CONFORMED COPY
AGENCY AGREEMENT
IN RESPECT OF A U.S.$2,000,000,000
EURO MEDIUM TERM NOTE PROGRAM
(AMENDED AND RESTATED)
DATED 27TH MARCH, 2003
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
AS ISSUERS
AND
CIBA SPECIALTY CHEMICALS HOLDING INC.
AS GUARANTOR
AND
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK
AS AGENT
▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A.
AS PAYING AGENT
[▇▇▇▇▇ & ▇▇▇▇▇ LOGO]
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.......................................2
2. Appointment of Agent and Paying Agents...............................7
3. Issue of Temporary Global Notes......................................8
4. Determination of Exchange Date, Issue of Permanent Global Notes
and Definitive Notes and Determination of End of Distribution
Compliance Period....................................................9
5. Issue of Definitive Notes...........................................10
6. Terms of Issue......................................................10
7. Payments............................................................11
8. Determinations and Notifications in respect of Notes and Interest
Determination.......................................................13
9. Notice of any Withholding or Deduction..............................15
10. Duties of the Agent in Connection with Early Redemption.............15
11. Receipt and Publication of Notices..................................16
12. Cancellation of Notes, Receipts, Coupons and Talons.................16
13. Issue of Replacement Notes, Receipts, Coupons and Talons............17
14. Copies of Documents available for Inspection........................18
15. Meetings of Noteholders.............................................19
16. Commissions and Expenses............................................19
17. Indemnity...........................................................19
18. Repayment by the Agent..............................................20
19. Conditions of Appointment...........................................20
20. Communication between the Parties...................................21
21. Changes in Agent and other Paying Agents............................21
22. Merger and Consolidation............................................23
23. Notification of Changes to Paying Agents............................23
24. Change of Specified Office..........................................23
25. Notices.............................................................23
26. Taxes and Stamp Duties..............................................24
27. Currency Indemnity..................................................24
28. Amendments..........................................................24
29. Descriptive Headings................................................25
30. Contracts (Rights of Third Parties) Act 1999........................25
31. Governing Law and Submission to Jurisdiction........................25
32. Counterparts........................................................25
APPENDIX
1. Form of Calculation Agency Agreement................................26
SCHEDULES
1. Terms and Conditions of the Notes...................................35
2. Forms of Global and Definitive Notes, Receipts, Coupons and Talons..58
Part 1 Form of Temporary Global Note.................................58
Part 2 Form of Permanent Global Note.................................71
Part 3 Form of Definitive Note.......................................80
Part 4 Form of Coupon................................................83
Part 5 Form of Receipt...............................................86
Part 6 Form of Talon.................................................88
3. Form of Deed of Guarantee...........................................91
4. Provisions for Meetings of Noteholders..............................95
5. Form of Put Notice.................................................102
6. Operating & Administrative Procedures Memorandum..................104
Signatories..............................................................127
AGENCY AGREEMENT
IN RESPECT OF A
EURO MEDIUM TERM NOTE PROGRAM
THIS AGREEMENT is made on 27th March, 2003 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 EUROFINANCE LTD. of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇▇▇);
(5) CIBA SPECIALTY CHEMICALS HOLDING INC. of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the GUARANTOR);
(6) JPMORGAN CHASE BANK of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(the AGENT, which expression shall include any successor agent appointed
in accordance with Clause 21); and
(7) ▇.▇. ▇▇▇▇▇▇ 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, CIBA Bermuda (each an ISSUER and together,
the ISSUERS) and the Guarantor have entered into an amended and restated
program agreement dated 27th March, 2003 (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, CIBA Bermuda and
the Guarantor dated 27th March, 2002 with the Dealers named therein.
(B) CIBA US, CIBA UK, CIBA Germany, CIBA Bermuda, the Guarantor, the Agent and
the Paying Agents entered into an amended and restated Agency Agreement
(the PRINCIPAL AGENCY AGREEMENT) dated 27th March, 2002 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
1.1 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.
