Exhibit 4.1
30TH MARCH, 2001
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
AS ISSUERS
- AND -
CIBA SPECIALTY CHEMICALS HOLDING INC.
AS GUARANTOR
- AND -
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
DEUTSCHE BANK AG LONDON
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇.▇. ▇▇▇▇▇▇ SECURITIES LTD.
UBS AG, ACTING THROUGH ITS BUSINESS GROUP UBS WARBURG
AS DEALERS
---------------------------------------------
PROGRAM AGREEMENT
IN RESPECT OF A U.S.$2,000,000,000
EURO MEDIUM TERM NOTE PROGRAM
(AMENDED AND RESTATED)
--------------------------------------------
[GRAPHIC OMITTED]
London
CONTENTS
Clause Page
1. Definitions and Interpretation..........................................2
2. Agreements to Issue and Purchase Notes..................................5
3. Conditions of Issue; Updating...........................................6
4. Representations and Warranties..........................................8
5. Undertakings of the Issuers and the Guarantor..........................10
6. Indemnity..............................................................14
7. Authority to Distribute Documents......................................15
8. Dealers' Undertakings..................................................16
9. Fees, Expenses and Stamp Duties........................................16
10. Termination of Appointment of Dealers..................................17
11. Appointment of New Dealers.............................................18
12. Increase in the Aggregate Nominal Amount of the Program................18
13. Status of the Arrangers................................................19
14. Counterparts...........................................................19
15. Communications.........................................................19
16. Benefit of Agreement...................................................19
17. Currency Indemnity.....................................................20
18. Calculation Agent......................................................20
19. Stabilisation..........................................................21
20. Contracts (Rights of Third Parties) Act 1999...........................21
21. Governing Law and Jurisdiction.........................................21
Appendices
A. Initial Documentation List.............................................22
B. Selling Restrictions...................................................24
C. Part I - Form of Dealer Accession Letter - Program....................28
Part II - Form of Confirmation Letter - Program........................30
Part III - Form of Dealer Accession Letter - Note Issue................32
Part IV - Form of Confirmation Letter - Note Issue....................34
D. Letter Regarding Increase in the Nominal Amount of the Program.........36
E. Form of Subscription Agreement.........................................38
F. Form of Deed of Covenant...............................................44
Signatories.................................................................52
PROGRAM AGREEMENT
in respect of a
EURO MEDIUM TERM NOTE PROGRAM
THIS AGREEMENT is made on 30th March, 2001 BETWEEN:
(1) CIBA SPECIALTY CHEMICALS CORPORATION of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("CSC US");
(2) CIBA SPECIALTY CHEMICALS PLC of ▇▇▇▇▇▇ Road, Macclesfield, Cheshire SK10
2NX, England ("CSC UK");
(3) CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH of ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇-
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("CSC GERMANY");
(4) CIBA SPECIALTY CHEMICALS HOLDING INC. of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the "GUARANTOR");
(5) CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇;
(6) DEUTSCHE BANK AG LONDON of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇;
(7) ▇▇▇▇▇▇▇ SACHS INTERNATIONAL of Peterborough Court, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
(8) ▇.▇. ▇▇▇▇▇▇ SECURITIES LTD. of ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
and
(9) UBS AG, acting through its business group UBS Warburg ("UBS WARBURG") of
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
IT IS HEREBY AGREED as follows:
WHEREAS:
(A) CSC US, CSC UK, CSC Germany, the Guarantor and the Dealers (as defined
below) entered into an amended and restated program agreement dated 16th
June, 2000 (the "PRINCIPAL PROGRAM AGREEMENT") in respect of a
U.S.$2,000,000,000 Euro Medium Term Note Program of CSC US, CSC UK and
CSC Germany unconditionally and irrevocably guaranteed by the Guarantor.
(B) This Agreement amends and restates the Principal Program Agreement. Any
Notes issued under the Program on or after the date hereof shall be
issued pursuant to this Agreement. This does not affect any Notes issued
under the Program prior to the date of this Agreement.
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1. DEFINITIONS AND INTERPRETATION
(1) For the purposes of this Agreement, except where the context requires
otherwise:
"Agenty Agreement" means the amended and restated agreement of even date
herewith between the Issuers, the Guarantor, the Agent (as defined below)
and the other Paying Agents (as defined therein) under which the Agent is
appointed as issuing agent, principal paying agent and agent bank for the
purposes of the Program;
"Agent" means The Chase Manhattan Bank as Agent under the Agency
Agreement and any successor agent appointed by the Issuers and the
Guarantor in accordance with the Agency Agreement;
"Agreement Date" means, in respect of any Note, the date on which
agreement is reached for the issue of such Note as contemplated in Clause
2 which, in the case of Notes issued on a syndicated basis or otherwise
in relation to which a Subscription Agreement is entered into, shall be
the date upon which the relevant Subscription Agreement is signed by or
on behalf of all the parties;
"Arranger" means each of UBS Warburg and any company appointed to the
position of arranger for the Program or in respect of a particular issue
of Notes under the Program and references in this Agreement to the
"Arrangers" shall be references to the relevant Arranger;
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme;
"Confirmation Letter" means:
(a) in respect of the appointment of a third party as a Dealer for the
duration of the Program, the Confirmation Letter substantially in
the form set out in Part II of Appendix C hereto; and
(b) in respect of the appointment of a third party as a Dealer for a
particular issue of Notes under the Program, the Confirmation Letter
substantially in the form set out in Part IV of Appendix C hereto;
"Dealer" means each of Credit Suisse First Boston (Europe) Limited,
Deutsche Bank AG London, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ▇.▇. ▇▇▇▇▇▇
Securities Ltd., UBS Warburg, and any New Dealer and excludes any entity
whose appointment has been terminated pursuant to Clause 10 and notice of
termination of whose appointment has been given to the Agent by the
Issuers and the Guarantor, and references in this Agreement to the
"relevant Dealer" shall, in relation to any Note, be references to the
Dealer or Dealers with whom the relevant Issuer has agreed the issue and
purchase of such Note;
"Dealer Accession Letter" means:
(a) in respect of the appointment of a third party as a Dealer for the
duration of the Program, the Dealer Accession Letter substantially
in the form of Part I of Appendix C hereto; and
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(b) in respect of the appointment of a third party as a Dealer for one
or more particular issue(s) of Notes under the Program, the Dealer
Accession Letter substantially in the form set out in Part III of
Appendix C hereto;
"Deed of Covenant" means the deed poll of even date herewith,
substantially in the form set out in Appendix F hereto, executed as a
deed by each Issuer in favour of certain accountholders with relevant
clearing systems;
"Deed of Guarantee" means the deed of guarantee of even date herewith
executed by the Guarantor under which the Guarantor irrevocably
guarantees the obligations of the Issuers in relation to the Program;
"Euroclear" means Euroclear Bank S.A./N.V. as operator of the Euroclear
System, or any successor to the business thereof;
"FSA" means the Financial Services ▇▇▇ ▇▇▇▇;
"Initial Documentation List" means the list of documents set out in
Appendix A to this Agreement;
"Issuer" means any of CSC US, CSC UK or CSC Germany in its capacity as an
issuer of Notes, and references in this Agreement to the "relevant
Issuer" shall, in relation to any issue of Notes, be references to the
Issuer which is, or is intended to be, the issuer of such Notes;
"Lead Manager" means, in relation to any Tranche of Notes, the person
defined as the Lead Manager in the applicable Subscription Agreement or,
when only one Dealer signs such Subscription Agreement, such Dealer;
"Listing Agent" means, in relation to Notes which are, or are to be:
(a) listed on the Luxembourg Stock Exchange, Banque Internationale a
Luxembourg S.A. or such other listing agent as the Issuers and the
Guarantor may from time to time appoint for the purposes of liaising
with the Luxembourg Stock Exchange; and
(b) listed on a Stock Exchange other than the Luxembourg Stock Exchange,
such listing agent as the Issuers and the Guarantor may from time to
time appoint for the purposes of liaising with such Stock Exchange;
"Listing Rules" means, in the case of Notes which are, or are to be,
listed on a Stock Exchange (including the Luxembourg Stock Exchange), the
listing rules and regulations for the time being in force for such Stock
Exchange;
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor to the
rating agency business thereof;
"New Dealer" means any entity appointed as an additional Dealer for the
duration of the Program or for a particular issue of Notes in accordance
with Clause 11;
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"Note" means a note issued or to be issued by an Issuer pursuant to this
Agreement, which Note may be represented by a Global Note or be in
definitive form;
"Offering Circular" means, subject to Clause 5(2), the Offering Circular
relating to the Program as revised, supplemented, amended or updated from
time to time, including in relation to each Tranche of Notes, the Pricing
Supplement relating to such Tranche and such other documents as are from
time to time incorporated therein by reference except that for the
purpose of Clause 4(2) in respect of the Agreement Date and the Issue
Date, the Offering Circular means the Offering Circular as at the
Agreement Date but not including any subsequent revision, supplement or
amendment thereto;
"Pricing Supplement" means the pricing supplement issued in relation to
each Tranche of Notes (substantially in the form of Annexe C to the
Procedures Memorandum) as a supplement to the Offering Circular and
giving details of that Tranche;
"Procedures Memorandum" means the Operating and Administrative Procedures
Memorandum dated 30th as amended or varied from time to time (in respect
of any Tranche) by agreement between the relevant Issuer, the Guarantor
and the relevant Dealer with the approval in writing of the Agent;
"Program" means the Euro Medium Term Note Program established by this
Agreement;
"Relevant Party" means the Arranger, each Dealer (and for the purposes of
Clause 8(3) each Issuer and the Guarantor), each of their respective
affiliates and each person who controls them (within the meaning of
section 15 of the Securities Act or section 20 of the Exchange Act) and
each of their respective directors, officers, employees and agents;
"Securities Act" means the Securities Act of 1933, as amended, of the
United States of America;
"Standard & Poor's" means Standard & Poor's Ratings Service, a division
of the ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., or any successor to the rating agency
business thereof;
"Stock Exchange" means the Luxembourg Stock Exchange or any other or
further stock exchange(s) on which any Notes may from time to time be
listed or admitted to trading, and references in this Agreement to the
"relevant Stock Exchange" shall, in relation to any Notes, be references
to the Stock Exchange on which such Notes are from time to time, or are
intended to be, listed or admitted to trading; and
"Subscription Agreement" means an agreement (by whatever name called) in
or subsequently in the form set out in Appendix E hereto or in such other
form as may be agreed in writing between the relevant Issuer, the
Guarantor and the Lead Manager which agreement shall be supplemental to
this Agreement.
(2) Terms and expressions defined in the Agency Agreement, the Conditions and
the Pricing Supplement applicable to any Notes and not otherwise defined
in this Agreement shall have the same meanings in this Agreement, except
where the context otherwise requires.
(3) In this Agreement, clause headings are inserted for convenience and ease
of reference only and shall not affect the interpretation of this
Agreement.
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(4) 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.
(5) All references in this Agreement to an agreement, instrument or other
document (including this Agreement, the Agency Agreement, the Deed of
Covenant, the Deed of Guarantee, any Series of 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, supplemented or novated from time to time including, but without
prejudice to the generality of the foregoing, this Agreement as
supplemented by any Subscription Agreement.
(6) Words denoting the singular number only shall include the plural number
also and vice versa; words denoting the masculine gender only shall
include the feminine gender also; and words denoting persons only shall
include firms and corporations and vice versa.
(7) Any reference herein to Euroclear and/or Clearstream, Luxembourg shall,
wherever the context so permits, be deemed to include reference to any
additional or alternative clearance system approved by the relevant
Issuer, the Guarantor and the Agent.
2. AGREEMENTS TO ISSUE AND PURCHASE NOTES
(1) Subject to the terms and conditions of this Agreement, any Issuer and the
Guarantor may from time to time agree with any Dealer to issue, and any
Dealer may agree to purchase, Notes.
(2) On each occasion upon which an Issuer, the Guarantor and any Dealer agree
on the terms of the issue and purchase of one or more Notes by such
Dealer:
(a) the relevant Issuer shall cause such Notes (which shall be initially
represented by a Temporary Global Note) to be issued and delivered
to a common depositary for Euroclear and Clearstream, Luxembourg so
that the securities account(s) of such Dealer with Euroclear and/or
with Clearstream, Luxembourg (as specified by such Dealer) is/are
credited with such Notes on the agreed Issue Date, as described in
the Procedures Memorandum; and
(b) the relevant Dealer shall, subject to such Notes being so credited,
cause the net purchase moneys for such Notes to be paid in the
relevant currency by transfer of funds to the relevant cash
account(s) of the Agent with Euroclear and/or Clearstream,
Luxembourg or (in the case of syndicated issues) the relevant
account of the relevant Issuer so that such payment is credited to
such account(s) for value on the agreed Issue Date, as described in
the Procedures Memorandum.
