Exhibit 4.4
AGENCY AGREEMENT
in respect of a
EURO MEDIUM TERM NOTE PROGRAM
THIS AGREEMENT is made on 27th March, 2002 BETWEEN:
(1) CIBA SPECIALTY CHEMICALS CORPORATION of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("CIBA US");
(2) CIBA SPECIALTY CHEMICALS PLC of ▇▇▇▇▇▇ Road, Macclesfield, Cheshire
SK10 2NX, England ("CIBA UK");
(3) CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH of Chemiestrasse,
D-68623 Lampertheim, Germany ("CIBA Germany");
(4) CIBA SPECIALTY CHEMICALS EUROFINANCE LTD. of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ("▇▇▇▇ ▇▇▇▇▇▇▇");
(5) CIBA SPECIALTY CHEMICALS HOLDING INC. of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the "Guarantor");
(6) JPMORGAN CHASE BANK of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ (the "Agent", which expression shall include any successor
agent appointed in accordance with clause 21); and
(7) ▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A. of ▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(▇▇▇▇▇▇▇▇ with the Agent, the "Paying Agents", which expression shall
include any additional or successor paying agent appointed in
accordance with clause 21 and "Paying Agent" shall mean any of the
Paying Agents).
WHEREAS:
(A) CIBA US, CIBA UK, CIBA Germany, CIBA Bermuda (each an "Issuer" and
together, the "Issuers") and the Guarantor have entered into an
amended and restated program agreement dated 27th March, 2002 (the
"Program Agreement") with the Dealers named therein pursuant to which
the Issuer may issue Euro Medium Term Notes (the "Notes") in an
aggregate nominal amount outstanding at any time of up to
U.S.$2,000,000,000 (or its equivalent in other currencies). The
Program Agreement amends and restates the amended and restated
program agreement entered into by CIBA US, CIBA UK, CIBA Germany and
the Guarantor dated 30th March, 2001 with the Dealers named therein.
(B) CIBA US, CIBA UK, CIBA Germany, the Guarantor, the Agent and the
Paying Agents entered into an amended and restated Agency Agreement
(the "Principal Agency Agreement") dated 30th March, 2001 in respect
of U.S.$2,000,000,000 Euro Medium Term Note Program.
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(C) This Agreement amends and restates the Principal Agency Agreement.
Any Notes issued on or after the date hereof (other than any such
Notes issued so as to be consolidated and form a single Series with
any Notes issued prior to the date hereof) shall be issued pursuant to
this Agreement. This does not affect any Notes issued prior to the
date hereof.
(D) Each issue of Notes will be initially represented by a temporary
global Note exchangeable in whole or in part for definitive Notes or
for a permanent global Note which will be exchangeable as described
therein for definitive Notes.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
(1) Terms and expressions defined in the Program Agreement or the Notes
or used in the applicable Pricing Supplement shall have the same
meanings in this Agreement, except where the context requires
otherwise or unless otherwise stated.
(2) Without prejudice to the foregoing:
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme;
"Conditions" means, in relation to the Notes of any Series, the terms
and conditions endorsed on or incorporated by reference into or
attached to the Note or Notes constituting such Series, such terms
and conditions being in or substantially in the form set out in
Schedule 1 or in such other form, having regard to the terms of the
Notes of the relevant Series, as may be agreed between the relevant
Issuer, the Guarantor, the Agent and the relevant Dealer as modified
and supplemented by the Pricing Supplement applicable to the Notes of
the relevant Series;
"Coupon" means an interest coupon appertaining to a Definitive Note
(other than a Zero Coupon Note), such coupon being:
(i) if appertaining to a Fixed Rate Note, in the form or
substantially in the form set out in Part IV A of Schedule 2
or in such other form, having regard to the terms of issue
of the Notes of the relevant Series, as may be agreed
between the relevant Issuer, the Guarantor, the Agent and
the relevant Dealer; or
(ii) if appertaining to a Floating Rate Note or an Indexed
Interest Note, in the form or substantially in the form set
out in Part IV B of Schedule 2 or in such other form, having
regard to the terms of issue of the Notes of the relevant
Series, as may be agreed between the relevant Issuer, the
Guarantor, the Agent and the relevant Dealer; or
(iii) if appertaining to a Definitive Note which is neither a
Fixed Rate Note nor a Floating Rate Note nor an Indexed
Interest Note, in such form as may be agreed between the
relevant Issuer, the Guarantor, the Agent and the relevant
Dealer,
and includes, where applicable, the Talon(s) appertaining thereto and
any replacements for Coupons and Talons issued pursuant to Condition
10;
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"Couponholders" means the several persons who are for the time being
holders of the Coupons and shall, unless the context otherwise
requires, include the holders of the Talons;
"Definitive Note" means a definitive Note issued or, as the case may
require, to be issued by the relevant Issuer in accordance with the
provisions of the Program Agreement or any other agreement between
the relevant Issuer, the Guarantor and the relevant Dealer in
exchange for either a Temporary Global Note or a Permanent Global
Note (all as indicated in the applicable Pricing Supplement), such
definitive Note being in the form or substantially in the form set
out in Part III of Schedule 2 with such modifications (if any) as may
be agreed between the relevant Issuer, the Guarantor, the Agent and
the relevant Dealer and having the Conditions endorsed thereon or
attached thereto or, if permitted by the relevant authority or
authorities and agreed by the relevant Issuer, the Guarantor and the
relevant Dealer, incorporating the Conditions by reference and having
the applicable Pricing Supplement (or the relevant provisions
thereof) either endorsed thereon or attached thereto and (except in
the case of a Zero Coupon Note) having Coupons and, where
appropriate, Receipts and/or Talons attached thereto on issue;
"Distribution Compliance Period" has the meaning given to such term
in Regulation S under the Securities Act;
"Dual Currency Note" means a Note in respect of which payments of
principal and/or interest are made or to be made in such different
currencies, and at rates of exchange calculated upon such basis or
bases, as the relevant Issuer, the Guarantor and the relevant Dealer
may agree (as indicated in the applicable Pricing Supplement);
"EURIBOR" means the Euro-zone inter-bank offered rate;
"Euroclear" means Euroclear Bank S.A./N.V. as operator of the
Euroclear System, or any successor to the business thereof;
"Euro-zone" means the region composed of Member States of the
European Union that are participating in the third stage of European
economic and monetary union;
"Fixed Rate Note" means a Note on which interest is calculated at a
fixed rate payable in arrear on a fixed date or dates in each year
and on the redemption date or on such other dates as may be agreed
between the relevant Issuer, the Guarantor and the relevant Dealer
(as indicated in the applicable Pricing Supplement);
"Floating Rate Note" means a Note on which interest is calculated at
a floating rate payable in respect of such period or on such date(s)
as may be agreed between the relevant Issuer, the Guarantor and the
relevant Dealer (as indicated in the applicable Pricing Supplement);