1.2 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:
(a) if appertaining to a Fixed Rate Note, in the form or substantially
in the form set out in Part 4 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
(b) if appertaining to a Floating Rate Note or an Indexed Interest Note,
in the form or substantially in the form set out in Part 4 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
(c) 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
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 3 of
Schedule 2 with such modifications (if any) as may be agreed between the
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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;
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
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interest, which may or may not be the Issue Date (but if no date is
specified shall be the Issue Date);
ISDA DEFINITIONS means 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, Canadian dollars,
Czech koruna, Danish kroner, euro, Hong Kong dollars, Japanese Yen, New
Zealand dollars, Norwegian kroner, 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 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
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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:
(a) the right to attend and vote at any meeting of the Noteholders or
any of them; and
(b) 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;
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;
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 5 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 subclause 8.2(a)(i) below, those
banks whose offered rates were used to determine such quotation when such
quotation last appeared on the
5
Relevant Screen Page and, in the case of subclause 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 6 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 1 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.
1.3 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.
1.4 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.
1.5 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.
1.6 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).
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1.7 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).
1.8 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.
1.9 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.
1.10 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
2.1 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;
(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
7
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.
2.2 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.
2.3 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.
3. ISSUE OF TEMPORARY GLOBAL NOTES
3.1 Subject to subclause 3.2 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 for 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.
8
3.2 The Agent shall only be required to perform its obligations under
subclause 3.1 above if it holds:
(a) a master Temporary Global Note 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 subclause 3.1(a) above; and
(b) a master Permanent Global Note 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.
4. DETERMINATION OF EXCHANGE DATE, ISSUE OF PERMANENT GLOBAL NOTES AND
DEFINITIVE NOTES AND DETERMINATION OF END OF DISTRIBUTION COMPLIANCE
PERIOD
4.1 (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 2 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.
4.2 (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
9
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 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
5.1 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 2 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).
5.2 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
6.1 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.
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6.2 Subject to the procedures set out in the Procedures Memorandum, for the
purposes of subclause 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
pursuant to, subclause 19.7 as sufficient instructions and authority of
such Issuer and/or the Guarantor for the Agent to act in accordance with
subclause 3.1.
6.3 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 subclause 3.1
ceases to be authorised as described in subclause 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.
6.4 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).
6.5 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
7.1 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.
7.2 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 subclause 7.1, the Agent shall
11
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.
For the purposes of this clause ▇▇▇▇▇▇▇▇ ▇▇▇ means a day which is both:
(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.
7.3 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.
7.4 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 subclause 7.1 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.
7.5 If for any reason the Agent considers in its sole discretion that the
amounts to be received by the Agent pursuant to subclause 7.1 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.
7.6 Without prejudice to subclauses 7.4 and 7.5, 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 subclause 7.1 (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 subclause 7.1, 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.
7.7 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 Notes can be made on the due date of a payment in respect
of the Notes, that the Agent does not
12
expect to receive sufficient funds to make payment of all amounts falling
due in respect of such Notes.
7.8 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.
7.9 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.
7.10 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
8.1 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 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
13
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.
8.2 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
subclause 8.2(a)(i) above, no such offered quotation appears or, in the
case of subclause 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.
(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
14
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
10.1 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
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.
10.2 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.
10.3 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.
10.4 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
15
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
11.1 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.
11.2 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.
12. CANCELLATION OF NOTES, RECEIPTS, COUPONS AND TALONS
12.1 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.
12.2 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
16
(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.
12.3 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.
12.4 Without prejudice to the obligations of the Agent pursuant to subclause
12.2, 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.
12.5 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
13.1 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.
13.2 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.
13.3 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.
13.4 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;
17
(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.
13.5 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 subclause 12.3.
13.6 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 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.
13.7 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.
13.8 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.
13.9 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
14.1 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.
14.2 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.
18
15. MEETINGS OF NOTEHOLDERS
15.1 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.
