WHICH DO NOT RESULT IN AN OFFER TO THE PUBLIC IN
THE UNITED KINGDOM WITHIN THE MEANING OF THE PUBLIC OFFERS OF SECURITIES
REGULATIONS 1995 (THE "REGULATION S") AND WHICH ARE OTHERWISE IN COMPLIANCE WITH
ALL APPLICABLE PROVISIONS OF THE REGULATIONS.
(c) Global Note Legend. Each Global Note shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE ORIGINAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.11(c) OF THE ORIGINAL
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.08 OF THE ORIGINAL INDENTURE AND (IV) EXCEPT
AS OTHERWISE PROVIDED IN SECTION 2.11 OF THE ORIGINAL INDENTURE, THIS SECURITY
MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO ANOTHER NOMINEE OF THE
DEPOSITARY OR TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY."
(d) DTC Legend. Each Global Note for which DTC is
acting as the Depositary shall bear a legend in the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CEDE &
CO., AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
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WRONGFUL BECAUSE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
SECTION 3.7 Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section
2.08 of the Original Indenture. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary at the direction of
the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
ARTICLE IV
DEFEASANCE
SECTION 4.1 Defeasance and Covenant Defeasance. Section 11.02
of the Original Indenture shall be applicable to the Series A Notes.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Execution of Supplemental Indenture. This First
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this First Supplemental Indenture forms a part thereof.
SECTION 5.2 Concerning the Trustee. The recitals contained
herein and in the Series A Notes, except with respect to the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this First
Supplemental Indenture or of the Series A Notes.
SECTION 5.3 Counterparts. This First Supplemental Indenture
may be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
SECTION 5.4 GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE
AND EACH NOTE OF THE SERIES CREATED HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized as of the date first above written.
INTERNATIONAL FLAVORS & FRAGRANCES INC.
By: ___________________________
Name: ___________________________
Title: ___________________________
BANK ONE TRUST COMPANY, N.A., as Trustee
By: ___________________________
Name: ___________________________
Title: ___________________________
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