"Global Note" means a Temporary Global Note and/or a Permanent Global
Note, as applicable;
"Guarantee" means the guarantee dated the date of this Agreement,
substantially in the form set out in Schedule 3, executed as a deed
poll by the Guarantor in respect of any Note and in respect of the
obligations of the Issuers under the Deed of Covenant;
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"Indexed Interest Note" means a Note in respect of which the amount
payable in respect of interest is calculated by reference to an index
and/or a formula as the relevant Issuer, the Guarantor and the
relevant Dealer may agree (as indicated in the applicable Pricing
Supplement);
"Indexed Note" means an Indexed Interest Note and/or an Indexed
Redemption Amount Note, as applicable;
"Indexed Redemption Amount Note" means a Note in respect of which the
amount payable in respect of principal is calculated by reference to
an index and/or a formula as the relevant Issuer, the Guarantor and
the relevant Dealer may agree (as indicated in the applicable Pricing
Supplement);
"Interest Commencement Date" means, in the case of interest-bearing
Notes, the date specified in the applicable Pricing Supplement from
(and including) which such Notes bear interest, which may or may not
be the Issue Date (but if no date is specified shall be the Issue
Date);
"ISDA Definitions" means the 2000 ISDA Definitions, each as amended
and updated as at the Issue Date of the first Tranche of Notes of the
relevant Series and published by the International Swaps and
Derivatives Association, Inc.;
"Issue Date" means the date of issue and purchase of a Note, in each
case pursuant to and in accordance with the Program Agreement or any
other agreement between the relevant Issuer, the Guarantor and the
relevant Dealer, being in the case of any Permanent Global Note or
Definitive Note, the same date as the date of issue of the Temporary
Global Note which initially represented such Note;
"Issue Price" means the price, generally expressed as a percentage of
the nominal amount of the Notes, at which the Notes will be issued;
"LIBOR" means the London inter-bank offered rate;
"Maturity Date" means, in relation to a Note, the date on which it is
expressed to be redeemable;
"Note" means a note denominated in Australian dollars, Canadian
dollars, Czech koruna, Danish kroner, euro, Hong Kong dollars,
Japanese Yen, New Zealand dollars, Norwegian kroner, South African
Rand, Sterling, Swedish kronor, Swiss francs, U.S. dollars or such
other currency or currencies as may be agreed between the relevant
Issuer, the Guarantor and the relevant Dealer issued or to be issued
by the relevant Issuer pursuant to the Program Agreement or any other
agreement between the relevant Issuer, the Guarantor and the relevant
Dealer and which shall initially be represented by, and comprised in,
a Temporary Global Note which may (in accordance with the terms of
such Temporary Global Note) be exchanged for either Definitive Notes
or a Permanent Global Note which Permanent Global Note may (in
accordance with the terms of such Permanent Global Note) in turn be
exchanged for Definitive Notes (all as indicated in the applicable
Pricing Supplement)
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and includes any replacements for a Note issued pursuant to
Condition 10 and, where applicable, the Receipts relating thereto;
"Noteholders" means the several persons who are for the time being
holders of the Notes save that, in respect of the Notes of any
Series, for so long as such Notes or any part thereof are
represented by a Global Note held on behalf of Euroclear and/or of
Clearstream, Luxembourg, each person (other than Euroclear or
Clearstream, Luxembourg) who is for the time being shown in the
records of Euroclear or of Clearstream, Luxembourg as the holder of
a particular nominal amount of the Notes of such Series (in which
regard any certificate or other document issued by Euroclear or
Clearstream, Luxembourg as to the nominal amount of such Notes
standing to the account of any person shall be conclusive and
binding for all purposes save in the case of manifest error) shall
be treated by the Issuer, the Guarantor, the Agent and any other
Paying Agent as the holder of such nominal amount of such Notes for
all purposes other than with respect to the payment of principal or
interest on such Notes, for which purpose the bearer of the relevant
Global Note shall be treated by the Issuer, the Guarantor, the Agent
and any other Paying Agent as the holder of such nominal amount of
such Notes in accordance with and subject to the terms of the
relevant Global Note and this agreement and the expressions
"Noteholder", "holder of Notes" and related expressions shall be
construed accordingly;
"outstanding" means, in relation to the Notes, all the Notes issued
other than (a) those which have been redeemed in full in accordance
with the Conditions, (b) those in respect of which the date for
redemption in accordance with the Conditions has occurred and the
redemption moneys wherefor (including all interest (if any) accrued
thereon to the date for such redemption and any interest (if any)
payable under the Conditions after such date) have been duly paid to
the Agent as provided herein (and, where appropriate, notice has been
given to the Noteholders of the relevant Series in accordance with
Condition 14) and remain available for payment against presentation
of Notes, (c) those which have become void under Condition 8, (d)
those which have been purchased and cancelled as provided in
Condition 6, (e) those mutilated or defaced Notes which have been
surrendered in exchange for replacement Notes pursuant to Condition
10, (f) (for the purpose only of determining the nominal amount of
the Notes outstanding and without prejudice to their status for any
other purpose) those Notes alleged to have been lost, stolen or
destroyed and in respect of which replacement Notes have been issued
pursuant to Condition 10, (g) Temporary Global Notes to the extent
that they shall have been duly exchanged for Permanent Global Notes
and/or Definitive Notes and Permanent Global Notes to the extent that
they shall have been duly exchanged for Definitive Notes, in each
case pursuant to their respective provisions and (h) Temporary Global
Notes and Permanent Global Notes which have become void in accordance
with their terms (provided that at the Relevant Time (as defined in
the Deed of Covenant) the Underlying Notes (as defined in the Deed of
Covenant) will be deemed to be still outstanding) and,
PROVIDED THAT for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the
Noteholders or any of them; and
(ii) the determination of how many and which Notes are for the
time being outstanding for the purposes of paragraphs 2, 5
and 6 of Schedule 4 hereto,
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those Notes (if any) which are for the time being held by any person
(including but not limited to any Issuer, the Guarantor or any of
their respective Subsidiaries) for the benefit of any Issuer, the
Guarantor or any of their respective Subsidiaries shall (unless and
until ceasing to be so held) be deemed not to be outstanding;
"Permanent Global Note" means a global note in the form or
substantially in the form set out in Part II of Schedule 2 together
with the copy of the applicable Pricing Supplement attached thereto
with such modifications (if any) as may be agreed between the
relevant Issuer, the Guarantor, the Agent and the relevant Dealer,
comprising some or all of the Notes of the same Series, issued by the