15.2 Without prejudice to subclause 15.1, 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.
16. COMMISSIONS AND EXPENSES
16.1 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.
16.2 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.
16.3 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
17.1 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.
17.2 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
19
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.
19. CONDITIONS OF APPOINTMENT
19.1 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 subclause 19.2 below; and
(c) that it shall not be liable to account to any Issuer or the
Guarantor for any interest thereon.
19.2 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.
19.3 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.
19.4 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.
19.5 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.
19.6 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
20
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.
19.7 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 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
21.1 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; and
(d) 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 relevant Directive.
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.
21.2 The Agent may (subject as provided in subclause 21.4 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.
21.3 The Agent may (subject as provided in subclause 21.4 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.
21
21.4 Any resignation under subclause 21.2 or removal under subclauses 21.3 or
21.5 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
subclause 21.2, 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 institution of good standing which the Issuer and the
Guarantor shall approve (such approval not to be unreasonably withheld or
delayed).
21.5 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.
21.6 Subject to subclause 21.1, 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).
21.7 Subject to subclause 21.1, 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.
21.8 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.
21.9 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
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 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
25.1 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.
23
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.
25.2 A copy of any notice served in accordance with subclause 25.1 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
24
incorporated or (ii) in any manner which the parties may mutually deem
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
31.1 This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
31.2 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, CIBA Bermuda 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.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
25
APPENDIX 1
FORM OF CALCULATION AGENCY AGREEMENT
CALCULATION AGENCY AGREEMENT
DATED [ ], 2[ ]
[CIBA SPECIALTY CHEMICALS PLC/
CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
AS ISSUER
- AND -
CIBA SPECIALTY CHEMICALS HOLDING INC.
AS GUARANTOR
U.S. $2,000,000,000
EURO MEDIUM TERM NOTE PROGRAM
[▇▇▇▇▇ & ▇▇▇▇▇ LOGO]
LONDON
26
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/CIBA SPECIALTY CHEMICALS EUROFINANCE LTD. of Cedar House, 41 Cedar
Avenue, ▇▇▇▇▇▇▇▇ HM12, Bermuda] (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 27th March, 2003 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 27th March, 2003
and entered into between the Issuer, the Guarantor, such other
subsidiaries, JPMorgan Chase 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.
27
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
4.1 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.
4.2 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
5.1 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).
5.2 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.
5.3 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.
5.4 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.
5.5 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
28
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
6.1 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.
6.2 Notwithstanding the provisions of subclause 6.1 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.
6.3 The termination of the appointment pursuant to subclause 6.1 or 6.2 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.
6.4 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.
6.5 Notwithstanding the provisions of subclauses 6.1, 6.2 and 6.4 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.
29
6.6 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.
6.7 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.
6.8 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.
6.9 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).
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
8.1 The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
30
8.2 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
10.1 This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
10.2 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.
31
SCHEDULE TO THE CALCULATION AGENCY AGREEMENT
TITLE AND ANNOTATION BY
ISSUE MATURITY NOMINAL CALCULATION
SERIES NUMBER DATE DATE AMOUNT AGENT/ISSUER
------------- ---- ---- ------ ------------
32
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]
[CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
c/o Reid Management Limited
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
PO Box HM1179
▇▇▇▇▇▇▇▇ HMEX
Bermuda
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇]
By:
33
GUARANTOR
CIBA SPECIALTY CHEMICALS HOLDING INC.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telefax No: 00 41 61 636 6828
Attention: Group Treasurer
By: By:
CALCULATION AGENT
[
]
Telephone: [ ]
Telefax No: [ ]
Attention: [ ]
34
SCHEDULE 1
TERMS AND CONDITIONS OF THE NOTES
(TO BE INCLUDED FROM FINAL OFFERING CIRCULAR)
35
AGENT
JPMORGAN CHASE BANK
TRINITY TOWER
9 ▇▇▇▇▇▇ ▇▇▇▇ STREET
LONDON E1W 1YT
PAYING AGENT
▇.▇. ▇▇▇▇▇▇ 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.