(3) Unless otherwise agreed, the procedures which the parties must apply for
the purposes of subclause (2) are set out in the Procedures Memorandum.
Unless otherwise agreed between the relevant Issuer and the relevant
Dealers, where more than one Dealer has agreed with the relevant Issuer
to purchase a particular issue of Notes pursuant to this Clause, the
obligations of such Dealers so to purchase the Notes shall be joint and
several.
(4) Where the relevant Issuer and the Guarantor agree with two or more
Dealers to issue, and such Dealers agree to purchase, Notes on a
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syndicated basis, the relevant Issuer and the Guarantor shall enter into
a Subscription Agreement with such Dealers. The Issuer and the Guarantor
may also enter into a Subscription Agreement with one Dealer only. For
the avoidance of doubt, the Agreement Date in respect of any such issue
shall be the date on which the Subscription Agreement is signed by or on
behalf of all the parties to it.
(5) Each issue of Notes denominated in a currency in respect of which
particular laws, guidelines, regulations, restrictions or reporting
requirements apply will only be issued in circumstances which comply with
such laws, guidelines, regulations, restrictions or reporting
requirements.
3. CONDITIONS OF ISSUE; UPDATING
(1) First issue
The Arrangers shall circulate to each Dealer all of the documents and
confirmations described in the Initial Documentation List immediately
after those documents and confirmations have been given to the Arrangers
by each Issuer and the Guarantor. Before any Issuer and the Guarantor
reach their first agreement with any Dealer for the issue and purchase of
Notes, that Dealer shall have received, and found satisfactory, in its
reasonable opinion, all of the documents and confirmations described in
the Initial Documentation List.
(2) Each issue
The obligations of a Dealer under any agreement for the issue and
purchase of Notes made pursuant to Clause 2 are conditional upon:
(a) there having been, as at the proposed Issue Date, no adverse change
in the condition (financial or otherwise) of the relevant Issuer and
the Guarantor (as the case may be) which is material in the context
of the issue and offering of the Notes from that set forth in the
Offering Circular on the relevant Agreement Date, nor the occurrence
of any event making untrue or incorrect to an extent which is
material as aforesaid any of the warranties contained in Clause 4;
(b) there being no outstanding breach of any of the obligations of
either the relevant Issuer or (as the case may be) the Guarantor
under this Agreement, the Notes, the Agency Agreement, the Deed of
Covenant or the Deed of Guarantee which has not been waived by the
relevant Dealer on or prior to the proposed Issue Date;
(c) subject to Clause 12, the aggregate nominal amount of the Notes to
be issued, when added to the aggregate nominal amount of all Notes
outstanding (as defined in the Agency Agreement) on the proposed
Issue Date, not exceeding U.S.$2,000,000,000 or its equivalent in
other currencies as determined pursuant to subclause (5);
(d) in the case of Notes which are intended to be listed, the relevant
Stock Exchange having agreed to list such Notes;
(e) no meeting of the holders of Notes (or any of them) issued by the
relevant Issuer (to consider matters which might in the reasonable
opinion of the relevant Dealer be considered to have a material
adverse effect on the issue of the Notes) having been duly convened
but not yet held or, if held but adjourned, the adjourned meeting
7
having not been held and neither the relevant Issuer nor the
Guarantor being aware of any circumstances which are likely to lead
to the convening of such a meeting;
(f) there having been, between the Agreement Date and the Issue Date for
such Notes, no such change in national or international financial,
political or economic conditions or currency exchange rates or
exchange controls as would, in the opinion of the relevant Dealer
(after consultation with the relevant Issuer and the Guarantor if
practicable), be likely to prejudice materially the success of the
offer, sale or distribution by such Dealer of the Notes proposed to
be issued;
(g) the forms of the Pricing Supplement, the Temporary Global Note, the
Permanent Global Note and/or the Definitive Notes in relation to the
relevant Tranche and the relevant settlement procedures, having been
agreed by the relevant Issuer, the Guarantor, the relevant Dealer
and the Agent;
(h) the relevant currency being generally accepted for settlement by
Euroclear and Clearstream, Luxembourg; and
(i) any calculations or determinations which are required by the
relevant Conditions prior to the Issue Date having been duly made.
(3) Waiver
Any Dealer, on behalf of itself only (or, in relation to a syndicated
issue, the Lead Manager on behalf of itself and the other Managers) may
by notice in writing to the relevant Issuer and the Guarantor waive any
of the conditions precedent contained in subclauses (1) and (2) (save for
the condition precedent contained in subclause (2)(c)) in so far as they
relate to an issue of Notes to that Dealer.
(4) Updating of legal opinions
Before the first issue of Notes occurring after the end of each annual
period commencing on the date hereof and on such other occasions as a
Dealer so requests in relation either to any Issuer or the Guarantor or
both (on the basis of reasonable grounds), the Issuers and/or the
Guarantor will procure that a further legal opinion in such form and with
such content as the Dealers may reasonably require is delivered, at the
expense of the Issuers (as to which each of the Issuers shall have joint
and several responsibility as between itself and the Guarantor to the
Dealers). If at, or prior to, the time of any agreement to issue and
purchase Notes under Clause 2 such request is given in writing with
respect to the Notes to be issued, the receipt of such opinion in a form
satisfactory to the relevant Dealer shall be a further condition
precedent to the issue of those Notes to the relevant Dealer.
(5) Determination of amounts outstanding
For the purposes of subclause (2)(c):
(a) the U.S. dollar equivalent of Notes denominated in a currency other
than U.S. dollars shall be determined, at the discretion of the
Issuer, either as of the Agreement Date for such Notes or on the
preceding day on which commercial banks and foreign exchange markets
are open for general business in London, in each case on the basis
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of the spot rate for the sale of U.S. dollars against the purchase
of the relevant currency in the London foreign exchange market
quoted by any leading bank selected by the relevant Issuer or the
Guarantor on the relevant day of calculation;
(b) the U.S. dollar equivalent of Dual Currency Notes and Indexed Notes
shall be calculated in the manner specified above by reference to
the original nominal amount of such Notes;
(c) the U.S. dollar equivalent of Zero Coupon Notes and other Notes
issued at a discount or premium shall be calculated in the manner
specified above by reference to the net proceeds received by the
relevant Issuer for the particular issue; and
(d) the U.S. dollar equivalent of Partly Paid Notes shall be the nominal
amount regardless of the amount of purchase moneys paid.
4. REPRESENTATIONS AND WARRANTIES
(1) As at the date of this Agreement each of the Issuers and the Guarantor
(each Issuer severally as to itself and the Guarantor jointly and
severally with the relevant Issuer as to the relevant Issuer and
severally as to itself) warrant to and agree with the Dealers and each of
them as follows:
(a) that the Offering Circular contains all information with regard to
the Issuers, the Guarantor and the Notes which is material in the
context of the Program and the issue and offering of Notes
thereunder, that the information contained in the Offering Circular
with respect to the Issuers, the Guarantor and the Notes is true and
accurate in all material respects and is not misleading in any
material respect, that the opinions and intentions expressed therein
with respect to the Issuers, the Guarantor and the Notes are
honestly held, that there are no other facts with respect to the
Issuers, the Guarantor and the Notes the omission of which would
make the Offering Circular as a whole or any of such information or
the expression of any such opinions or intentions misleading in any
material respect and that each of the Issuers and the Guarantor have
made all reasonable enquiries to ascertain all facts material for
the purposes aforesaid, provided that the warranty and agreement in
this paragraph (a) shall not extend to information in the Offering
Circular under the heading "Subscription and Sale";
(b) that, except as otherwise indicated in the Offering Circular, there
has been no adverse change in the financial position or results of
operations of the Guarantor and its consolidated subsidiaries taken
as a whole which is material in the context of the issue and
offering of any Notes to be issued under the Program since the date
as at which the last published audited consolidated accounts of the
Guarantor were prepared;
(c) that each of the Issuers and the Guarantor is duly incorporated and
validly existing under the laws of its jurisdiction of incorporation
and that the creation of Notes under the Program, their offering on
the terms and subject to the conditions contained herein, the
execution and issue by the relevant Issuer of, and compliance by the
relevant Issuer with the terms of, the Notes, the Receipts and the
Coupons and the execution and delivery by or on behalf of each
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Issuer of, and compliance by each Issuer with the terms of, this
Agreement, the Deed of Covenant and the Agency Agreement and the
execution and delivery by or on behalf of the Guarantor, and
compliance by the Guarantor with the terms of, the Deed of
Guarantee:
(i) are in accordance with the provisions of the laws of the
jurisdiction of the relevant company and with the
constitutional documents of the relevant company;
(ii) do not infringe the terms of, or constitute a default under,
any trust deed, agreement or other instrument or obligation to
which any of the Issuers or the Guarantor is a party or by
which it is bound; and
(iii) have been duly authorised by each of the Issuers and/or the
Guarantor (as the case may be),
so that Notes issued under the Program, the Receipts, the Coupons
and the aforesaid agreements constitute, or upon due authentication
and issue or delivery will constitute, valid and legally binding
obligations of the relevant Issuer and/or the Guarantor (as the case
may be) in accordance with their respective terms (subject to
applicable bankruptcy, reorganisation, insolvency, fraudulent
transfer, moratorium and other similar laws affecting creditors'
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);
(d) that no condition, omission, event or act has occurred which would
(or, with the giving of notice and/or the lapse of time would)
constitute an Event of Default;
(e) that, except as disclosed in the Offering Circular, none of the
Issuers or the Guarantor is engaged (whether as defendant or
otherwise) in, nor has any of the Issuers or the Guarantor knowledge
of the existence of, or any threat of, any legal, arbitration,
administrative or other proceedings the result of which might have a
material adverse effect on the financial position or operations of
any of the Issuers or the Guarantor in the context of the issue of
Notes under the Program;
(f) that all consents, approvals, authorisations, orders and clearances
of all regulatory authorities required by the Issuers or the
Guarantor under the laws of Germany, the United States of America,
Switzerland, the Grand Duchy of Luxembourg and the United Kingdom
(as the case may be) for or in connection with the creation and
offering of Notes under the Program, the execution and issue of, and
compliance by each Issuer and the Guarantor with the terms of, Notes
issued under the Program (including any Global Note), the Receipts
and the Coupons and the execution and delivery of, and compliance
with the terms of, this Agreement, the Agency Agreement, the Deed of
Covenant and the Deed of Guarantee have been obtained and are in
full force and effect and that the Issuers and the Guarantor have
complied with all legal and other requirements necessary to ensure
that, upon due authentication and issue in the manner aforesaid,
Notes issued under the Program, the Receipts and the Coupons will
represent valid and legally binding obligations of the relevant
Issuer and the Guarantor, payable (as regards the Notes, any Global
Note, the Receipts and the Coupons) in accordance with their terms,
that this Agreement, the Agency Agreement, the Deed of Covenant and
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the Deed of Guarantee constitute valid and legally binding
obligations of the Issuers and/or the Guarantor (as the case may be)
in accordance with their respective terms (subject to applicable
bankruptcy, reorganisation, insolvency, fraudulent transfer,
moratorium and other similar laws affecting creditors' 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) and that on issuance, due payment of the principal and
interest (including any additional amounts payable under the
Conditions of the Notes) in respect of Notes issued under the
Program and compliance by the Issuers and/or the Guarantor with
their terms and with the terms of this Agreement, the Agency
Agreement, the Deed of Covenant and the Deed of Guarantee will not
infringe any existing such laws or the terms of any such consent,
approval, authorisation, order or clearance;
(g) that the net proceeds from the issue of the Notes will be used
outside Switzerland; and
(h) that none of the Issuers, the Guarantor nor any affiliate (as
defined in Rule 405 under the Securities Act) nor any persons (other
than the Dealers, any of their respective affiliates or any person
acting on behalf of any of the foregoing) acting on behalf of any of
them has engaged or will engage in any directed selling efforts (as
defined in Regulation S under the Securities Act) with respect to
the Notes, and the Issuers, the Guarantor and any affiliate and all
persons (other than the Dealers, any of their respective affiliates
or any person acting on behalf of any of the foregoing) acting on
behalf of any of them with respect to the Notes have complied and
will comply with the offering restrictions requirements of
Regulation S under the Securities Act with respect thereto.