relevant Issuer pursuant to the Program Agreement or any other
agreement between the relevant Issuer, the Guarantor and the relevant
Dealer in exchange for the whole or part of any Temporary Global Note
issued in respect of such Notes;
"Procedures Memorandum" means the operating and administrative
procedures memorandum set out in Schedule 6 hereto;
"Put Notice" means a notice in the form set out in Schedule 5;
"Receipt" means a receipt attached on issue to a Definitive Note
redeemable in instalments for the payment of an instalment of
principal, such receipt being in the form or substantially in the
form set out in Part V of Schedule 2 or in such other form as may be
agreed between the relevant Issuer, the Guarantor, the Agent and the
relevant Dealer and includes any replacements for Receipts issued
pursuant to Condition 10;
"Receiptholders" means the several persons who are for the time being
holders of the Receipts;
"Reference Banks" means, in the case of sub-clause 8(2)(a)(i) below,
those banks whose offered rates were used to determine such quotation
when such quotation last appeared on the Relevant Screen Page and, in
the case of sub-clause 8(2)(a)(ii) below, those banks whose offered
quotations last appeared on the Relevant Screen Page when no fewer
than three such offered quotations appeared;
"Replacement Agent" means the Paying Agent in Luxembourg;
"Securities Act" means the United States Securities Act of 1933, as
amended;
"Series" means a Tranche of the Notes together with any further
Tranche or Tranches of the Notes which are (i) expressed to be
consolidated and form a single series and (ii) identical in all
respects (including as to listing) except for their respective Issue
Dates, Interest Commencement Dates and/or Issue Prices and the
expressions "Notes of the relevant Series" and "holders of Notes of
the relevant Series" and related expressions shall be construed
accordingly;
"Talons" means the talons (if any) appertaining to, and exchangeable
in accordance with the provisions therein contained for further
Coupons appertaining to, a Definitive Note (other than a Zero Coupon
Note), such talons being in the form or substantially in the form set
out in Part VI of Schedule 2 or in such other form as may be agreed
between the relevant Issuer,
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the Guarantor, the Agent and the relevant Dealer and includes any
replacements for Talons issued pursuant to Condition 10;
"Temporary Global Note" means a global note in the form or
substantially in the form set out in Part I of Schedule 2 together
with the copy of the applicable Pricing Supplement attached thereto
with such modifications (if any) as may be agreed between the
relevant Issuer, the Guarantor, the Agent and the relevant Dealer,
comprising some or all of the Notes of the same Series, issued by the
relevant Issuer pursuant to the Program Agreement or any other
agreement between the Issuer and the relevant Dealer;
"Tranche" means all Notes which are identical in all respects
(including as to listing); and
"Zero Coupon Note" means a Note on which no interest is payable.
(3) Words denoting the singular number only shall include the plural
number also and vice versa;
words denoting one gender only shall include the other gender; and
words denoting persons only shall include firms and corporations and
vice versa.
(4) All references in this Agreement to costs or charges or expenses
shall include any value added tax or similar tax charged or
chargeable in respect thereof.
(5) For the purposes of this Agreement, the Notes of each Series shall
form a separate series of Notes and the provisions of this Agreement
shall apply mutatis mutandis separately and independently to the
Notes of each Series and in this Agreement the expressions "Notes",
"Noteholders", "Receipts", "Receiptholders", "Coupons",
"Couponholders" and "Talons" shall be construed accordingly.
(6) All references in this Agreement to principal and/or interest or both
in respect of the Notes or to any moneys payable by any Issuer and/or
the Guarantor under this Agreement shall have the meaning set out in
Condition 5(d).
(7) All references in this Agreement to the "relevant currency" shall be
construed as references to the currency in which the relevant Notes
and/or Coupons are denominated (or payable in the case of Dual
Currency Notes).
(8) In this Agreement, clause headings are inserted for convenience and
ease of reference only and shall not affect the interpretation of
this Agreement. All references in this Agreement to the provisions of
any statute shall be deemed to be references to that statute as from
time to time modified, extended, amended or re-enacted or to any
statutory instrument, order or regulation made thereunder or under
such re-enactment.
(9) All references in this Agreement to an agreement, instrument or other
document (including, without limitation, this Agreement, the Program
Agreement, the Deed of Covenant, the Guarantee, the Procedures
Memorandum, the Notes and any Conditions appertaining thereto) shall
be construed as a reference to that agreement, instrument or document
as the same may be amended, modified, varied or supplemented from
time to time.
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(10) Any references herein to Euroclear and/or Clearstream, Luxembourg
shall, whenever the context so permits, be deemed to include a
reference to any additional or alternative clearing system approved
by the relevant Issuer, the Guarantor and the Agent.
2. APPOINTMENT OF AGENT AND PAYING AGENTS
(1) The Agent is hereby appointed, and the Agent hereby agrees to act, as
agent of the Issuers and the Guarantor, upon the terms and subject to
the conditions set out below, for the purposes of, inter alia:
(a) completing, authenticating and delivering Global Notes and
(if required) authenticating and delivering Definitive
Notes;
(b) exchanging Temporary Global Notes for Permanent Global Notes
or Definitive Notes, as the case may be, in accordance with
the terms of such Temporary Global Notes;
(c) exchanging Permanent Global Notes for Definitive Notes in
accordance with the terms of such Permanent Global Notes;
(d) paying sums due on Global Notes and Definitive Notes,
Receipts and Coupons;
(e) exchanging Talons for Coupons in accordance with the
Conditions;
(f) determining the end of the Distribution Compliance Period
applicable to each Tranche;
(g) unless otherwise specified in the applicable Pricing
Supplement, determining the interest and/or other amounts
payable in respect of the Notes in accordance with the
Conditions;
(h) arranging on behalf of any Issuer and/or the Guarantor for
notices to be communicated to the Noteholders;
(i) preparing and sending monthly reports to the Bank of England
and ensuring that, as directed by the relevant Issuer, all
necessary action is taken to comply with any reporting
requirements of any competent authority in respect of any
relevant currency as may be in force from time to time with
respect to the Notes to be issued under the Program;
(j) subject to the Procedures Memorandum, submitting to the
relevant authority or authorities such number of copies of
each Pricing Supplement which relates to Notes which are to
be listed as the relevant authority or authorities may
reasonably require;
(k) acting as Calculation Agent in respect of Notes where named
as such in the relevant Pricing Supplement; and
(l) performing all other obligations and duties imposed upon it
by the Conditions, this Agreement and the Procedures
Memorandum.