57
SCHEDULE 2
FORMS OF GLOBAL AND DEFINITIVE NOTES, RECEIPTS, COUPONS AND TALONS
PART 1
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).](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
(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)/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
(a company incorporated with limited liability in Bermuda)]
unconditionally and irrevocably guaranteed by
CIBA SPECIALTY CHEMICALS HOLDING INC.
(a company incorporated with limited liability in Switzerland)
--------
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.
58
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/Ciba Specialty Chemicals Eurofinance Ltd.] (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 27th March, 2003
and made between, inter alia, the Issuer, the Guarantor, JPMorgan Chase 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 be) shall be entered by or on behalf
of the Issuer in Schedule 1 hereto and the relevant space in Schedule 1 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 2, 3 or 4 of Schedule 1 or Schedule 2
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 3 hereto, to the effect that it
has received from or in respect of a person entitled to a particular nominal
amount of the
59
Notes (as shown by its records) a certificate in or substantially in the form of
Certificate "A" as set out in Schedule 3 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 3, 4, 5 and 6 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 2 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 3 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 3 hereto.
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 2 hereto and the relevant space in Schedule 2 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 2 to the Permanent Global Note and the
relevant space in Schedule 2 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
3, Part 4, Part 5 and Part 6, 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
60
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 27th March, 2003 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/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
By: .............................
Authorised Signatory
Authenticated without recourse,
warranty or liability by
JPMORGAN CHASE BANK
By: ..........................
Authorised Signatory
61
SCHEDULE ONE TO THE TEMPORARY GLOBAL NOTE
PART I
INTEREST PAYMENTS
Total amount of Amount of Confirmation of payment on
Date made interest payable interest paid behalf of the Issuer
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62
PART II
PAYMENT OF INSTALMENT AMOUNTS
Remaining nominal
amount of this
Total amount of Global Note Confirmation of
Instalment Amount of Instalment following such payment on behalf
Date made Amounts payable Amounts paid payment* of the Issuer
--------- --------------- -------------------- ----------------- ---------------
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--------
* See most recent entry in Part 2, 3 or 4 of Schedule One or Schedule Two in
order to determine this amount.
63
PART III
REDEMPTIONS
Remaining nominal
amount of this Confirmation
Global Note of redemption
Total amount of Amount of following such on behalf of
Date made principal payable Principal paid redemption* the Issuer
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--------
* See most recent entry in Part 2, 3 or 4 of Schedule One or Schedule Two in
order to determine this amount.
64
PART IV
PURCHASES AND CANCELLATIONS
Remaining nominal
Part of nominal amount of this Confirmation of
amount of this Global Note purchase and
Global Note following such cancellation on
purchased and purchase and behalf of the
Date made cancelled cancellation* Issuer
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--------
* See most recent entry in Part 2, 3 or 4 of Schedule One or Schedule Two in
order to determine this amount.
65
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 Global Note Remaining nominal
exchanged for amount of this
Definitive Notes Global Note Notation made on
or a Permanent following such behalf of the
Date made Global Note exchange * Issuer
--------- ----------------- ----------------- ----------------
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--------
* See most recent entry in Part 2, 3 or 4 of Schedule One or Schedule Two in
order to determine this amount.
66
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/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[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)(iv)) (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
67
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.
68
CERTIFICATE "A"
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[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)(iv)) (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.
69
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.
70
PART 2
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)
[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)/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
(a company incorporated with limited liability in Bermuda)]
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/Ciba Specialty Chemicals Eurofinance Ltd.] (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
----------
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.
71
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 27th March, 2003
and made between, inter alia, the Issuer, the Guarantor, JPMorgan Chase 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 1 hereto and the relevant space in Schedule 1 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 2, 3 or 4 of Schedule 1 or
Schedule 2 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 2 hereto and the relevant space in
Schedule 2 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 3, Part 4, Part 5 and Part 6 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
72
endorsed on or attached to such Definitive Notes) either, as specified in the
applicable Pricing Supplement:
(a) 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
(b) only upon the occurrence of any Exchange Event.