(2) With regard to each issue of Notes under the Program, the relevant Issuer
and the Guarantor shall be deemed to repeat the warranties and agreements
contained in subclause (1) as at the Agreement Date for such Notes (any
agreement on such Agreement Date being deemed to have been made on the
basis of, and in reliance on, such warranties and agreements) and as at
the Issue Date of such Notes.
(3) The Issuers and the Guarantor shall be deemed to repeat the
representations and warranties contained in subclause (1)(a) on each date
on which the Offering Circular is revised, supplemented or amended. The
Issuers and the Guarantor shall be deemed to repeat the representations
and warranties contained in subclause (1) on each date on which the
aggregate nominal amount of the Program is increased in accordance with
Clause 12.
(4) The warranties and agreements contained in this Clause 4 shall continue
in full force and effect notwithstanding any investigation by or on
behalf of the Dealers or completion of the subscription and issue of any
Notes.
5. UNDERTAKINGS OF THE ISSUERS AND THE GUARANTOR
(1) Notification of material developments
Each Issuer and the Guarantor shall, prior to the time of an agreement
under Clause 2 (or, if such party becomes aware of the occurrence thereof
after such time but prior to the completion of the distribution by the
11
Dealers of the relevant Notes, promptly upon becoming aware of the
occurrence thereof), notify each Dealer of:
(a) any Event of Default or any condition, event or act in relation to
itself of which it is aware which, with the giving of notice and/or
the lapse of time (after the issue of any Notes) would constitute an
Event of Default or any breach of the representations and warranties
or undertakings contained in this Agreement, the Agency Agreement,
the Deed of Covenant, the Deed of Guarantee or any of them; and
(b) any development affecting such Issuer or the Guarantor or their
respective businesses of which it is aware which, in the reasonable
opinion of such Issuer or the Guarantor (as the case may be), is
material in the context of the Program or any issue of Notes
thereunder.
If, following the time of an agreement under Clause 2 and before the
issue of the relevant Notes, the relevant Issuer or the Guarantor becomes
aware that the conditions specified in Clause 3(2) will not be satisfied
in relation to that issue, the relevant Issuer or the Guarantor (if
applicable), as the case may be, shall forthwith notify the relevant
Dealer to that effect giving full details thereof. In such circumstances,
the relevant Dealer shall be entitled (but not bound) by written notice
to the relevant Issuer and the Guarantor to be released and discharged
from its obligations under the agreement reached under Clause 2. Without
prejudice to the generality of the foregoing, each Issuer and the
Guarantor shall from time to time promptly furnish to each Dealer such
information relating to such Issuer and/or the Guarantor (as the case may
be) as such Dealer may reasonably request, provided that such information
is relevant in the context of the Program or an issue of Notes
thereunder.
(2) UPDATING OF OFFERING CIRCULAR
Following the publication of the Guarantor's audited financial
information for the year ended 31st December, 2001, and at the end of
each annual period thereafter and in the event of a change in the
condition of any or all of the Issuers or the Guarantor which is material
in the context of the Program or the issue of the Notes thereunder, the
Issuers and the Guarantor shall update or amend the Offering Circular
(following consultation with the Arrangers on behalf of the Dealers) by
the publication of a supplement thereto, in a form approved by the
Dealers, in the light of such change in condition. The Offering Circular
shall, as specified therein, be deemed to incorporate by reference
therein the most recently published annual accounts (if any) of each
Issuer and the Guarantor and the most recently published annual report of
the Guarantor from time to time. Upon any new financial statements being
incorporated in the Offering Circular as aforesaid or upon the
publication of a revised Offering Circular or a supplement to the
Offering Circular, the Issuers or the Guarantor (as the case may be)
shall promptly supply to each Dealer and the Agent such number of copies
of such financial statements, revised Offering Circular or supplement as
each Dealer or the Agent (as the case may be) may reasonably request.
Until a Dealer receives such financial statements, revised Offering
Circular or supplement, the definition of "Offering Circular" in Clause
1(1) shall, in relation to such Dealer, mean the Offering Circular prior
to the publication of such financial statements, revised Offering
Circular or supplement.
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(3) LISTING
The Issuers and the Guarantor shall cause an initial application to be
made for Notes issued under the Program to be listed on the Luxembourg
Stock Exchange or on such other Stock Exchange as the Issuers, the
Guarantor and the Arrangers may agree. In connection with such
application in respect of any Series of Notes which is intended to be so
listed, the relevant Issuer and the Guarantor (if applicable) shall
endeavour to obtain the listing as promptly as reasonably practicable and
the relevant Issuer and the Guarantor (if applicable) shall make
reasonable endeavours to furnish any and all documents, instruments,
information and undertakings that may be necessary or advisable in order
to obtain and maintain the listing. If, after the preparation of the
Offering Circular for submission to the relevant Stock Exchange and
before whichever is the later of the Issue Date of any Notes and the date
on which listing becomes effective:
(a) there is a significant change which is material in the context of
the Notes affecting any matter contained in the Offering Circular
whose inclusion was required by the relevant Stock Exchange; or
(b) a significant new matter arises which is material in the context of
the Notes and the inclusion of information in respect of which would
have been so required if it had arisen when the Offering Circular
was prepared,
the relevant Issuer and the Guarantor shall give to the Listing Agent and
to each Dealer full information about the change or matter and shall
publish such supplementary listing particulars (in a form approved by the
Listing Agent) as may be required by the relevant Stock Exchange, and
shall otherwise comply with the Listing Rules in that regard.
Each Issuer and the Guarantor shall comply with any undertakings given by
it from time to time to the relevant Stock Exchange(s) in connection with
any Notes listed on such Stock Exchange(s) or the listing thereof and,
without prejudice to the generality of the foregoing, shall furnish or
procure to be furnished to the relevant Stock Exchange(s) all such
information as the relevant Stock Exchange(s) may require in connection
with the listing on such Stock Exchange(s) of any Notes.
If any Notes cease to be listed on the relevant Stock Exchange, the
relevant Issuer and the Guarantor shall endeavour promptly to list such
Notes on a stock exchange to be agreed between the Issuers, the Guarantor
and the relevant Dealers.
(4) AGENCY AGREEMENT, DEED OF COVENANT AND DEED OF GUARANTEE
Each Issuer and the Guarantor undertakes that it will not:
(a) without prior consultation with the Dealers terminate the Agency
Agreement, the Deed of Covenant or the Deed of Guarantee or effect
or permit to become effective any amendment to the Agency Agreement,
the Deed of Covenant or the Deed of Guarantee which, in the case of
an amendment, would or might adversely affect the interests of any
Dealer or of any holder of Notes issued before the date of such
amendment; or
(b) without prior consultation with the Dealers appoint a different
Agent or paying agent(s) under the Agency Agreement,
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and each Issuer and the Guarantor will promptly notify each of the
Dealers of any termination of, or amendment to, the Agency Agreement, the
Deed of Covenant or the Deed of Guarantee and of any change in the Agent
or paying agent(s) under the Agency Agreement.
(5) LAWFUL COMPLIANCE
Each Issuer and the Guarantor will at all times ensure that all necessary
action is taken and all necessary conditions are fulfilled (including,
without limitation, the obtaining of all necessary consents) so that it
may lawfully comply with its obligations under the Notes, this Agreement,
the Agency Agreement, the Deed of Covenant and the Deed of Guarantee and,
further, so that it may comply with any applicable laws, regulations and
guidance from time to time promulgated by any governmental and regulatory
authorities relevant in the context of the issue of Notes under the
Program.
(6) AUTHORISED REPRESENTATIVE
Each Issuer and the Guarantor will notify the Dealers immediately in
writing if any of the persons named in the list referred to in paragraph
3 of the Initial Documentation List ceases to be authorised to take
action on behalf of such Issuer and the Guarantor or if any additional
person becomes so authorised together, in the case of an additional
authorised person, with evidence satisfactory to the Dealers that such
person has been so authorised.
(7) AUDITORS' COMFORT LETTERS
Each Issuer and the Guarantor will at the time of the preparation of the
initial Offering Circular and thereafter upon each occasion when the same
may be amended or updated, whether by means of information incorporated
by reference or otherwise (insofar as such amendment or up-dating
concerns or contains financial information about any of the Issuers or
the Guarantor), at the expense of the Issuers and the Guarantor (as to
which each of the Issuers will have joint and several responsibility as
between itself and the Guarantor) and at other times whenever so
requested by the Dealers or any of them (on the basis of reasonable
grounds) deliver to the relevant Dealer a comfort letter or comfort
letters from independent auditors of the Issuers (or any of them) and the
Guarantor in such form and with such content as the relevant Dealer may
reasonably request.
(8) NO OTHER ISSUES
During the period commencing on an Agreement Date in respect of any Notes
and ending on the Issue Date with respect to those Notes, none of the
Issuers or the Guarantor will, without prior consultation with the
relevant Dealer, issue or agree to issue any other listed notes, bonds or
other securities of whatsoever nature (other than Notes to be issued
under the Program) where such notes, bonds or other securities would have
the same maturity and currency as the Notes to be issued on the relevant
Issue Date.
(9) INFORMATION ON NOTEHOLDERS' MEETINGS
Each Issuer or the Guarantor will, at the same time as it is despatched,
furnish the Dealers with a copy of every notice of a meeting of the
holders of the Notes (or any of them) which is despatched at the
14
instigation of the relevant Issuer or the Guarantor (as the case may be)
and will notify the Dealers immediately after it becomes aware that a
meeting of the holders of the Notes (or any of them) has been convened by
holders of the Notes.
(10) RATING
Each Issuer (failing whom the Guarantor) undertakes promptly to notify
the Dealers of any change in the rating given by Standard & Poor's,
Moody's or such other rating agency as notified to the Dealers for any of
the Notes to be issued under the Program by it, or upon it becoming aware
that such rating is listed on 'Creditwatch' or other similar publication
of formal review by the relevant rating agency.
6. INDEMNITY
(1) Without prejudice to the other rights or remedies of the Dealers, each
Issuer (severally as to itself) and the Guarantor (jointly and severally
with the relevant Issuer and severally as to itself) undertakes to the
Arranger and each Dealer that if that Arranger or Dealer or any Relevant
Party relating to that Arranger or Dealer incurs any liability, damages,
cost, loss or expense (including, without limitation, legal fees, costs
and expenses) (a "Loss") arising out of, in connection with, or based on:
(a) any failure by the relevant Issuer to issue on the agreed Issue Date
any Notes which a Dealer has agreed to purchase (unless such failure
is as a result of the failure by the relevant Dealer to pay the
aggregate purchase price for such Notes); or
(b) any actual or alleged breach of the representations, warranties and
undertakings contained in, or made or deemed to be made by the
relevant Issuer and/or the Guarantor under, this Agreement (any such
allegation being made by a person other than a Relevant Party); or
(c) any untrue or misleading (or allegedly untrue or misleading)
statement, which is material (or allegedly material) in the context
of the Program and the issue and offering of Notes by such Issuer
thereunder, in, or any material omission (or alleged omission) from,
the Offering Circular or any part thereof (any such allegation being
made by a person other than a Relevant Party).
the relevant Issuer or, as the case may be, the Guarantor shall (subject
as provided in subclause (2)) pay to that Arranger or Dealer on demand an
amount equal to such Loss. No Arranger or Dealer shall have any duty or
obligation, whether as fiduciary or trustee for any Relevant Party or
otherwise, to recover any such payment or to account to any other person
for any amounts paid to it under this Clause 6(1).
(2) If any action, proceeding, claim or demand shall be brought or asserted
against any Relevant Party in respect of which an indemnity is to be
sought against another party under Clause 6(1) (the "Indemnifying
Person"), the Relevant Party shall promptly notify the Indemnifying
Person in writing, and the Indemnifying Person shall have the option in
the name of the Relevant Party to assume the defence thereof, including
the employment of legal advisers approved by the Relevant Party (which
approval shall not be unreasonably withheld or delayed) subject to the
payment by the Indemnifying Person of all fees and expenses relating
thereto provided that such legal advisers shall not, save with the
consent of the Relevant Party (which consent shall not be unreasonably
withheld or delayed), also be legal advisers to the Indemnifying Person
15
and provided further that if the defendants in any such action,
proceeding, claim or demand include the Relevant Party and the Relevant
Party shall have reasonably concluded that there may be legal defences
available to the Relevant Party which are different from or additional to
those available to the Indemnifying Person and in the event that the
Indemnifying Person does not wish to assume, or is prevented from
assuming, such different or additional legal defences on behalf of the
Relevant Party, the Relevant Party shall have the right, at the expense
of the Indemnifying Person, to select separate legal advisers to assume
such legal defences and otherwise to participate in the defence of such
action, proceeding, claim or demand on behalf of the Relevant Party.