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(2) Each Paying Agent is hereby appointed as paying agent of the Issuers
and the Guarantor, upon the terms and subject to the conditions set
out below, for the purposes of paying sums due on Notes, Receipts and
Coupons and of performing all other obligations and duties imposed
upon it by the Conditions and this Agreement.
(3) Each of the Issuer and the Guarantor undertakes that, if the
conclusions of the ECOFIN Council meeting of 26th-27th November, 2000
are implemented, it will ensure that it maintains a paying agent in
an EU member state that will not be obliged to withhold or deduct tax
pursuant to the Directive.
3. ISSUE OF TEMPORARY GLOBAL NOTES
(1) Subject to sub-clause (2) below, following receipt of a faxed copy of
the Pricing Supplement signed by any Issuer and the Guarantor, the
relevant Issuer and the Guarantor hereby authorise the Agent and the
Agent hereby agrees to take the steps required of the Agent in the
Procedures Memorandum. For this purpose the Agent will, inter alia,
on behalf of the relevant Issuer:
(a) prepare a Temporary Global Note by attaching a copy of the
applicable Pricing Supplement to a copy of the applicable
master Temporary Global Note;
(b) authenticate such Temporary Global Note;
(c) deliver such Temporary Global Note to the specified common
depositary for Euroclear and/or Clearstream, Luxembourg
against receipt from the common depositary of confirmation
that such common depositary is holding the Temporary Global
Note in safe custody for the account of Euroclear and/or
Clearstream, Luxembourg and to instruct Euroclear or
Clearstream, Luxembourg or both of them (as the case may be)
unless otherwise agreed in writing between the Agent and the
relevant Issuer (i) in the case of an issue of Notes not
subscribed pursuant to a Subscription Agreement, to credit
the Notes represented by such Temporary Global Note to the
Agent's distribution account, and (ii) in the case of Notes
subscribed pursuant to a Subscription Agreement, to hold the
Notes represented by such Temporary Global Note to the
Issuer's order; and
(d) ensure that the Notes of each Tranche are assigned a common
code and ISIN by Euroclear and Clearstream, Luxembourg which
are different from the common code and ISIN assigned to
Notes of any other Tranche of the same Series until not
earlier than 40 days after the completion of the
distribution of the Notes of such Tranche as notified by the
Agent to the relevant Dealer.
(2) The Agent shall only be required to perform its obligations under
sub-clause (1) above if it holds:
(a) a master Temporary Global Note duly executed by a person or
persons authorised to execute the same on behalf of the
relevant Issuer, which may be used by the Agent for the
purpose of preparing a Temporary Global Note in accordance
with sub-clause (1)(a); and
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(b) a master Permanent Global Note duly executed by a person or
persons authorised to execute the same on behalf of the
relevant Issuer, which may be used by the Agent for the
purpose of preparing a Permanent Global Note in accordance
with clause 4 below.
4. DETERMINATION OF EXCHANGE DATE, ISSUE OF PERMANENT GLOBAL NOTES AND
DEFINITIVE NOTES AND DETERMINATION OF END OF DISTRIBUTION COMPLIANCE
PERIOD
(1) (a) The Agent shall determine the Exchange Date for each
Temporary Global Note in accordance with the terms thereof.
Forthwith upon determining the Exchange Date in respect of
any Tranche, the Agent shall notify such determination to
the relevant Issuer, the Guarantor, the other Paying Agents,
the relevant Dealer, Euroclear and Clearstream, Luxembourg.
(b) The Agent shall deliver, upon notice from Euroclear or
Clearstream, Luxembourg, a Permanent Global Note or
Definitive Notes, as the case may be, in accordance with the
terms of the Temporary Global Note. Where a Temporary Global
Note is to be exchanged for a Permanent Global Note, the
Agent is hereby authorised on behalf of the relevant Issuer:
(i) in the case of the first Tranche of any Series of
Notes, to prepare and complete a Permanent Global
Note in accordance with the terms of the Temporary
Global Note applicable to such Tranche by attaching
a copy of the applicable Pricing Supplement to a copy
of the applicable master Permanent Global Note;
(ii) in the case of the first Tranche of any Series of
Notes, to authenticate such Permanent Global Note;
(iii) in the case of the first Tranche of any Series of
Notes, to deliver such Permanent Global Note to the
common depositary which is holding the Temporary
Global Note applicable to such Tranche for the time
being on behalf of Euroclear and/or Clearstream,
Luxembourg either in exchange for such Temporary
Global Note or, in the case of a partial exchange,
on entering details of such partial exchange of the
Temporary Global Note in the relevant spaces in
Schedule Two of both the Temporary Global Note and
the Permanent Global Note; and
(iv) in any other case, by attaching a copy of the
applicable Pricing Supplement to the Permanent
Global Note applicable to the relevant Series and
entering details of any exchange in whole or part
as aforesaid.
(2) (a) In the case of a Tranche in respect of which there is only
one Dealer, the Agent will determine the end of the
Distribution Compliance Period in respect of such Tranche as
being the fortieth day (or such later day as may be
specified in the applicable Pricing Supplement) following
the date certified by the relevant Dealer to the Agent as
being the date as of which distribution of the Notes of that
Tranche was completed.
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(b) In the case of a Tranche in respect of which there is more
than one Dealer but is not issued on a syndicated basis, the
Agent will determine the end of the Distribution Compliance
Period in respect of such Tranche as being the fortieth day
(or such later day as may be specified in the applicable
Pricing Supplement) following the latest of the dates
certified by all the relevant Dealers to the Agent as being
the respective dates as of which distribution of the Notes
of that Tranche purchased by each such Dealer was completed.
(c) In the case of a Tranche issued on a syndicated basis, the
Agent will determine the end of the Distribution Compliance
Period in respect of such Tranche as being the fortieth day
(or such later day as may be specified in the applicable
Pricing Supplement) following the date certified by the Lead
Manager to the Agent as being the date as of which
distribution of the Notes of that Tranche was completed.
(d) Forthwith upon determining the end of the Distribution
Compliance Period in respect of any Tranche, the Agent shall
notify such determination to the relevant Issuer, the
Guarantor, Euroclear, Clearstream, Luxembourg, the relevant
Dealer(s) (in the case of a non-syndicated issue) and the
Lead Manager (in the case of a syndicated issue).