An EXCHANGE EVENT means an Event of Default has occurred and is continuing;
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
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:
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 3, Part 4, Part 5
and Part 6, 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 27th March, 2003 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.
73
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/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
By: .........................
Authorised Signatory
Authenticated without recourse,
warranty or liability by
JPMORGAN CHASE BANK
By: ..........................
Authorised Signatory
74
SCHEDULE ONE TO THE TEMPORARY GLOBAL NOTE
PART I
INTEREST PAYMENTS
Total amount of Amount of Confirmation of payment on
Date made interest payable interest paid behalf of the Issuer
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75
PART II
PAYMENT OF INSTALMENT AMOUNTS
Remaining nominal
amount of this
Total amount of Global Note Confirmation of
Instalment Amount of Instalment following such payment on behalf
Date made Amounts payable Amounts paid payment* of the Issuer
--------- --------------- -------------------- ----------------- -----------------
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--------
* See most recent entry in Part 2, 3 or 4 of Schedule One or Schedule Two in
order to determine this amount.
76
PART III
REDEMPTIONS
Remaining nominal
amount of this Confirmation
Global Note of redemption
Total amount of Amount of following such on behalf of
Date made principal payable Principal paid redemption* the Issuer
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--------
* See most recent entry in Part 2, 3 or 4 of Schedule One or Schedule Two in
order to determine this amount.
77
PART IV
PURCHASES AND CANCELLATIONS
Remaining nominal
Part of nominal amount of this Confirmation of
amount of this Global Note purchase and
Global Note following such cancellation on
purchased and purchase and behalf of the
Date made cancelled cancellation* Issuer
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* See most recent entry in Part 2, 3 or 4 of Schedule One or Schedule Two in
order to determine this amount.
78
SCHEDULE TWO TO THE PERMANENT GLOBAL NOTE
SCHEDULE OF EXCHANGES
The following exchanges affecting the nominal amount of this Global Note have
been made:
Nominal amount of
Temporary Global Nominal amount of Notation made on
Note exchanged for this Global Note behalf of the
Date made this Global Note following exchange * Issuer
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* See most recent entry in Part 2, 3 or 4 of Schedule One or Schedule Two in
order to determine this amount.
79
PART 3
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)
[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)/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
(a company incorporated with limited liability in Bermuda)]
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]
--------
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.
80
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/Ciba Specialty Chemicals
Eurofinance Ltd.] (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 27th March, 2003 and made
between, inter alia, the Issuer, the Guarantor, JPMorgan Chase 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.
This Note shall not be validly issued unless authenticated by the Agent.
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/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
By: .............................
Authorised Signatory
Authenticated without recourse,
warranty or liability by
JPMORGAN CHASE BANK
By: ..........................
Authorised Signatory
81
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]
82
PART 4
FORM OF COUPON
(Face of Coupon)
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[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.
[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
83
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 more than 183 days and
all other Coupons.
84
(Reverse of Coupon)
AGENT
JPMORGAN CHASE BANK
TRINITY TOWER
9 ▇▇▇▇▇▇ ▇▇▇▇ STREET
LONDON E1W 1YT
PAYING AGENT
▇.▇. ▇▇▇▇▇▇ 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.
85
(On the front)
PART 5
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/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[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 more than 183 days and
on all other Receipts.
86
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/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
By:...........................
Authorised Signatory
87
PART 6
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/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[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.
This Talon may, in certain circumstances, become void under the Terms and
Conditions endorsed on the Notes to which this Talon appertains.
----------
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.
88
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
By: ...........................
Authorised Signatory
89
(Reverse of Receipt and Talon)
AGENT
JPMORGAN CHASE BANK
TRINITY TOWER
9 ▇▇▇▇▇▇ ▇▇▇▇ STREET
LONDON E1W 1YT
PAYING AGENT
▇.▇. ▇▇▇▇▇▇ 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.