Upon receipt of notice from the Indemnifying Person of its election so to
assume the defence of any such action, proceeding, claim or demand and
approval by the Relevant Party as aforesaid of legal advisers, the
Indemnifying Person will not be liable to any Relevant Party for any fees
or expenses subsequently incurred by such Relevant Party in connection
with the defence thereof unless:
(i) the Relevant Party shall have employed legal advisers in connection
with the assumption of legal defences in accordance with the proviso
to the preceding paragraph; or
(ii) the Indemnifying Person shall not have employed legal advisers, or
taken other measures, approved by or on behalf of the Relevant Party
to represent such Relevant Party within a reasonable time after
notice has been received by the Indemnifying Person of commencement
of the action or proceedings or the making of any claim or demand;
or
(iii) the Indemnifying Person has authorised the employment of separate
legal advisers by the Indemnifying Person,
in which case the Indemnifying Person will reimburse the Relevant Party
all such reasonable fees and expenses.
Each Relevant Party undertakes not to compromise or settle any such
action, proceedings, claim or demand effected without the written consent
of the Indemnifying Person. Each Indemnifying Person undertakes not to
compromise or settle any such action, proceedings, claims or demands
effected without the written consent of the Relevant Party (consent is
not to be unreasonably withheld or delayed). If any such action,
proceeding, claim or demand shall be settled with the authority and
written consent of the Indemnifying Person or if there be a final
judgment for the plaintiff in relation thereto in respect of which the
Relevant Party is entitled to indemnification hereunder, the Indemnifying
Person agrees to indemnify and hold harmless the Relevant Party from and
against any loss or liability by reason of such settlement or judgment
(other than any fees and expenses incurred in circumstances where the
Indemnifying Person is not to be liable therefor under the preceding
paragraph).
7. AUTHORITY TO DISTRIBUTE DOCUMENTS
Subject to Clause 8 below, each Issuer and the Guarantor hereby
authorises each of the Dealers on behalf of each Issuer and the Guarantor
to provide copies of the Offering Circular and such additional written
information as the relevant Issuer or the Guarantor shall, in writing,
16
provide to and authorise the Dealers so to use to actual and potential
purchasers of Notes.
8. DEALERS' UNDERTAKINGS
(1) Each Dealer agrees to comply with the restrictions and agreements set out
in Appendix B hereto.
(2) Each Dealer acknowledges that:
(i) none of the Issuers nor the Guarantor has authorised it to give any
information or make any representation in connection with any
offering, issue, subscription or sale of any Notes other than those
contained in the Offering Circular or the information approved in
writing and provided by such Issuer or the Guarantor pursuant to
Clause 7;
(ii) it will not circulate any version of the Offering Circular other
than the latest version of the Offering Circular published by such
Issuer and made available to such Dealer from time to time; and
(iii) it shall promptly cease use or distribution of the Offering
Circular or any additional written information provided for in
Clause 7 upon receipt of notice from any Issuer or the Guarantor
that the Offering Circular or such information requires updating or
correction.
(3) Each Dealer undertakes with each of the Issuers, the Guarantor and the
other Dealers to indemnify, defend and hold harmless the Relevant Party
against any losses, liabilities, claims, charges, actions and demands,
and any reasonable out-of-pocket costs and expenses which the Relevant
Party may incur or which may be made against the Relevant Party arising
out of, or in connection with:
(a) the making by such Dealer of any unauthorised representation or the
giving by it of any information which is not contained in the
Offering Circular or otherwise authorised in accordance with Clause
7; or
(b) any failure by such Dealer to observe any of the restrictions or
agreements contained in Appendix B hereto.
(4) If any claim, demand or action is brought against any such Relevant Party
in respect of which indemnity may be sought from a Dealer pursuant to
Clause 8(3), the provisions of Clause 6(2) shall apply, mutatis mutandis,
in relation thereto.
9. FEES, EXPENSES AND STAMP DUTIES
(1) The Issuers and the Guarantor jointly and severally undertake that they
shall:
(a) pay to each Dealer all commissions from time to time agreed in
connection with the sale of any Notes to that Dealer (and any value
added or other similar tax thereon); and
17
(b) pay (together with any value added tax or other similar tax
thereon):
(i) the fees and expenses of their legal advisers and auditors; and
(ii) the cost of listing and maintaining the listing of any Notes to
be issued under the Program which are to be listed on a Stock
Exchange;
(2) The Issuers and the Guarantor jointly and severally undertake that they
shall:
(a) pay (together with any value added tax or other similar tax
thereon):
(i) the fees and expenses payable to the Agent and any paying
agents;
(ii) all expenses (other than those of the Agent, any paying agent
or the Dealers) in connection with the issue, authentication,
packaging and initial delivery of Notes and the preparation of
Global Notes, this Agreement, the Agency Agreement, the Deed of
Guarantee and the preparation and printing of Notes, the
Offering Circular and any amendments or supplements thereto
(including the updating of any legal opinions issued pursuant
to Clause 3(4) and of any auditors' comfort letters issued
pursuant to Clause 5(7)); and
(iii) the cost of any publicity agreed in writing by any Issuer or
the Guarantor in connection with the Program or any issue of
any Notes;
(b) pay to UBS Warburg such amount as is separately agreed in relation
to the fees and disbursements of the legal advisers appointed to
represent the Dealers (including any value added tax or other
similar tax thereon) in connection with the negotiation,
preparation, execution and delivery of this Agreement, the Agency
Agreement, the Deed of Covenant, the Deed of Guarantee and any
documents referred to in any of them and any other documents
required in connection with the creation of the Program; and
(c) pay promptly, and in any event before any penalty becomes payable,
any stamp, documentary, registration or similar duty or tax
(including any stamp duty reserve tax) payable in Germany, the
United States of America, the United Kingdom, Switzerland or the
Grand Duchy of Luxembourg in connection with the entry into,
performance, enforcement or admissibility in evidence of this
Agreement, any communication pursuant hereto, the Agency Agreement,
the Deed of Covenant, the Deed of Guarantee or any Note and shall
indemnify each Dealer against any liability with respect to or
resulting from any delay in paying or omission to pay any such duty
or tax.
10. TERMINATION OF APPOINTMENT OF DEALERS
The Issuers, the Guarantor or (as to itself) a Dealer may terminate the
arrangements described in this Agreement by giving not less than 30 days'
written notice to the other parties hereto. The Issuers or the Guarantor
may terminate the appointment of a Dealer or Dealers by giving not less
than 30 days' written notice to such Dealer or Dealers (with a copy
promptly thereafter to all the other Dealers and the Agent). Termination
shall not affect any rights or obligations (including but not limited to
18
those arising under Clause 6, 8 or 9) which have accrued at the time of
termination or which accrue thereafter in relation to any act or omission
or alleged act or omission which occurred prior to such time.
11. APPOINTMENT OF NEW DEALERS
(1) Nothing in this Agreement shall prevent the Issuers or the Guarantor from
appointing one or more New Dealers for the duration of the Program or,
with regard to a particular issue of Notes, the relevant Issuer and the
Guarantor (if applicable) from appointing one or more New Dealers for the
purposes of that issue, in either case upon the terms of this Agreement
and provided that, unless such appointment is effected pursuant to a
Subscription Agreement:
(a) any New Dealer shall have first delivered to the Issuers and the
Guarantor a Dealer Accession Letter; and
(b) the Issuers and the Guarantor shall have delivered to such New
Dealer a Confirmation Letter.
Upon receipt of the relevant Confirmation Letter or execution of the
relevant Subscription Agreement, as the case may be, each such New Dealer
shall, subject to the terms of the relevant Dealer Accession Letter and
the relevant Confirmation Letter or the relevant Subscription Agreement,
as the case may be, become a party to this Agreement, vested with all
authority, rights, powers, duties and obligations of a Dealer as if
originally named as a Dealer hereunder provided that, except in the case
of the appointment of a New Dealer for the duration of the Program,
following the issue of the Notes of the relevant Tranche, the relevant
New Dealer shall have no further such authority, rights, powers, duties
or obligations except such as may have accrued or been incurred prior to
or in connection with the issue of such Notes.
(2) The Issuers and/or the Guarantor shall promptly notify the Agent and the
other Dealers of any appointment of a New Dealer for the duration of the
Program by supplying to such parties a copy of any Dealer Accession
Letter and Confirmation Letter. No such notice shall be required to be
given in the case of an appointment of a New Dealer for a particular
issue of Notes.
12. INCREASE IN THE AGGREGATE NOMINAL AMOUNT OF THE PROGRAM
(1) From time to time the Issuers and the Guarantor may wish to increase the
aggregate nominal amount of the Notes that may be issued under the
Program. In such circumstances, the Issuers and the Guarantor may request
such an increase (subject as set out in subclause (2)) by delivering to
the Listing Agent and the Dealers the letter substantially in the form
set out in Appendix D hereto. Unless notice to the contrary is received
by the Issuers or the Guarantor no later than 10 days after notice was
given to the Dealers and the Listing Agent, each such Dealer and the
Listing Agent will be deemed to have given its consent to the increase in
the nominal amount of the Program, whereupon all references in this
Agreement and the Procedures Memorandum to a Euro Medium Term Note
Program of a certain nominal amount, shall be and shall be deemed to be
references to a Euro Medium Term Note Program of the increased nominal
amount.
(2) Notwithstanding subclause (1), the right of the Issuers and the Guarantor
to increase the aggregate nominal amount of the Program shall be subject
to each Dealer having received and found satisfactory all the documents
19
and confirmations described in the Initial Documentation List (with such
changes as may be relevant, with reference to the circumstances at the
time of the proposed increase as are agreed between the Issuers, the
Guarantor and the Dealers), and the delivery of any further conditions
precedent that any of the Dealers may reasonably require, including,
without limitation, the production of a supplementary Offering Circular
by the Issuers and the Guarantor and any further or other documents
required by the relevant Stock Exchange(s) for the purpose of listing the
Notes to be issued under the Program on the relevant Stock Exchange(s).
The Arrangers shall circulate to the Dealers all the documents and
confirmations described in the Initial Documentation List and any further
conditions precedent so required. Any Dealer must notify the Arrangers,
the Issuers and the Guarantor within 10 business days of receipt if it
considers, in its reasonable opinion, such documents, confirmations and,
if applicable, such further conditions precedent to be unsatisfactory.
13. STATUS OF THE ARRANGERS
(1) Each of the Dealers agrees that each Arranger has only acted in an
administrative capacity to facilitate the establishment and/or
maintenance of the Program and has no responsibility to it for (a) the
adequacy, accuracy, completeness or reasonableness of any representation,
warranty, undertaking, agreement, statement or information in the
Offering Circular, any Pricing Supplement, this Agreement or any
information provided in connection with the Program or (b) the nature and
suitability of it of all legal, tax and accounting matters and all
documentation in connection with the Program or any Tranche.
(2) The Arrangers shall have only those duties, obligations and
responsibilities expressly specified in this Agreement.
14. COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of which
taken together shall constitute one and the same instrument.
15. COMMUNICATIONS
(1) All communications shall be by fax or letter delivered by hand or (but
only where specifically provided in the Procedures Memorandum) by
telephone. Each communication shall be made to the relevant party at the
fax number or address or telephone number and, in the case of a
communication by fax or letter, marked for the attention of, or (in the
case of a communication by telephone) made to, the person(s) from time to
time specified in writing by that party to the other for the purpose. The
initial telephone number, fax number and address of, and person(s) so
specified by, each party are set out on the signature pages hereof.
(2) A communication shall be deemed received (if by fax) when an
acknowledgement of receipt is received, (if by telephone) when made or
(if by letter) when delivered, in each case in the manner required by
this clause. Every communication shall be irrevocable save in respect of
any manifest error therein.
16. BENEFIT OF AGREEMENT
(1) This Agreement shall be binding upon and shall inure for the benefit of
each Issuer, the Guarantor and each Dealer and their respective
successors and permitted assigns.