5. ISSUE OF DEFINITIVE NOTES
(1) Upon notice from Euroclear or Clearstream, Luxembourg pursuant to the
terms of a Temporary Global Note or a Permanent Global Note, as the
case may be, the Agent shall deliver the relevant Definitive Note(s)
in accordance with the terms of the relevant Global Note. For this
purpose the Agent is hereby authorised on behalf of the relevant
Issuer:
(a) to authenticate such Definitive Note(s) in accordance with
the provisions of this Agreement; and
(b) to deliver such Definitive Note(s) to or to the order of
Euroclear and/or Clearstream, Luxembourg either in exchange
for such Global Note or, in the case of a partial exchange
of a Temporary Global Note, on entering details of any
partial exchange of the Temporary Global Note in the
relevant space in Schedule Two of such Temporary Global
Note.
The Agent shall notify the relevant Issuer forthwith upon receipt of
a request for issue of Definitive Note(s) in accordance with the
provisions of a Temporary Global Note or Permanent Global Note, as
the case may be, (and the aggregate nominal amount of such Temporary
Global Note or Permanent Global Note, as the case may be, to be
exchanged in connection therewith).
(2) Each Issuer undertakes to deliver to the Agent sufficient numbers of
executed Definitive Notes with, if applicable, Receipts, Coupons and
Talons attached to enable the Agent to comply with its obligations
under this clause.
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6. TERMS OF ISSUE
(1) The Agent shall cause all Temporary Global Notes, Permanent Global
Notes and Definitive Notes delivered to and held by it under this
Agreement to be maintained in safe custody and shall ensure that such
Notes are issued only in accordance with the provisions of this
Agreement and the relevant Global Note and Conditions.
(2) Subject to the procedures set out in the Procedures Memorandum, for
the purposes of clause 3(1) the Agent is entitled to treat a
telephone or facsimile communication from a person purporting to be
(and who the Agent believes in good faith to be) the authorised
representative of any Issuer and/or the Guarantor named in the lists
referred to in, or notified pursuant to, clause 19(7) as sufficient
instructions and authority of such Issuer and/or the Guarantor for
the Agent to act in accordance with clause 3(1).
(3) In the event that a person who has signed on behalf of any Issuer any
Note not yet issued but held by the Agent in accordance with clause
3(1) ceases to be authorised as described in clause 19(7), the Agent
shall (unless the relevant Issuer gives notice to the Agent that
Notes signed by that person do not constitute valid and binding
obligations of the relevant Issuer or otherwise until replacements
have been provided to the Agent) continue to have authority to issue
any such Notes, and the relevant Issuer hereby warrants to the Agent
that such Notes shall, unless notified as aforesaid, be valid and
binding obligations of such Issuer. Promptly upon such person ceasing
to be authorised, the relevant Issuer shall provide the Agent with
replacement Notes and upon receipt of such replacement Notes the
Agent shall cancel and destroy the Notes held by it which are signed
by such person and shall provide to the relevant Issuer a
confirmation of destruction in respect thereof specifying the Notes
so cancelled and destroyed.
(4) If the Agent pays an amount (the "Advance") to the Issuer on the
basis that a payment (the "Payment") has been, or will be, received
from a Dealer and if the Payment is not received by the Agent on the
date the Agent pays the relevant Issuer, the relevant Issuer
(failing which the Guarantor) shall repay to the Agent the Advance
and shall pay interest on the Advance (or the unreimbursed portion
thereof) from (and including) the date such Advance is made to (but
excluding) the earlier of repayment of the Advance and receipt by
the Agent of the Payment (at a rate quoted at that time by the Agent
as its cost of funding the Advance provided that evidence of the
basis of such rate is given to the relevant Issuer and the
Guarantor).
(5) Except in the case of issues where the Agent does not act as
receiving bank for the relevant Issuer in respect of the purchase
price of the Notes being issued, if on the relevant Issue Date a
Dealer does not pay the full purchase price due from it in respect of
any Note (the "Defaulted Note") and, as a result, the Defaulted Note
remains in the Agent's distribution account with Euroclear and/or
Clearstream, Luxembourg after such Issue Date, the Agent will
continue to hold the Defaulted Note to the order of the relevant
Issuer. The Agent shall notify the relevant Issuer forthwith of the
failure of the Dealer to pay the full purchase price due from it in
respect of any Defaulted Note and, subsequently, shall notify the
relevant Issuer forthwith upon receipt from the Dealer of the full
purchase price in respect of such Defaulted Note.
13
7. PAYMENTS
(1) The Issuer (failing which the Guarantor) will, before 10.00 a.m.
(local time in the relevant financial centre of the payment), on each
date on which any payment in respect of any Note becomes due,
transfer to an account specified by the Agent such amount in the
relevant currency as shall be sufficient for the purposes of such
payment in funds settled through such payment system as the Agent and
the relevant Issuer or, as the case may be, the Guarantor may agree.
(2) The Issuer (failing which the Guarantor) will ensure that no later
than 10.00 a.m. (London time) on the second Business Day (as defined
below) immediately preceding the date on which any payment is to be
made to the Agent pursuant to sub-clause (1), the Agent shall receive
from the paying bank of the Issuer or, as the case may be, the
Guarantor a payment confirmation in the form of a SWIFT message.
For the purposes of this clause "Business Day" means a day which is
both:
(a) a day on which commercial banks and foreign exchange markets
settle payments in London and any other place specified in
the applicable Pricing Supplement as an Additional Business
Centre; and
(b) either (i) in relation to a payment to be made in a
Specified Currency other than euro, a day on which
commercial banks and foreign exchange markets settle
payments in the principal financial centre of the country of
the relevant Specified Currency (if other than London and
any Additional Business Centre) and which, if the Specified
Currency is New Zealand Dollars, shall be Auckland or (ii)
in relation to a payment to be made in euro, a day on which
the TARGET System is open, where "TARGET System" means the
Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System. Unless otherwise provided in the
applicable Pricing Supplement, the principal financial
centre for any currency shall be as provided in the ISDA
Definitions.
(3) The Agent shall ensure that payments of both principal and interest
in respect of a Temporary Global Note will be made only to the extent
that certification of non-U.S. beneficial ownership as required by
U.S. securities laws and U.S. Treasury regulations (in the form set
out in the Temporary Global Note) has been received from Euroclear
and/or Clearstream, Luxembourg in accordance with the terms thereof.
(4) The Agent or the relevant Paying Agent shall pay or cause to be paid
all amounts due in respect of the Notes on behalf of each Issuer and
the Guarantor in the manner provided in the Conditions. If any
payment provided for in sub-clause (1) is made late but otherwise in
accordance with the provisions of this Agreement, the Agent and each
Paying Agent shall nevertheless make payments in respect of the Notes
as aforesaid following receipt by it of such payment.