90
SCHEDULE 3
FORM OF DEED OF GUARANTEE
THIS DEED OF GUARANTEE is made on 27th March, 2003 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, CIBA SPECIALTY CHEMICALS
EUROFINANCE LTD. (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 27th March, 2003 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 30th March, 2001 (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 27th March,
2003 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 27th March, 2002, 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
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
91
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
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;
92
except that no additional amount shall be payable in relation to any
payment in respect of any Note or Coupon:
(a) 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
(b) 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
(c) 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
(d) 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 26th-27th November, 2000, or any law
implementing or complying with, or introduced in order to conform
to, such Directive; and/or
(e) 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.
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
93
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 )
and )
)
acting under the authority of )
that Company in the presence of: )
Witness's
Signature:.........................................
Name: .............................................
Address:...........................................
.............................................
Dated 27th March, 2003
94
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:
(A) VOTING CERTIFICATE shall mean an English language certificate issued
by a Paying Agent and dated in which it is stated:
(i) 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:
(A) the conclusion of the meeting specified in such
certificate or, if applicable, any adjourned such
meeting; and
(B) the surrender of the certificate to the Paying Agent who
issued the same; and
(ii) 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;
(B) BLOCK VOTING INSTRUCTION shall mean an English language document
issued by a Paying Agent and dated in which:
(i) 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:
(A) the conclusion of the meeting specified in such document
or, if applicable, any adjourned such meeting; and
(B) 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;
(ii) 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
95
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;
(iii) 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
(iv) 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 (iii) 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.
(c) 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 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).
96
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:
(a) modification of the Maturity Date of the Notes or reduction or
cancellation of the nominal amount payable upon maturity; or
(b) 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
(c) reduction of any Minimum Interest Rate and/or Maximum Interest Rate
specified in the applicable Pricing Supplement of any Note; or
(d) modification of the currency in which payments under the Notes
and/or the Receipts and/or Coupons appertaining thereto are to be
made; or
(e) modification of the majority required to pass an Extraordinary
Resolution; or
(f) the sanctioning of any such scheme or proposal as is described in
paragraph (f) below; or
(g) 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 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
97
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.
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
98
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
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.
99
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.
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
100
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.
101
SCHEDULE 5
FORM OF PUT NOTICE
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[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: ................................
102
Duly authorised on behalf of
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[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.
103
SCHEDULE 6
[ ]
DATED 27TH MARCH, 2003
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
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)
------------------------------------------
[▇▇▇▇▇ & ▇▇▇▇▇ LOGO]
LONDON
104
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 27th March, 2003 (the
OFFERING CIRCULAR as supplemented), or, as the case may be, the amended and
restated Program Agreement dated 27th March, 2003 (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.
1. 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:
(a) 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;
(b) 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
(c) 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 notify the relevant
Issuer, the Guarantor, Euroclear, Clearstream, Luxembourg and the
relevant Dealer or Lead Manager, as the case may be.
105
2. RESPONSIBILITIES OF DEALER/LEAD MANAGER
(a) 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.
(b) 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.
3. 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.
106
ANNEX 1
[ ]
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
than issue terms with one or more of the Dealers
Date minus 5 for the 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,
107
Day Latest Action
--- ------ ------
London time
-----------
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 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 Pricing Supplement to the Agent.
The details set out in 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
Issue Date listed on a Stock Exchange, the Agent
Minus 3 also 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
Minus 2 and/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
108
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 the Agent of the purchase price for the
relevant 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
to the Issue Date Guarantor 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.
109
ANNEXE 1
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 subject to the execution of the
minus 10 (or Subscription Agreement referred to
such other number below, agree terms with a Dealer (which
of days agreed expression in this Part 2 includes any
between the entity to be appointed as a dealer
Issuer, the under the Subscription Agreement
Guarantor, referred to below) (the LEAD MANAGER)
the Lead Manager and for the issue and purchase of Notes to
the Agent) 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.