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(2) The Dealers may assign or transfer their rights or obligations under this
Agreement with the prior written consent of the Issuers and the Guarantor
(except for an assignment and/or transfer of all of a Dealer's rights and
obligations under this Agreement by operation of law resulting directly
from a merger by, or sale of all or substantially of all the assets of,
such Dealer). If the Dealers assign their rights or transfer their
obligations as provided in this clause, the relevant assignee or
transferee shall be treated as if it were a party to this Agreement with
effect from the date on which such assignment or transfer takes effect;
provided that any transfer shall only become effective when the Issuers
and the Guarantor have received an undertaking from the transferee to be
bound by this Agreement and to perform the obligations transferred to it
(in form and substance reasonably satisfactory to the Issuers and the
Guarantor).
17. CURRENCY INDEMNITY
If, under any applicable law and whether pursuant to a judgment being
made or registered against any Issuer and/or (as the case may be) the
Guarantor or in the liquidation, insolvency or analogous process of the
relevant Issuer and/or (as the case may be) 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
relevant Dealer 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) actually received by the relevant Dealer
falls short of the amount each 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 each
Dealer against the amount of such shortfall. For the purpose of this
clause "rate of exchange" means the rate at which the relevant Dealer is
able on the London foreign exchange market on the relevant date to
purchase the required currency with the other currency and shall take
into account any premium and other reasonable costs of exchange. The
Dealers 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 17.
18. CALCULATION AGENT
(1) In the case of any Series of Notes which require the appointment of a
Calculation Agent the Agent shall act as Calculation Agent, unless (a)
the relevant Issuer or the Guarantor appoints another person as
Calculation Agent with the approval of the relevant Dealer or (in the
case of a syndicated issue) the Lead Manager or (b) the relevant Dealer
or (in the case of a syndicated issue) the Lead Manager requests the
relevant Issuer to appoint such Dealer or Lead Manager, or a person
nominated by such Dealer or Lead Manager (a "Nominee"), as Calculation
Agent.
(2) Should such an appointment be made by the relevant Issuer or Guarantor
(with such approval) or such a request be made to the relevant Issuer and
agreed to by the relevant Issuer and the Guarantor, the appointment of
that other person, Dealer, Lead Manager or Nominee shall be automatic
upon the issue of the relevant Series of Notes, and shall, except as
agreed, be on the terms set out in the Calculation Agency Agreement
21
attached as Appendix A to the Agency Agreement, and no further action
shall be required to effect the appointment of such Dealer, other person,
Lead Manager or Nominee as Calculation Agent in relation to that Series
of Notes. The name of the other person, Dealer, Lead Manager or Nominee
so appointed will be entered in the relevant Pricing Supplement.
19. STABILISATION
In connection with the distribution of any Tranche of Notes, the Dealer
(if any) designated as stabilising manager in the applicable Pricing
Supplement may over-allot or effect transactions which stabilise or
maintain the market price of Notes of the Series of which such Tranche
forms a part at a level which might not otherwise prevail, but in doing
so such Dealer shall act as principal and not as agent of the relevant
Issuer. Such stabilising, if commenced, may be discontinued at any time.
Any loss resulting from over-allotment and stabilisation shall be borne,
and any net profit arising therefrom shall be retained, by the
stabilising manager for its own account. Such stabilising shall be done
in accordance with the applicable laws.
20. 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.
21. GOVERNING LAW AND JURISDICTION
(1) This Agreement and every agreement for the issue and purchase of Notes as
referred to in Clause 2 shall be governed by, and construed in accordance
with, the laws of England.
(2) Each party to this Agreement hereby irrevocably agrees for the exclusive
benefit of the other parties to this Agreement 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 to this Agreement hereby irrevocably waives any objection which it
may have to the laying of the venue of any Proceedings in any such courts
and any claim that any such Proceedings have been brought in an
inconvenient forum and hereby further irrevocably agrees that a judgment
in any Proceedings brought in the English courts shall be conclusive and
binding upon such party 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 herein shall limit any right to
take Proceedings against any party to this Agreement 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 CSC US,
CSC Germany and the Guarantor hereby appoints CSC UK as its agent for
service of process and agrees that, in the event of ceasing so to act or
ceasing to be registered in England, it will appoint another person as
its agent for service of process in England in respect of any
Proceedings.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
22
APPENDIX A
INITIAL DOCUMENTATION LIST
1. A certified copy of:
(a) the Certificate of Incorporation of CSC US;
(b) the Memorandum and Articles of Association of CSC UK;
(c) the Articles of Association of CSC Germany; and
(d) the Articles of Incorporation of the Guarantor,
unless these have not changed since the date they were last provided to
the Dealers.
2. A certified copy of all resolutions and other authorisations required to
be passed or given, and evidence of any other action required to be
taken, on behalf of each Issuer and the Guarantor, as applicable:
(a) to approve this Agreement, the Agency Agreement, the Deed of
Covenant, the creation of the Program, the issue of Notes under the
Program and the execution of the Deed of Guarantee by the Guarantor;
(b) to authorise appropriate persons to execute each of this Agreement,
the Agency Agreement, the Deed of Covenant, the Deed of Guarantee
and Notes issued under the Program and to take any other action in
connection therewith; and
(c) to authorise appropriate persons to enter into agreements with any
Dealer on behalf of each Issuer and the Guarantor to issue Notes in
accordance with Clause 2 of this Agreement.
3. A certified list of the names, titles and specimen signatures of the
persons authorised on behalf of each Issuer and the Guarantor in
accordance with paragraph 2(c) above unless these have not changed since
the date they were last provided to the Dealers.
4. Certified copies of any other governmental or other consents (including,
but not limited to, confirmation that the Bank of England has been
notified of the establishment of the Program) required for each Issuer
and the Guarantor to issue Notes under the Program, for the Guarantor to
guarantee Notes issued under the Program, for each Issuer and the
Guarantor (as the case may be) to execute and deliver this Agreement, the
Deed of Covenant and the Agency Agreement and for each Issuer and the
Guarantor to fulfil its respective obligations under this Agreement, the
Agency Agreement, the Deed of Covenant and the Notes.
5. Confirmation that master Global Notes (from which copies may be made for
each Tranche), duly executed by a person or persons authorised to take
action on behalf of the relevant Issuer as specified in paragraph (2)(b)
above, have been delivered to the Agent.
6. Legal opinions addressed to each of the Dealers dated on or after the
date of this Agreement, in such form and with such content as the Dealers
may reasonably require, from:
23
(a) Freshfields Bruckhaus ▇▇▇▇▇▇▇▇, legal advisers to CSC Germany as to
German law;
(b) Cravath, Swaine & ▇▇▇▇▇, legal advisers to CSC US as to U.S. law;
(c) Homburger Rechtsanwalte, legal advisers to the Guarantor as to Swiss
law; and
(d) ▇▇▇▇▇ & ▇▇▇▇▇, legal advisers to the Dealers as to English law.
7. A conformed copy of the Agency Agreement and the Deed of Guarantee and
confirmation that an executed copy of each such document has been
delivered to the Paying Agents and the Common Depositary for Euroclear
and Clearstream, Luxembourg.
8. A conformed copy of the Deed of Covenant and confirmation that an
executed copy of such deed has been delivered to the Agent and the Common
Depositary for Euroclear and Clearstream, Luxembourg.
9. A printed final version of the Offering Circular.
10. Confirmation from the Listing Agent that the Luxembourg Stock Exchange
will list Notes to be issued under the Program.
11. A comfort letter from the independent auditors of each Issuer and the
Guarantor, in such form and with such content as the Dealers may
reasonably request.
12. Confirmation that the Program has been rated A by Standard & Poor's and
A2 by Moody's.
▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
(1) The Notes have not been and will not be registered under the Securities
Act of 1933, as amended (the "Securities Act"), and may not be offered or
sold within the United States or to, or for the account or benefit of,
U.S. persons except in accordance with Regulation S under the Securities
Act or pursuant to an exemption from the registration requirements of the
Securities Act. Each Dealer represents and agrees that it and any of its
affiliates and any person acting on its or their behalf have offered and
sold any Notes, and will offer and sell any Notes (i) as part of their
distribution at any time and (ii) otherwise until 40 days after the
completion of the distribution of all Notes of the Tranche of which such
Notes are a part, as determined and notified by the Agent to such Dealer,
as provided below, only in accordance with Rule 903 of Regulation S under
the Securities Act. Accordingly, each Dealer, its affiliates and any
persons acting on its or their behalf have not engaged and will not
engage in any directed selling efforts with respect to the Notes, and
have complied and will comply with the offering restrictions requirement
of Regulation S. Each Dealer who has purchased Notes of a Tranche
hereunder (or in the case of a sale of a Tranche of Notes issued to or
through more than one Dealer, each of such Dealers as to the Notes of
such Tranche purchased by or through it) shall determine and certify to
the Agent the completion of the distribution of the Notes of such
Tranche. On the basis of such certification or certifications, the Agent
agrees to notify such Dealer or Dealers of the end of the distribution
compliance period with respect to such Tranche. Each Dealer also agrees
that, at or prior to confirmation of sale of Notes, it will have sent to
each distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases Notes from it or any of its affiliates
or any person acting on its or their behalf during the distribution
compliance period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the completion of the distribution of the Securities as
determined and notified by the Agent for the Securities to
[name of Dealer(s)], except in either case in accordance with
Regulation S under the Securities Act. Terms used above have
the meanings given to them by Regulation S."
Terms used in this sub-clause 1(1) have the meanings given to them by
Regulation S.
(2) In addition:
(1) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), each Dealer (a) represents that
it has not offered or sold, and agrees that during the restricted
period it will not offer or sell, Notes in bearer form to a person
who is within the United States or its possessions or to a United
States person, and (b) represents that it has not delivered and
25
agrees that it will not deliver within the United States or its
possessions definitive Notes in bearer form that are sold during the
restricted period;
(2) each Dealer represents that it has and agrees that throughout the
restricted period it will have in effect procedures reasonably
designed to ensure that its employees or agents who are directly
engaged in selling Notes in bearer form are aware that such Notes
may not be offered or sold during the restricted period to a person
who is within the United States or its possessions or to a United
States person, except as permitted by the D Rules;
(3) if it is a United States person, each Dealer represents that it is
acquiring the Notes for purposes of resale in connection with their
original issuance and if it retains Notes in bearer form for its own
account, it will only do so in accordance with the requirements of
U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6); and
(4) with respect to each affiliate that acquires Notes from a Dealer for
the purpose of offering or selling such Notes during the restricted
period, such Dealer repeats and confirms the representations and
agreements contained in sub-clauses (1), (2) and (3) on such
affiliate's behalf.
Terms used in this sub-clause 1(2) have the meanings given to them by the
U.S. Internal Revenue Code and regulations thereunder, including the D
Rules.
(3) Each Dealer represents that it has not entered and agrees that it will
not enter into any contractual arrangement with respect to the
distribution or delivery of Notes, so as to cause any person to become a
"distributor" within the meaning of Regulation S or the D Rules except
with their affiliates or with the prior written consent of the relevant
Issuer and the Guarantor (in which case such Dealer will obtain for the
benefit of the Issuer and the Guarantor the agreement of such person to
the representations and agreements contained in Clauses 1(1) and 1(2)
above).
(4) Each issue of Indexed Notes and Dual Currency Notes shall be subject to
such additional U.S. selling restrictions as the relevant Issuer and the
relevant Dealer or Dealers shall agree as a term of the issue and
purchase of such Notes, which additional selling restrictions shall be
set out in the Pricing Supplement. Each Dealer agrees that it shall
offer, sell and deliver such Notes only in compliance with such
additional U.S. selling restrictions.
2. UNITED KINGDOM
Each Dealer represents and agrees that:
(i) in relation to Notes which have a maturity of one year or more, it
has not offered or sold and, prior to the expiry of the period of
six months from the Issue Date of such Notes, will not offer or sell
any such Notes to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in
the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995 (as amended);
26
(ii) it has only issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with
the issue of any Notes to a person who is of a kind described in
Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person
to whom such document may otherwise lawfully be issued or passed on;
and
(iii) it has complied and will comply with all applicable provisions of
the FSA with respect to anything done by it in relation to any Notes
in, from or otherwise involving the United Kingdom.
3. JAPAN
The Notes have not been and will not be registered under the Securities
and Exchange Law of Japan (the "Securities and Exchange Law") and each
Dealer agrees that it will not offer or sell any Notes, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan
(which term as used herein means any person resident in Japan, including
any corporation or other entity organised under the laws of Japan), or to
others for re-offering or resale, directly or indirectly, in Japan or to
a resident of Japan except in compliance with the Securities and Exchange
Law and any other applicable laws or regulations of Japan.