(5) If for any reason the Agent considers in its sole discretion that the
amounts to be received by the Agent pursuant to sub-clause (1) will
be, or the amounts actually received by it pursuant thereto are,
insufficient to satisfy all claims in respect of all payments then
falling due in
14
respect of the Notes, neither the Agent nor any Paying Agent shall be
obliged to pay any such claims until the Agent has received the full
amount of all such payments.
(6) Without prejudice to sub-clauses (4) and (5), if the Agent pays any
amounts to the holders of Notes, Receipts or Coupons or to any Paying
Agent at a time when it has not received payment in full in respect
of the relevant Notes in accordance with sub-clause (1) (the excess
of the amounts so paid over the amounts so received being the
"Shortfall"), the relevant Issuer (failing which the Guarantor) will,
in addition to paying amounts due under sub-clause (1), pay to the
Agent on demand interest (at a rate which represents the Agent's cost
of funding the Shortfall as evidenced to the relevant Issuer and the
Guarantor by the provision of details of the calculation of the cost
of funding) on the Shortfall (or the unreimbursed portion thereof)
until the receipt in full by the Agent of the Shortfall.
(7) The Agent shall on demand promptly reimburse each Paying Agent for
payments in respect of Notes properly made by such Paying Agent in
accordance with this Agreement and the Conditions unless the Agent
has notified the Paying Agent, prior to the opening of business in
the location of the office of the Paying Agent through which payment
in respect of the Notes can be made on the due date of a payment in
respect of the Notes, that the Agent does not expect to receive
sufficient funds to make payment of all amounts falling due in
respect of such Notes.
(8) Whilst any Notes are represented by Global Notes, all payments due in
respect of such Notes shall be made to, or to the order of, the
holder of the Global Notes, subject to and in accordance with the
provisions of the Global Notes. On the occasion of any such payment
the Paying Agent to which the Global Note was presented for the
purpose of making such payment shall cause the appropriate Schedule
to the relevant Global Note to be annotated so as to evidence the
amounts and dates of such payments of principal and/or interest as
applicable.
(9) If the amount of principal and/or interest then due for payment is
not paid in full (otherwise than by reason of a deduction required by
law to be made therefrom), the Paying Agent to which a Note is
presented for the purpose of making such payment shall make a record
of such Shortfall on the Note and such record shall, in the absence
of manifest error, be prima facie evidence that the payment in
question has not to that extent been made.
(10) The obligations of the Guarantor as set forth in this clause 7 shall
be based on the Guarantee only and not be deemed to be primary
obligations of the Guarantor.
8. DETERMINATIONS AND NOTIFICATIONS IN RESPECT OF NOTES AND INTEREST
DETERMINATION
(1) DETERMINATIONS AND NOTIFICATIONS
(a) The Agent shall make all such determinations and
calculations (howsoever described) as it is required to do
under the Conditions, all subject to and in accordance with
the Conditions.
(b) The Agent shall not be responsible to any Issuer, the
Guarantor or to any third party (except in the event of
negligence, default or bad faith of the Agent, as the case
may be)
15
as a result of the Agent having acted on any quotation given
by any Reference Bank which subsequently may be found to be
incorrect.
(c) The Agent shall promptly notify (and confirm in writing to)
the relevant Issuer, the Guarantor, the other Paying Agents
and (in respect of a Series of Notes listed on a Stock
Exchange) the relevant Stock Exchange and Listing Agent of,
inter alia, each Rate of Interest, Interest Amount and
Interest Payment Date and all other amounts, rates and dates
which it is obliged to determine or calculate under the
Conditions as soon as practicable after the determination
thereof and of any subsequent amendment thereto pursuant to
the Conditions.
(d) The Agent shall use its best endeavours to cause each Rate
of Interest, Interest Amount and Interest Payment Date and
all other amounts, rates and dates which it is obliged to
determine or calculate under the Conditions to be published
as required in accordance with the Conditions as soon as
possible after their determination or calculation.
(e) If the Agent does not at any material time for any reason
determine and/or calculate and/or publish the Rate of
Interest, Interest Amount and/or Interest Payment Date in
respect of any Interest Period or any other amount, rate or
date as provided in this clause, it shall forthwith notify
the relevant Issuer, the Guarantor and the other Paying
Agents of such fact.
(f) Determinations with regard to Notes (including, without
limitation, Indexed Notes and Dual Currency Notes) shall be
made by the Calculation Agent specified in the applicable
Pricing Supplement in the manner specified in the applicable
Pricing Supplement. Unless otherwise agreed between the
relevant Issuer, the Guarantor and the relevant Dealer or
unless the Agent is the Calculation Agent (in which case the
provisions of this Agreement shall apply), such
determinations shall be made on the basis of a Calculation
Agency Agreement substantially in the form of Appendix A to
this Agreement.
(2) INTEREST DETERMINATION, SCREEN RATE DETERMINATION INCLUDING FALLBACK
PROVISIONS
(a) Where Screen Rate Determination is specified in the
applicable Pricing Supplement as the manner in which the
Rate of Interest is to be determined, the Rate of Interest
for each Interest Period will, subject as provided below, be
either:
(i) the offered quotation; or
(ii) the arithmetic mean (rounded if necessary to the
fifth decimal place, with 0.000005 being rounded
upwards) of the offered quotations,
(expressed as a percentage rate per annum), for the
Reference Rate for deposits in the Specified Currency for
that Interest Period which appears or appear, as the case
may be, on the Relevant Screen Page as at 11.00 a.m. (London
time, in the case of LIBOR, or Brussels time, in the case of
EURIBOR) on the Interest Determination Date in question plus
or minus (as indicated in the applicable Pricing Supplement)
the Margin (if any), all as determined by the Agent. If five
or more such offered
16
quotations are available on the Relevant Screen Page, the
highest (or, if there is more than one such highest
quotation, one only of such quotations) and the lowest (or,
if there is more than one such lowest quotation, one only of
such quotations) shall be disregarded by the Agent for the
purpose of determining the arithmetic mean (rounded as
provided above) of such offered quotations.
(b) If the Relevant Screen Page is not available or, if in the
case of sub-clause 8(2)(a)(i) above, no such offered
quotation appears or, in the case of sub-clause 8(2)(a)(ii)
above, fewer than three such offered quotations appear, in
each case as at the time specified in the preceding
paragraph the Agent shall request the principal London
office (in the case of LIBOR) or Euro-zone office (in the
case of EURIBOR) of each of the Reference Banks to provide
the Agent with its offered quotation (expressed as a
percentage rate per annum) for the Reference Rate at
approximately 11.00 a.m. (London time, in the case of LIBOR,
or Brussels time, in the case of EURIBOR) on the Interest
Determination Date in question. If two or more of the
Reference Banks provide the Agent with such offered
quotations, the Rate of Interest for such Interest Period
shall be the arithmetic mean (rounded if necessary to the
fifth decimal place with 0.000005 being rounded upwards) of
such offered quotations plus or minus (as appropriate) the
Margin (if any), all as determined by the Agent.