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
110
Day Latest time Action
--- ----------- ------
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 draft 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 debit
minus 2 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.
Issue Date 3.00 p.m. In the case of Floating Rate Notes, the
minus 2 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.
111
Day Latest time Action
--- ----------- ------
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, and
issues) or Issue where required as specified above, a
Date (in any other Permanent Global Note in respect of the
case) (the PAYMENT relevant Series. The conditions
INSTRUCTION DATE) 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 Each other Manager (if any) promptly
the Issue Date notifies the Lead Manager when the
distribution of the Notes purchased by it
has been completed. The Lead 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.
Explanatory Notes to Annexe 1
(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:
112
(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);
(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.; and
(iii) a day on which Euroclear, Clearstream, Luxembourg and any other
relevant clearing system is open for general business.
(c) Times given are the approximate times for the taking of the action in
question and are references to London time.
113
ANNEX 2
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/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
and: CIBA SPECIALTY CHEMICALS HOLDING INC.
c.c. JPMorgan Chase Bank
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[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
114
ANNEX 3
FORM OF PRICING SUPPLEMENT
[Date]
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
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
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 subparagraphs. Italics denote
directions for completing the Pricing Supplement.]
[If Notes issued by Ciba Specialty Chemicals PLC have a maturity of less than
one year from the date of their issue, the minimum redemption amount must be
L100,000 or its equivalent in any other currency.
If Notes issued by any other Issuer (including Notes denominated in sterling),
in respect of which the issue proceeds are to be accepted in the United Kingdom
or whose issue otherwise constitutes a contravention of section 19 of the
Financial Services and Markets ▇▇▇ ▇▇▇▇, have a maturity of less than one year
from the date of their issue, the minimum redemption amount must be L100,000 or
its equivalent in any other currency.]
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: [ ]
- Tranche: [ ]
115
- Series: [ ]
5. Issue Price of Tranche: [ ] per cent
[Net proceeds] (required only for listed issues)
6. Specified Denominations: [In the case of Notes with a
maturity of 183 days or less issued
by (i) Ciba Specialty Chemicals
Corporation or (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)]
[In the case of Notes that are issued by
Ciba Specialty Chemicals Eurofinance
Ltd. the minimum denomination for such
Notes shall be USD 500,000 (or the
equivalent thereof at exchange rates
applicable on the Issue Date of such
Note), unless a prospectus is filed with
the Registrar of Companies in Bermuda in
accordance with Part III of the
Companies ▇▇▇ ▇▇▇▇ (as amended) of
Bermuda.]
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]
[Instalment]
[specify other]
11. Change of Interest Basis or
Redemption/Payment Basis: [Specify details of any provision
for change of Notes into another
Interest
116
Basis or 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]
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 [None/Give details]
for Fixed Rate 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
117
Day Convention/Preceding Business Day
Convention/[specify other]]
(iii) Additional Business [ ]
Centre(s):
(iv) Manner in which the
Rate of Interest and
Interest Amount is to [Screen Rate Determination/ISDA
be determined: 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 day on which commercial
banks are open for general business
(including dealings in foreign
exchange and foreign currency
deposits) in London 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): [+/ - ] [ ] per cent per annum
(ix) Minimum Rate of Interest: [ ] per cent per annum
(x) Maximum Rate of Interest: [ ] per cent per annum
(xi) Floating Day Count [ ]
Fraction:
118
(xii) Fall back provisions,
rounding provisions and
any other terms
relating to the method
of calculating interest
on Floating Rate 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: [ ] per cent 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 [Applicable/Not Applicable]
PROVISIONS (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 [ ]
Centre(s):
(vii) Minimum Rate of [ ] per cent per annum
Interest:
(viii) Maximum Rate of [ ] per cent per annum
Interest:
(ix) Floating Day Count [ ]
Fraction:
119
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)
(i) Optional Redemption
Date(s): [ ]
120
(ii) Optional Redemption
Amount(s) and method,
if any, of
calculation of such [ ]
amount(s):
(iii) Notice period (if
other than as set 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
Centre(s) or other special [Not Applicable/give details]
provisions relating to (Note that this item relates to the