4. FRANCE
Each of the Dealers, the Issuer and the Guarantor represents and agrees
that, in connection with their initial distribution, it has not offered
or sold and will not offer or sell, directly or indirectly, Notes to the
public in the Republic of France, and has not distributed or caused to be
distributed and will not distribute or cause to be distributed to the
public in the Republic of France, the Offering Circular or any other
offering material relating to the Notes, and that such offers, sales and
distributions have been and shall only be made in France to (i) qualified
investors (investisseurs qualifies) and/or (ii) a restricted circle of
investors (cercle restreint d'investisseurs), all as defined in and in
accordance with Article 6 of ordonnance no. 67-833 dated 28th September,
1967 (as amended) and decret no. 98-880 dated 1st October, 1998.
Where an issue of Notes is effected as an exception to the rules relating
to an ▇▇▇▇▇ public a l'epargne in the Republic of France (public offer
rules) by way of an offer to a restricted circle of investors (as
referred to in (ii) above), such investors must, to the extent that the
Notes are offered to 100 or more of such investors, provide certification
as to their personal relationship of a professional or family nature with
a member of the management of the Issuer. In the context of such
exception, investors in the Republic of France may only participate in
the issue of Notes for their own account in accordance with the
conditions set out in decret no. 98-880 dated 1st October, 1998. Notes
may only be issued, directly or indirectly, to the public in the Republic
of France in accordance with articles 6 and 7 of ordonnance no. 67-833
dated 28th September, 1967 (as amended).
5. GERMANY
In connection with the initial placement of any Notes in Germany, each
Dealer agrees that (i) unless otherwise provided in the relevant
Subscription Agreement or Pricing Supplement, Notes will be offered and
sold only in compliance with an exemption from the prospectus requirement
of the German Securities Selling Prospectus Act Wertpapier-
27
Verkaufsprospektgesetz) of 13th December, 1990, as amended, and (ii) in
any event Notes will be offered and sold in Germany only in accordance
with the requirements of such Act.
6. THE NETHERLANDS
Each Dealer represents and agrees that it has not, directly or
indirectly, offered or sold and will not, directly or indirectly, offer
to sell in The Netherlands any Notes other than to persons who trade or
invest in securities in the conduct of a profession or business (which
include banks, stockbrokers, insurance companies, pension funds, other
institutional investors and finance companies and treasury departments of
large enterprises).
7. GENERAL
Each Dealer will (to the best of its knowledge and belief) comply with
all applicable laws and regulations in force in any jurisdiction in which
it purchases, offers, sells or delivers Notes or possesses or distributes
the Offering Circular and will obtain any consent, approval or permission
required by it for the purchase, offer, sale or delivery by it of Notes
under the laws and regulations in force in any jurisdiction to which it
is subject or in which it makes such purchases, offers, sales or
deliveries and none of the Issuers, the Guarantor nor any other Dealer
shall have responsibility therefor.
None of the Issuers, the Guarantor nor any of the Dealers represents that
Notes may at any time lawfully be sold in compliance with any applicable
registration or other requirements in any jurisdiction, or pursuant to
any exemption available thereunder, or assumes any responsibility for
facilitating such sale.
With regard to each Tranche, the relevant Dealer will be required to
comply with such other additional restrictions as the relevant Issuer,
the Guarantor and the relevant Dealer shall agree and as shall be set out
in the applicable Pricing Supplement.
28
APPENDIX C
PART I
FORM OF DEALER ACCESSION LETTER - PROGRAM
[Date]
To: CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
(the "Issuers")
and: CIBA SPECIALTY CHEMICALS HOLDING INC.
(the "Guarantor")
Attention:
Dear Sirs,
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
U.S.$2,000,000,000 Euro Medium Term Note Program
We refer to the amended and restated Program agreement dated 30th March, 2001
entered into in respect of the above Euro Medium Term Note Program (the
"Program") and made between the Issuers, the Guarantor and the Dealers party
thereto (which agreement, as amended from time to time, is herein referred to
as the "Program Agreement").
CONDITIONS PRECEDENT
We confirm that we are in receipt of the documents referenced below:
(i) a copy of the Program Agreement;
(ii) a copy of the current version all documents referred to in Appendix A of
the Program Agreement;
and have found them to our satisfaction or (in the case of documents referred
to in (ii) above) have waived production of such documents.
For the purposes of the Program Agreement our Notice Details are as follows:
(insert name, address, telephone, telex (+ answerback) and attention).
29
In consideration of appointment by the Issuers and the Guarantor of us as a
Dealer under the Program Agreement we hereby undertake, for the benefit of
each of the Issuers, the Guarantor and the other Dealers, that we will perform
and comply with all the duties and obligations expressed to be assumed by a
Dealer under the Program Agreement.
This letter is governed by, and shall be construed in accordance with, English
law.
Yours faithfully,
[Name of New Dealer]
cc: The Chase Manhattan Bank (Agent)
[names of Dealers at the date of accession]
30
PART II
FORM OF CONFIRMATION LETTER - PROGRAM
[Date]
To: [Name and address of new Dealer]
Dear Sirs,
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
U.S.$2,000,000,000 Euro Medium Term Note Program
We refer to the amended and restated Program Agreement dated 30th March, 2001
(such agreement, as amended from time to time, the "Program Agreement")
entered into in respect to the above Euro Medium Term Note Program and hereby
acknowledge receipt of your Dealer Accession Letter to us dated [ ].
We hereby confirm that, with effect from the date hereof, you shall become a
party to the Program Agreement in accordance with Clause 11 of the Program
Agreement.
Yours faithfully,
For and on behalf of
CIBA SPECIALTY CHEMICALS CORPORATION
By:
For and on behalf of
CIBA SPECIALTY CHEMICALS PLC
By:
For and on behalf of
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
By:
31
For and on behalf of CIBA SPECIALTY CHEMICALS HOLDING INC.
By: By:
cc: The Chase Manhattan Bank (Agent)
[names of other Dealers at the date of accession]
32
PART III
FORM OF DEALER ACCESSION LETTER - NOTE ISSUE
[DATE]
To: CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
(the "Issuers")
and: CIBA SPECIALTY CHEMICALS HOLDING INC.
(the "Guarantor")
Attention:
Dear Sirs,
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
U.S.$2,000,000,000 Euro Medium Term Note Program
We refer to the amended and restated Program Agreement dated 30th March, 2001
entered into in respect of the above Euro Medium Term Note Program (the
"Program") and made between the Issuers, the Guarantor and the Dealers party
thereto (which agreement, as amended from time to time, is herein referred to
as the "Program Agreement").
Conditions Precedent
We confirm that we are in receipt of the documents referenced below:
(i) a copy of the Program Agreement;
(ii) a copy of current versions of all documents referred to in Appendix A of
the Program Agreement;
and have found them to our satisfaction or (in the case of documents referred
to in (ii) above) have waived production of such documents.
For the purposes of the Program Agreement our Notice Details are as follows:
(insert name, address, telephone, telex (+ answerback) and attention).
33
In consideration of appointment by the Issuers and the Guarantor of us as a
Dealer in respect of the issue of [ ] Notes due [ ] (the "Issue") under the
Program Agreement we hereby undertake, for the benefit of each of the Issuers,
the Guarantor and each of the other Dealers that in relation to the Issue we
will perform and comply with all the duties and obligations expressed to be
assumed by a Dealer under the Program Agreement.
This letter is governed by, and shall be construed in accordance with, English
law.
Yours faithfully,
[Name of New Dealer]
By:
cc: The Chase Manhattan Bank (Agent)
[names of Dealers at the date of accession]
34
PART IV
FORM OF CONFIRMATION LETTER - NOTE ISSUE
[Date]
To: [Name and address of new Dealer]
Dear Sirs,
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
U.S.$2,000,000,000 Euro Medium Term Note Program
We refer to the amended and restated Program Agreement dated 30th March, 2001
(such Agreement, as amended from time to time, the "Program Agreement")
entered into in respect to the above Euro Medium Term Note Program and hereby
acknowledge receipt of your Dealer Accession Letter to us dated [ ].
We hereby confirm that, with effect from the date hereof in respect of the
issue of [ ] Notes due [ ] (the "Issue"), you shall become a party to the
Program Agreement in accordance with Clause 11 of the Program Agreement.
Yours faithfully,
CIBA SPECIALTY CHEMICALS CORPORATION
By:
CIBA SPECIALTY CHEMICALS PLC
By:
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
By:
35
CIBA SPECIALTY CHEMICALS HOLDING INC.
By: By:
cc: The Chase Manhattan Bank (Agent)
[names of Dealers at the date of accession]
36
APPENDIX D
LETTER REGARDING INCREASE IN THE NOMINAL AMOUNT
OF THE PROGRAM
[Date]
To: The Dealers and the Listing Agent (as those expressions are
defined in the amended and restated Program Agreement dated
30th March, 2001 as amended from time to time, (the "Program
Agreement"))
Dear Sirs,
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
U.S.$2,000,000,000 Euro Medium Term Note Program
We hereby request, pursuant to Clause 12 of the Program Agreement, that the
aggregate nominal amount of the above Program be increased to U.S.$[ ] on and
from [insert date]. We would like to draw your attention to such Clause 12,
under which, should you fail to object in accordance with the provisions set
out in that clause, this increase shall (subject as set out below) take effect
on and from [insert date], whereupon all references in the Program Agreement,
the Agency Agreement, the Deed of Covenant and the Deed of Guarantee will be
deemed amended accordingly. We understand that this increase is subject to the
satisfaction of the conditions set out in Clause 12 of the Program Agreement.
Terms used in this letter have the meanings given to them in the Program
Agreement.
Yours faithfully,
For and on behalf of
CIBA SPECIALTY CHEMICALS CORPORATION
By:
CIBA SPECIALTY CHEMICALS PLC
By:
37
For and on behalf of
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
By:
For and on behalf of CIBA SPECIALTY CHEMICALS HOLDING INC.
By: By:
cc: UBS Warburg
(for distribution to the existing Dealers).
The Chase Manhattan Bank (Agent)
38
APPENDIX E
FORM OF SUBSCRIPTION AGREEMENT
[CURRENCY AND AMOUNT]
[CIBA SPECIALTY CHEMICALS CORPORATION]
[CIBA SPECIALTY CHEMICALS PLC]
[CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[DESCRIPTION OF NOTES]
unconditionally and irrevocably guaranteed by
CIBA SPECIALTY CHEMICALS HOLDING INC.
[DATE]
To: [ ]
(the "Managers")
c/o [ ]
(the "Lead Manager")
Dear Sirs,
[CIBA SPECIALTY CHEMICALS CORPORATION] [CIBA SPECIALTY CHEMICALS PLC] [CIBA
SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH] (the "Issuer") proposes to issue
[CURRENCY AND AMOUNT] [DESCRIPTION OF NOTES] (the "Notes") unconditionally and
irrevocably guaranteed by CIBA SPECIALTY CHEMICALS HOLDING INC. (the
"Guarantor") pursuant to its U.S.$2,000,000,000 Euro Medium Term Note Program.
The terms of the issue shall be as set out in the form of Pricing Supplement
attached to this Agreement as Annexe A.
This Agreement is supplemental to the amended and restated Program Agreement
(the "Program Agreement") dated 30th March, 2001 made between CIBA SPECIALTY
CHEMICALS CORPORATION, CIBA SPECIALTY CHEMICALS PLC and CIBA
SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH (together the "Issuers"), the
Guarantor and the Dealers party thereto. All terms with initial capitals used
herein without definition have the meanings given to them in the Program
Agreement.
We wish to record the arrangements agreed between us in relation to the issue:
39
*[1. Conditions Precedent
This Agreement appoints each Manager which is not a party to the Program
Agreement (each a "New Dealer") as a Dealer under the Program Agreement
for the purposes of the issue of the Notes. The Lead Manager confirms
that it is in receipt of the documents referenced below:
(i) a copy of the Program Agreement;
(ii) a copy of all documents referred to in Appendix A of the Program
Agreement; and
(iii) a copy of the Agency Agreement;
and has confirmed with (each of) the New Dealer(s) that it/they has/have
found them to be satisfactory or (in the case of the documents referred
to in (ii)) has/have waived such production.
For the purposes of the Program Agreement the details of the Lead Manager
for service of notices are as follows:
(insert name, address, telephone, telex (# answerback) and attention).