(c) If on any Interest Determination Date one only or none of
the Reference Banks provides the Agent with such offered
quotations as provided in the preceding paragraph, the Rate
of Interest for the relevant Interest Period shall be the
rate per annum which the Agent determines as being the
arithmetic mean (rounded if necessary to the fifth decimal
place, with 0.000005 being rounded upwards) of the rates, as
communicated to (and at the request of) the Agent by the
Reference Banks or any two or more of them, at which such
banks were offered, at approximately 11.00 a.m. (London
time, in the case of LIBOR, or Brussels time, in the case of
EURIBOR) on the relevant Interest Determination Date,
deposits in the Specified Currency for a period equal to
that which would have been used for the Reference Rate by
leading banks in the London inter-bank market (in the case
of LIBOR) or the Euro-zone inter-bank market (in the case of
EURIBOR) plus or minus (as appropriate) the Margin (if any)
or, if fewer than two of the Reference Banks provide the
Agent with such offered rates, the offered rate for deposits
in the Specified Currency for a period equal to that which
would have been used for the Reference Rate, or the
arithmetic mean (rounded as provided above) of the offered
rates for deposits in the Specified Currency for a period
equal to that which would have been used for the Reference
Rate, at which, at approximately 11.00 a.m. (London time, in
the case of LIBOR, or Brussels time, in the case of EURIBOR)
on the relevant Interest Determination Date, any one or more
banks (which bank or banks is or are in the opinion of the
relevant Issuer suitable for such purpose) informs the Agent
it is quoting to leading banks in the London inter-bank
market (in the case of LIBOR) or the Euro-zone inter-bank
market (in the case of EURIBOR) plus or minus (as
appropriate) the Margin (if any), provided that, if the Rate
of Interest cannot be determined in accordance with the
foregoing provisions of this paragraph, the Rate of Interest
shall be determined as at the last preceding Interest
Determination Date (though substituting, where a different
Margin is to be applied to the relevant Interest Period from
that which applied to the last preceding Interest Period,
the Margin
17
relating to the relevant Interest Period, in place of the
Margin relating to that last preceding Interest Period).
(d) If the Reference Rate from time to time in respect of
Floating Rate Notes is specified in the applicable Pricing
Supplement as being other than LIBOR or, as the case may be,
EURIBOR, the Rate of Interest in respect of such Notes will
be determined as provided in the applicable Pricing
Supplement.
9. NOTICE OF ANY WITHHOLDING OR DEDUCTION
If any Issuer and/or the Guarantor is, in respect of any payment,
compelled to withhold or deduct any amount for or on account of
taxes, duties, assessments or governmental charges as specifically
contemplated under the Conditions, such Issuer and/or the Guarantor
shall give notice thereof to the Agent as soon as it becomes aware of
the requirement to make such withholding or deduction and shall give
to the Agent such information as it shall require to enable it to
comply with such requirement.
10. DUTIES OF THE AGENT IN CONNECTION WITH EARLY REDEMPTION
(1) If any Issuer decides to redeem any Notes for the time being
outstanding prior to their Maturity Date in accordance with the
Conditions, such Issuer shall give notice of such decision to the
Agent not less than 15 days before the date on which the relevant
Issuer will give notice to the Noteholders in accordance with the
Conditions of such redemption in order to enable the Agent to
undertake its obligations herein and in the Conditions.
(2) If some only of the Notes are to be redeemed on such date, the Agent
shall, in the case of Definitive Notes, make the required drawing in
accordance with the Conditions but shall give the relevant Issuer
reasonable notice of the time and place proposed for such drawing and
the relevant Issuer shall be entitled to send representatives to
attend such drawing and shall, in the case of Notes in global form,
co-ordinate the selection of Notes to be redeemed with Euroclear and
Clearstream, Luxembourg, all in accordance with the Conditions.
(3) The Agent shall publish the notice required in connection with any
such redemption and shall at the same time also publish a separate
list of the serial numbers of any Notes in definitive form previously
drawn and not presented for redemption. Such notice shall specify the
date fixed for redemption, the redemption amount, the manner in which
redemption will be effected and, in the case of a partial redemption
of Definitive Notes, the serial numbers of the Notes to be redeemed.
Such notice will be published in accordance with the Conditions. The
Agent will also notify the other Paying Agents of any date fixed for
redemption of any Notes.
(4) Each Paying Agent will keep a stock of Put Notices and will make
such notices available on demand to holders of Definitive Notes, the
Conditions of which provide for redemption at the option of
Noteholders. Upon receipt of any Note deposited in the exercise of
such option in accordance with the Conditions, the Paying Agent with
which such Note is deposited shall hold such Note (together with any
Receipts, Coupons and Talons relating to it deposited with it) on
behalf of the depositing Noteholder (but shall not, save as provided
below, release it) until the due date for redemption of the relevant
Note consequent upon the exercise of such option, when, subject as
provided below, it shall present such Note (and any such Receipts,
Coupons and Talons) to itself for payment of the amount due thereon
together with any
18
interest due on such date in accordance with the Conditions and shall
pay such moneys in accordance with the directions of the Noteholder
contained in the relevant Put Notice. If, prior to such due date for
its redemption, such Note becomes immediately due and repayable or if
upon due presentation payment of such redemption moneys is improperly
withheld or refused, the Paying Agent concerned shall post such Note
(together with any such Receipts, Coupons and Talons) by uninsured
post to, and at the risk of, the relevant Noteholder unless the
Noteholder has otherwise requested and paid the costs of such
insurance to the relevant Paying Agent at the time of depositing the
Notes at such address as may have been given by the Noteholder in the
relevant Put Notice. At the end of each period for the exercise of
such option, each Paying Agent shall promptly notify the Agent of the
principal amount of the Notes in respect of which such option has
been exercised with it together with their serial numbers and the
Agent shall promptly notify such details to the relevant Issuer.
11. RECEIPT AND PUBLICATION OF NOTICES
(1) Forthwith upon the receipt by the Agent of a demand or notice from
any Noteholder in accordance with the Conditions the Agent shall
forward a copy thereof to the relevant Issuer and the Guarantor.
(2) On behalf of and at the request and expense of each Issuer (failing
which the Guarantor), the Agent shall cause to be published all
notices required to be given by any Issuer or the Guarantor to the
Noteholders in accordance with the Conditions.