Payment Dates: place 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 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 [Not Applicable/give details]
forfeit the Notes and interest
due on late payment:
28. Details relating to
Instalment Notes:
121
amount of
each instalment, date on [Not Applicable/give details]
which each payment is to be
made:
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
Instalment Notes: Specify
Instalment Amounts and [Not Applicable/give details]
Instalment Dates:
31. Other terms or special [Not Applicable/give details]
conditions:
DISTRIBUTION
32. (i) If syndicated, names
of Managers: [Not Applicable/give names]
(ii) Stabilising Manager [Not Applicable/give names]
(if any):
33. If non-syndicated, name of
relevant Dealer: [Not Applicable/give names]
34. Whether TEFRA D rules
applicable or TEFRA rules [TEFRA D/TEFRA not applicable]
not applicable:
35. Additional selling [Not Applicable/give details]
restrictions:
OPERATIONAL INFORMATION
36. Any clearing system(s) other
than Euroclear and
Clearstream, Luxembourg and
the relevant identification [Not Applicable/give names(s) and
number(s): number(s)]
37. Delivery: Delivery [against/free of] payment
38. Additional Paying Agent(s) [ ]
(if any):
ISIN: [ ]
Common Code: [ ]
122
[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/Ciba Speciality
Chemicals Eurofinance Ltd.]
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 authorised Duly authorised
By:...................................
Duly authorised
123
ANNEX 4
TRADING DESK AND ADMINISTRATIVE INFORMATION
THE ISSUERS
CIBA SPECIALTY CHEMICALS CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Treasurer
CIBA SPECIALTY CHEMICALS PLC
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Telefax: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Treasurer
CIBA SPEZIALITATENCHEMIE HOLDING ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Telefax: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Attention: Treasurer
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
c/o Reid Management Limited
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
PO Box HM1179
▇▇▇▇▇▇▇▇ HMEX
Bermuda
Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
124
THE GUARANTOR
CIBA SPECIALTY CHEMICALS HOLDING INC.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: Group Treasurer
THE DEALERS
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
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Attention: MTN Trading
DEUTSCHE BANK AG LONDON
Winchester House
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Telex: 94 01 5555 DBLN G
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Attention: MTN Desk
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Telex: 94012165 GSHH G
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Attention: Euro Medium Term Note Desk
▇.▇. ▇▇▇▇▇▇ SECURITIES LTD.
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Telex: 8954804 MGLTD G
Telefax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Euro Medium Term Note Desk
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UBS LIMITED
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Telex: ▇▇▇▇▇▇ ▇▇▇▇ ▇
Telefax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: MTNs and Private Placements
THE AGENT
JPMorgan Chase Bank
Trinity Tower
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Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Telex: 8954681 CMB G
Telefax: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Attention: Manager, Institutional Trust Services
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SIGNATORIES
THE ISSUERS
CIBA SPECIALTY CHEMICALS CORPORATION
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Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Treasurer
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
CIBA SPECIALTY CHEMICALS PLC
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Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Telefax: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Treasurer
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
Chemiestrasse
D-68623 Lampertheim
Germany
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Telefax: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Treasurer
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
c/o Reid Management Limited
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PO Box HM1179
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Bermuda
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Telefax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
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By: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
THE GUARANTOR
CIBA SPECIALTY CHEMICALS HOLDING INC.
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Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: Group Treasurer
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
THE AGENT
JPMORGAN CHASE BANK, LONDON BRANCH
Trinity Tower
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Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Telex No: 8954681 CMB G
Telefax No: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Attention: Manager, Institutional Trust Services
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THE LUXEMBOURG PAYING AGENT
▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A.
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All communications should be sent care of the Agent
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