In consideration of the Issuer and the Guarantor appointing the New
Dealer(s) as (a) Dealer(s) in respect of the Notes under the Program
Agreement, each/the New Dealer hereby undertakes, for the benefit of each
of the Issuers, the Guarantor and the other Dealers, that, in relation to
the issue of the Notes, it will perform and comply with all the duties
and obligations expressed to be assumed by a Dealer under the Program
Agreement, a copy of which it acknowledges it has received from the Lead
Manager.]
The Issuer hereby confirms that [each] [the] New Dealer shall be vested
with all authority, rights, powers, duties and obligations of a Dealer in
relation to the issue of Notes as if originally named as a Dealer under
the Program Agreement provided that following the issue of the Temporary
Global Note in respect of the Notes [each] [the] New Dealer shall have no
further such authority, rights, powers, duties and obligations except
such as may have accrued or been incurred prior to, or in connection
with, the issue of such Temporary Global Note and the Notes represented
thereby.
2. Subject to the terms and conditions of the Program Agreement and this
Agreement the Issuer hereby agrees to issue the Notes, the Guarantor
hereby agrees to guarantee the Notes and the Managers jointly and
severally agree to purchase the Notes at a subscription price of [ ] per
cent. of the principal amount of the Notes (the "Subscription Price"),
being the issue price of [ ] per cent. less a selling commission of [ ]
per cent. of such principal amount and a management and underwriting fee
of [ ] per cent. of such principal amount.
3. The net purchase money in respect of the Notes, namely the sum of [ ]
(representing the Subscription Price, less the amount payable in respect
of the Managers' expenses specified in Clause 4 hereof) will be paid by
the Lead Manager on behalf of the Managers to the Issuer at [ ] hours
(London time) on [ ], or at such other time and/or date as the Issuer and
the Lead Manager on behalf of the Managers may agree (the "Closing Date")
against delivery to a common depositary for Clearstream, Luxembourg and
Euroclear Bank S.A./N.V. as operator of the Euroclear System, or any
successor to the business thereof of a temporary global note representing
the Notes, in the manner contemplated in the Program Agreement.
-----------------------------------
* Delete this paragraph for a Dealer-only syndicate.
40
4. The Issuer or, failing the Issuer, the Guarantor shall bear and pay all
costs and expenses incurred in or in connection with the printing of the
Notes, this Agreement and the Pricing Supplement prepared in connection
with the issue of the Notes, the listing of the Notes on the [ ] Stock
Exchange and making initial delivery of the Notes. In addition, the
Issuer or, failing the Issuer, the Guarantor agrees to pay to the Lead
Manager [ ] in respect of reasonable legal, travelling, telex, facsimile,
telephone, postage and costs of any publicity agreed in writing by the
Issuer or the Guarantor incurred and to be incurred by the Managers in
connection with the preparation and management of the issue and
distribution of the Notes which sum may be deducted from the Subscription
Price as provided in Clause 3 hereof.
5. The obligation of the Managers to purchase the Notes is conditional upon:
(i) the conditions set out in Clause 3(2) (other than that set out in
Clause 3(2)(f)) of the Program Agreement being satisfied as of the
Closing Date and without prejudice to the aforesaid, the Offering
Circular dated [ ] [, as supplemented by [ ],] containing all
material information relating to the assets and liabilities,
financial position and profits and losses of the Issuer [and the
Guarantor/Parent] and nothing having happened or being expected to
happen which would require the Offering Circular [, as so
supplemented,] to be [further] supplemented or updated; and
(ii) the delivery to the Lead Manager on the Closing Date of:
(A) legal opinions addressed to the Managers dated the Closing Date
in such form and with such contents as the Lead Manager, on
behalf of the Managers, may reasonably require [from
Freshfields Bruckhaus ▇▇▇▇▇▇▇▇/Cravath, Swaine & ▇▇▇▇▇], the
legal advisers to the Issuer as to [German/United States law,]
from Homburger Rechtsanwalte, the legal advisers to the
Guarantor as to Swiss law, and from ▇▇▇▇▇ & ▇▇▇▇▇, the legal
advisers to the Managers as to English law;
(B) a certificate dated the Closing Date signed by a duly
authorised officer of each of the Issuer and the Guarantor to
the effect stated in paragraph (i) of this Clause;
(C) a comfort letter dated the Closing Date from the independent
auditors of each of the Issuer and the Guarantor, in such form
and with such content as the Managers may reasonably request;
and
(D) [list such other conditions precedent as may be agreed].
If any of the foregoing conditions is not satisfied on or before the
Closing Date, this Agreement shall terminate on such date and the parties
hereto shall be under no further liability arising out of this Agreement
(except for the liability of the Issuer and the Guarantor in relation to
41
expenses as provided in Clause 4 and except for any liability arising
before or in relation to such termination), provided that the Lead
Manager, on behalf of the Managers, may in its discretion waive any of
the aforesaid conditions (other than the conditions precedent contained
in Clause 3(2)(c) of the Program Agreement) or any part of them.
6. In connection with the distribution of the Notes, the Lead Manager may
over-allot or effect transactions in the open market or otherwise with a
view to stabilising or maintaining the market price of the Notes at
levels other than those which might otherwise prevail in the open market,
but in doing so the Lead Manager shall act as principal and not as agent
of the Issuer. Such stabilising if commenced, may be discontinued at any
time. Any loss resulting from over-allotment and stabilisation shall be
borne, and any net profit arising therefrom shall be retained, by the
Lead Manager for its own account. Such stabilisation shall be done in
compliance with all applicable laws.
7. (a) The Lead Manager, on behalf of the Managers, may, after consultation
with the Issuer and the Guarantor if practicable and by notice to
the Issuer and the Guarantor, terminate this Agreement at any time
prior to payment of the net purchase money to the Issuer if in the
opinion of the Lead Manager there shall have been such a change in
national or international financial, political or economic
conditions or currency exchange rates or exchange controls as would
in the view of the Lead Manager be likely to prejudice materially
the success of the offering and distribution of the Notes (whether
in the primary market or in respect of dealings in the Notes in the
secondary market).
(b) Upon such notice being given, this Agreement shall terminate and no
party shall be under any liability to any other in respect thereof
except for the liability of the Issuer and the Guarantor for the
payment of costs and expenses as provided in Clause 4 of this
Agreement, the obligations of the Managers under Clause 8 of the
Program Agreement and the respective obligations of the parties
under Clause 6 of the Program Agreement.
8. (1) This Agreement shall be governed by, and construed in accordance
with, the laws of England.
(2) 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.
(3) Each party to this Agreement hereby irrevocably agrees for the
exclusive benefit of the other parties to this Agreement 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 to this Agreement hereby
irrevocably waives any objection which it may have to the laying of
the venue of any Proceedings in any such courts and any claim that
any such Proceedings have been brought in an inconvenient forum and
hereby further irrevocably agrees that a judgment in any Proceedings
brought in the English courts shall be conclusive and binding upon
such party 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 herein shall limit any
42
right to take Proceedings against the Issuer and/or the Guarantor 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 jurisdiction). The [Issuer and the] Guarantor hereby
appoints [the Issuer/Ciba Specialty Chemicals PLC] as its agent for
service of process and agrees that, in the event of ceasing so to
act or ceasing to be registered in England, it will appoint another
person as its agent for service of process in England in respect of
any Proceedings.
9. This Agreement may be signed 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.
Please confirm that this letter correctly sets out the arrangements agreed
between us.
Yours faithfully,
For: [Issuer]
By:
For: CIBA SPECIALTY CHEMICALS HOLDING INC.
By: By:
We agree to the foregoing.
For: [
]
By:
43
ANNEXE A
[FORM OF PRICING SUPPLEMENT]
44
APPENDIX F
FORM OF DEED OF COVENANT
THIS DEED OF COVENANT is made on 30th March, 2001 by each of Ciba Specialty
Chemicals Corporation, Ciba Specialty Chemicals PLC and Ciba
Spezialitatenchemie Holding Deutschland GmbH (each an "Issuer") in favour of
the account holders of Clearstream Banking, societe anonyme ("Clearstream,
Luxembourg") and Euroclear Bank S.A./N.V. as operator of the Euroclear System
("Euroclear"), or any successor to the business thereof or any other
additional clearing system or systems as are specified in the Pricing
Supplement relating to any Note (as defined below) (each a "Clearing System").
WHEREAS:
(A) Each Issuer has entered into an amended and restated Program Agreement
(the "Program Agreement", which expression includes the same as it may be
amended, supplemented, novated or restated from time to time) dated 30th
March, 2001 with Ciba Specialty Chemicals Holding Inc. (the "Guarantor")
and the Dealers named therein under which the relevant Issuer proposes
from time to time to issue Euro Medium Term Notes (the "Notes"), which
amends and restates the amended and restated program agreement dated 16th
June, 2000 with Ciba Specialty Chemicals Corporation, Ciba Specialty
Chemicals PLC, Ciba Spezialitatenchemie Holdings Deutschland GmbH, the
Guarantor and the Dealers named therein (the "Principal Program
Agreement").
(B) Each Issuer has also entered into an amended and restated Agency
Agreement (the "Agency Agreement", which expression includes the same as
it may be amended, supplemented, novated or restated from time to time)
dated 30th March, 2001 between, inter alios, the Issuer and The Chase
Manhattan Bank (the "Agent").
(C) The Notes will initially be represented by, and comprised in, Temporary
Global Notes (the "Temporary Global Notes") and thereafter may be
represented by, and comprised in, Permanent Global Notes (the "Permanent
Global Notes" and together with the Temporary Global Notes, the "Global
Notes"), such Global Notes representing a certain number of underlying
Notes (the "Underlying Notes").
(D) Each Global Note will, after issue, be deposited with a common depository
for one or more Clearing Systems (each such Clearing System or all such
Clearing Systems together, the "Relevant Clearing System"). Upon such
deposit of a Global Note the Underlying Notes represented by such Global
Note will be credited to a securities account or securities accounts with
the Relevant Clearing System. Any account holder with the Relevant
Clearing System which has Underlying Notes credited to its securities
account from time to time (each a "Relevant Account Holder") will,
subject to and in accordance with the terms and conditions and operating
procedures or management regulations of the Relevant Clearing System, be
entitled to transfer such Underlying Notes and (subject to and upon
payment being made by the relevant Issuer to the bearer in accordance
with the terms of the relevant Global Note) will be entitled to receive
payments from the Relevant Clearing System calculated by reference to the
Underlying Notes credited to its securities account.
(E) In certain circumstances specified in each Global Note, a Global Note
will become void. The time at which a Global Note becomes void is
hereinafter referred to as the "Relevant Time". In such circumstances
45
each Relevant Account Holder will, subject to and in accordance with the
terms of this Deed, acquire against the relevant Issuer all those rights
which such Relevant Account Holder would have had if, prior to the Global
Note becoming void, duly executed and authenticated Definitive Note(s)
(as defined in the Agency Agreement) and, if the Notes are repayable in
instalments, receipts in respect thereof (the "Receipts") and interest
coupons (the "Coupons") appertaining to the Definitive Note(s) (if
appropriate) had been issued in respect of its Underlying Note(s) and
such Definitive Notes(s), Receipts (if appropriate) and Coupons (if
appropriate) were held and beneficially owned by such Relevant Account
Holder.
(F) The obligations of each Issuer under this Deed have been guaranteed by
the Guarantor pursuant to the amended and restated Deed of Guarantee (the
"Guarantee") executed by the Guarantor on 30th March, 2001 and an
executed copy of the Guarantee has been deposited with and shall be held
by the Agent for the time being for the Notes. A copy of the Guarantee
shall be available for inspection at the office of the Agent for the time
being (being at the date hereof at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇ ▇▇▇).
(G) This Deed of Covenant amends and restates the amended and restated Deed
of Covenant entered into by Ciba Specialty Chemicals Corporation, Ciba
Specialty Chemicals PLC, Ciba Spezialitatenchemie Holding Deutschland
GmbH dated 16th June, 2000. This Deed of Covenant does not affect any
Notes issued pursuant to the Principal Program Agreement prior to the
date hereof.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. If any Global Note becomes void in accordance with the terms thereof the
relevant Issuer hereby undertakes and covenants with each Relevant
Account Holder (other than when any Relevant Clearing System is an
account holder of any other Relevant Clearing System) that each Relevant
Account Holder shall automatically acquire at the Relevant Time, without
the need for any further action on behalf of any person, against the
relevant Issuer all those rights which such Relevant Account Holder would
have had if at the Relevant Time it held and beneficially owned duly
executed and authenticated Definitive Note(s), Receipts (if appropriate)
and Coupons (if appropriate) in respect of each Underlying Note
represented by such Global Note which such Relevant Account Holder has
credited to its securities account with the Relevant Clearing System at
the Relevant Time. The relevant Issuer's obligation pursuant to this
clause shall be a separate and independent obligation by reference to
each Underlying Note which a Relevant Account Holder has credited to its
securities account with the Relevant Clearing System and the relevant
Issuer agrees that a Relevant Account Holder may assign its rights
hereunder in whole or in part.
2. The records of the Relevant Clearing System shall be conclusive evidence
of the identity of the Relevant Account Holders and the number of
Underlying Notes credited to the securities account of each Relevant
Account Holder. For the purposes hereof a statement issued by the
Relevant Clearing System stating:
(i) the name of the Relevant Account Holder to which such statement is
issued; and
(ii) the aggregate nominal amount of Underlying Notes credited to the
securities account of such Relevant Account Holder as at the opening
46
of business on the first day following the Relevant Time on which
the Relevant Clearing System is open for business,
shall be conclusive evidence of the records of the Relevant Clearing
System at the Relevant Time.
3. In the event of a dispute, the determination of the Relevant Time by the
Relevant Clearing System shall be final and conclusive for all purposes
in connection with the Relevant Account Holders with securities accounts
with the Relevant Clearing System.
4.(a) Where the Issuer is Ciba Specialty Chemicals Corporation:
The Issuer will, subject to the exceptions and limitations set forth
below, pay as additional interest on an Underlying Note such additional
amounts as are necessary in order that the net amounts receivable
pursuant to the terms of the Underlying Note by each Relevant Account
Holder who is a United States Alien (as such term is defined below),
after deduction for any present or future tax, assessment or governmental
charge of the United States (as such term is defined below), or a
political subdivision or authority thereof or therein, imposed by
withholding with respect to the payment, will not be less than the
amounts provided for in such Underlying Note to be then due and payable;
provided, however, that the foregoing obligation to pay additional
amounts shall not apply to:
(i) any tax, assessment or governmental charge that would not have been
so imposed but for the existence of any present or former connection
between such Relevant Account Holder (or between a fiduciary,
settlor, beneficiary, member or shareholder of, or holder of power
over, such holder, if such Relevant Account Holder is an estate,
trust, partnership or corporation) and the United States, including,
without limitation, such Relevant Account Holder (or fiduciary,
settlor, beneficiary, member, shareholder or holder of a power)
being considered as:
(A) being or having been present or engaged in a trade or business
in the United States or having or having had a permanent
establishment therein;
(B) having a current or former relationship with the United States,
including a relationship as a citizen or resident or being
treated as a resident thereof;
(C) being or having been a personal holding company, a controlled
foreign corporation, a passive foreign investment company, a
foreign personal holding company with respect to the United
States, a corporation that has accumulated earnings to avoid
United States Federal income tax or a private foundation or
other tax-exempt organisation; or
(D) an actual or a constructive "10-per cent shareholder" of the
Issuer as defined in Section 871(h)(3) of the United States
Internal Revenue Code of 1986, as amended (the "Code");
(ii) any Relevant Account Holder who is a fiduciary or partnership or
other than the sole beneficial owner of the Underlying Note, but
only to the extent that a beneficiary or settlor with respect to
such fiduciary or member of such partnership or a beneficial owner
of the Underlying Note would not have been entitled to the payment
47
of an additional amount had such beneficiary, settlor, member or
beneficial owner been the Relevant Account Holder of such Underlying
Note;
(iii) any tax, assessment or governmental charge that would not have been
imposed or withheld but for the failure of the Relevant Account
Holder, if required, to comply with certification, identification or
information reporting requirements under United States income tax
laws, without regard to any tax treaty, with respect to the payment,
concerning the nationality, residence, identity or connection with
the United States of the Relevant Account Holder or a beneficial
owner of such Underlying Note, if such compliance is required by
United States income tax laws, without regard to any tax treaty, as
a precondition to relief or exemption from such tax, assessment or
governmental charge;
(iv) any estate, inheritance, gift, sales, transfer, excise, wealth or
personal property tax or any similar tax, assessment or governmental
charge;
(v) any tax, assessment or governmental charge that is payable otherwise
than by withholding from the payment of the amounts receivable in
respect of such Underlying Note;
(vi) any tax, assessment or governmental charge required to be withheld
by any paying agent from such payment of amounts receivable in
respect of any Underlying Note, if such payment can be made without
such withholding by any other paying agent; or
(vii) any combination of items (i), (ii), (iii), (iv), (v) or (vi).
As used in this Clause, "United States" means the United States of
America, the Commonwealth of Puerto Rico and each possession of the
United States of America and place subject to its jurisdiction and
"United States Alien" means any corporation, partnership, individual or
fiduciary that, as to the United States, is for United States Federal
income tax purposes (A) a foreign corporation, (B) a foreign partnership
one or more of the members of which is, for United States Federal income
tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust, (C) a
non-resident alien individual or (D) a non-resident alien fiduciary of a
foreign estate or trust.
(b) Where the Issuer is Ciba Spezialitatenchemie Holding Deutschland GmbH:
All payments in respect of the Underlying Note by the Issuer will be made
without withholding or deduction for or on account of any present or
future taxes or duties of whatever nature imposed or levied by or on
behalf of Germany or any state (Bundesland), municipality or other
political subdivision or any authority thereof or therein having power to
tax, unless such withholding or deduction is required by law. In such
event, the Issuer will pay such additional amounts as shall be necessary
in order that the net amounts received by the Relevant Account Holders
after such withholding or deduction shall equal the amounts which would
otherwise have been receivable in respect of the Underlying Note in the
absence of such withholding or deduction; except that no such additional
amounts shall be payable with respect to any Underlying Note to or to the
order of a Relevant Account Holder who is liable for such taxes or duties
in respect of such Underlying Note by reason of his having some
connection with Germany other than the mere holding of such Underlying
48
Note or with respect to any Underlying Note presented for payment to a
paying agent which is required to deduct or withhold an amount for or on
account of such taxes or duties if such amount can be paid without any
deduction or withholding for or on account of any taxes or duties by any
other paying agent. Any advance income tax (Zinsabschlagsteuer) levied in
Germany since 1993 as well as the solidarity surcharge
(Solidaritatszuschlag) imposed thereon since 1995 do not constitute a
withholding or deduction within the meaning of this Clause 4(b).
(c) Where the Issuer is Ciba Specialty Chemicals PLC:
All payments by the Issuer in respect of the Underlying Notes shall be
made without withholding or deduction for or on account of any present or
future tax, duty or charge of whatever nature imposed or levied by or on
behalf of the United Kingdom, or any authority thereof or therein having
power to tax unless the withholding or deduction is required by law. In
that event, the Issuer shall pay such additional amounts as will result
(after such withholding or deduction) in the receipt by the Relevant
Account Holders of the sums which would have been receivable (in the
absence of such withholding or deduction) from the Issuer in respect of
their Underlying Notes; except that no such additional amounts shall be
payable with respect to any Underlying Note to or to the order of a
person liable to such tax, duty or charge in respect of such Underlying
Note by reason of his having some connection with the United Kingdom
other than the mere holding or ownership of such Underlying Note or with
respect to any Underlying Note presented for payment to a paying agent
which is required to deduct or withhold an amount for or on account of
such tax, duty or charge if such amount can be paid without any deduction
or withholding for or on account of any tax, duty or charge by any other
paying agent.
5. Each Issuer hereby warrants, represents and covenants with each Relevant
Account Holder that it has all corporate power, and has taken all
necessary corporate or other steps, to enable it to execute, deliver and
perform this Deed, and that this Deed constitutes a legal, valid and
binding obligation of the relevant Issuer enforceable in accordance with
its terms subject to the laws of bankruptcy and other laws affecting the
rights of creditors generally.
6. This Deed shall take effect as a Deed Poll for the benefit of the
Relevant Account Holders from time to time and for the time being. This
Deed shall be deposited with and held by a depository for Clearstream,
Luxembourg and Euroclear, or any successor to the business thereof and
for the time being (being at the date hereof The Chase Manhattan Bank at
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇) until all the
obligations of each Issuer hereunder have been discharged in full.
7. Each Issuer hereby acknowledges the right of every Relevant Account
Holder to the production of, and the right of every Relevant Account
Holder to obtain (upon payment of a reasonable charge) a copy of, this
Deed, and further acknowledges and covenants that the obligations binding
upon it contained herein are owed to, and shall be for the account of,
each and every Relevant Account Holder, and that each Relevant Account
Holder shall be entitled severally to enforce the said obligations
against the relevant Issuer.
8. No rights are conferred on any person under the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Deed, but this does
not affect any right or remedy of any person which exists or is available
apart from that Act.
49
9. This Deed is governed by, and shall be construed in accordance with, the
laws of England.
Each Issuer hereby irrevocably agrees, for the exclusive benefit of the
Relevant Account Holders, that the courts of England are to have
jurisdiction to settle any dispute which may arise out of, or in
connection with, this Deed and that accordingly any suit, action or
proceedings (together referred to as "Proceedings") arising out of, or in
connection with, this Deed may be brought in such courts. Each Issuer
irrevocably waives any objection which it may have now or hereafter to
the laying of the venue of any Proceedings in any such court and any
claim that any such Proceedings have been brought in an inconvenient
forum and further irrevocably agrees that a judgment in any Proceedings
brought in the English courts shall be conclusive and binding upon the
relevant Issuer and may be enforced in the courts of any other
jurisdiction (subject to the laws of the jurisdiction in which
enforcement is sought). Nothing contained in this Clause shall limit any
right to take Proceedings against any Issuer in any other court of
competent jurisdiction, nor shall the taking of Proceedings in one or
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not (subject to the laws of the
relevant jurisdictions). Ciba Specialty Chemicals Corporation and Ciba
Spezialitatenchemie Holding Deutschland GmbH each hereby appoints Ciba
Specialty Chemicals PLC at its registered office for the time being to
accept service of process on its behalf. If Ciba Specialty Chemicals PLC
shall cease to be registered under the laws of England and Wales, the
relevant Issuer shall appoint another person with an office in London to
accept such service. Nothing herein shall affect the right to serve
process in any other manner permitted by law.
10. This Deed may be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
instrument.
IN WITNESS whereof each Issuer has caused this Deed to be duly executed the
day and year first above mentioned.
50
EXECUTED as a Deed under )
Seal by CIBA SPECIALTY CHEMICALS )
CORPORATION )
and SIGNED and )
DELIVERED as a deed on its )
behalf by )
in the presence of: )
Witness's
Signature ....................................
Name ...................................
Address ....................................
..................................
EXECUTED as a Deed under )
Seal by CIBA SPECIALTY CHEMICALS )
PLC and SIGNED and DELIVERED as )
a deed on its behalf by )
in the presence of: )
Witness's
Signature ....................................
Name ...................................
Address ....................................
..................................
51
EXECUTED as a Deed under )
Seal by CIBA SPEZIALITATENCHEMIE )
HOLDING DEUTSCHLAND GMBH )
and SIGNED and DELIVERED as )
a deed on its behalf by )
)
in the presence of: )
Witness's
Signature ....................................
Name ...................................
Address ....................................
..................................
52
SIGNATORIES
The Issuers
CIBA SPECIALTY CHEMICALS CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: 001 914 785 2183
Attention: Treasurer
By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
CIBA SPECIALTY CHEMICALS PLC
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇
Telefax: 44 1 625 619 637
Attention: Treasurer
By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
Chemiestrasse
D-68623 Lampertheim
Germany
Telephone: ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telefax: 00 49 620 6151368
Attention: Treasurer
By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
53
The Guarantor
CIBA SPECIALTY CHEMICALS HOLDING INC.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telefax: 00 41 61 636 6828
Attention: Group Treasurer
By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
The Dealers
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Telex: 892131 CSFB G
Telefax 020 7888 3719
Attention: MTN Trading
DEUTSCHE BANK AG LONDON
Winchester House
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Telefax: 020 7541 2761
Telex: 94015555 DBLN G
Attention: MTN Desk
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Telex: 94012165 GSHH G
Telefax: 020 7774 5711
Attention: Euro Medium Term Note Desk
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Telex: 8954804 MGLTD G
Telefax: 020 7325 8225
Attention: Euro Medium Term Note Desk
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UBS AG, acting through its business group UBS Warburg
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Telefax: 44 20 7568 3349
Attention: MTNs and Private Placements
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