12. CANCELLATION OF NOTES, RECEIPTS, COUPONS AND TALONS
(1) All Notes which are redeemed, all Receipts or Coupons which are paid
and all Talons which are exchanged shall be cancelled by the Agent or
Paying Agent by which they are redeemed, paid or exchanged. In
addition, all Notes which are purchased by or on behalf of any
Issuer, the Guarantor or any of their respective subsidiaries and are
surrendered to a Paying Agent for cancellation, together (in the case
of Definitive Notes) with all unmatured Receipts, Coupons or Talons
(if any) attached thereto or surrendered therewith, shall be
cancelled by the Paying Agent to which they are surrendered. Each of
the other Paying Agents shall give to the Agent details of all
payments made by it and shall deliver all cancelled Notes, Receipts,
Coupons and Talons to the Agent.
(2) A certificate stating:
(a) the aggregate nominal amount of Notes which have been
redeemed and the aggregate amount paid in respect thereof;
(b) the number of Notes cancelled together (in the case of Notes
in definitive form) with details of all unmatured Receipts,
Coupons or Talons (if any) attached thereto or delivered
therewith;
(c) the aggregate amount paid in respect of interest on the
Notes;
(d) the total number by maturity date of Receipts, Coupons and
Talons so cancelled; and
(e) (in the case of Definitive Notes) the serial numbers of such
Notes,
19
shall be given to the relevant Issuer and the Guarantor by
the Agent as soon as reasonably practicable and in any event
within three months after the date of such repayment,
payment, cancellation or replacement, as the case may be.
(3) The Agent shall destroy all cancelled Notes, Receipts, Coupons and
Talons and, forthwith upon destruction, furnish the Issuer with a
certificate of the serial numbers of the Notes (in the case of Notes
in definitive form) and the number by maturity date of Receipts,
Coupons and Talons so destroyed.
(4) Without prejudice to the obligations of the Agent pursuant to
sub-clause (2), the Agent shall keep a full and complete record of
all Notes, Receipts, Coupons and Talons (other than serial numbers of
Coupons, except those which have been replaced pursuant to Condition
10) and of their redemption, purchase by or on behalf of any Issuer
or the Guarantor or any of their respective subsidiaries and
cancellation, payment or replacement (as the case may be) and of all
replacement Notes, Receipts, Coupons or Talons issued in substitution
for mutilated, defaced, destroyed, lost or stolen Notes, Receipts,
Coupons or Talons. The Agent shall in respect of the Coupons of each
maturity retain (in the case of Coupons other than Talons) until the
expiry of ten years from the Relevant Date in respect of such Coupons
and (in the case of Talons) indefinitely either all paid or exchanged
Coupons of that maturity or a list of the serial numbers of Coupons
of that maturity still remaining unpaid or unexchanged. The Agent
shall at all reasonable times make such record available to the
relevant Issuer, the Guarantor and any persons authorised by either
of them for inspection and for the taking of copies thereof or
extracts therefrom.
(5) All records and certificates made or given pursuant to this clause
and clause 13 shall make a distinction between Notes, Receipts,
Coupons and Talons of each Series.
13. ISSUE OF REPLACEMENT NOTES, RECEIPTS, COUPONS AND TALONS
(1) Each Issuer will cause a sufficient quantity of additional forms of
Notes, Receipts, Coupons and Talons to be available, upon request, to
the Replacement Agent at its specified office for the purpose of
issuing replacement Notes, Receipts, Coupons and Talons as provided
below.
(2) The Replacement Agent will, subject to and in accordance with the
Conditions and the following provisions of this clause, cause to be
delivered any replacement Notes, Receipts, Coupons and Talons which
any Issuer may determine to issue in place of Notes, Receipts,
Coupons and Talons which have been lost, stolen, mutilated, defaced
or destroyed.
(3) In the case of a mutilated or defaced Note, the Replacement Agent
shall ensure that (unless otherwise covered by such indemnity as the
relevant Issuer may reasonably require) any replacement Note will
only have attached to it Receipts, Coupons and Talons corresponding
to those (if any) attached to the mutilated or defaced Note which is
presented for replacement.
(4) The Replacement Agent shall obtain verification in the case of an
allegedly lost, stolen or destroyed Note, Receipt, Coupon or Talon in
respect of which the serial number is known, that the Note, Receipt,
Coupon or Talon has not previously been redeemed, paid or exchanged,
as the case may be. The Replacement Agent shall not issue any
replacement Note, Receipt, Coupon or Talon unless and until the
claimant therefor shall have:
20
(a) paid such reasonable costs and expenses as may be incurred
in connection therewith;
(b) furnished it with such evidence (including evidence as to
the serial number of such Note, Receipt, Coupon or Talon)
and indemnity (which may include a bank guarantee) as the
relevant Issuer, the Guarantor and the Agent may reasonably
require;
(c) in the case of any mutilated or defaced Note, Receipt,
Coupon or Talon, surrendered it to the Replacement Agent.
(5) The Replacement Agent shall cancel any mutilated or defaced Notes,
Receipts, Coupons and Talons in respect of which replacement Notes,
Receipts, Coupons and Talons have been issued pursuant to this clause
and shall furnish the relevant Issuer and the Guarantor with a
certificate stating the serial numbers of the Notes, Receipts,
Coupons and Talons so cancelled and, unless otherwise instructed by
the relevant Issuer in writing, shall destroy such cancelled Notes,
Receipts, Coupons and Talons and furnish the relevant Issuer and the
Guarantor with a destruction certificate containing the information
specified in sub-clause 12(3).
(6) The Replacement Agent shall, on issuing any replacement Note,
Receipt, Coupon or Talon, forthwith inform the relevant Issuer, the
Guarantor, the Agent and the other Paying Agents of the serial number
of such replacement Note, Receipt, Coupon or Talon issued and (if
known) of the serial number of the Note, Receipt, Coupon or Talon in
place of which such replacement Note, Receipt, Coupon or Talon has
been issued. Whenever replacement Receipts, Coupons or Talons are
issued pursuant to the provisions of this clause, the Replacement
Agent shall also notify the Agent and any other Paying Agents of the
maturity dates of the lost, stolen, mutilated, defaced or destroyed
Receipts, Coupons or Talons and of the replacement Receipts, Coupons
or Talons issued.
(7) The Agent shall keep a full and complete record of all replacement
Notes, Receipts, Coupons and Talons issued and shall make such record
available at all reasonable times to the Issuers, the Guarantor and
any persons authorised by either of them for inspection and for the
taking of copies thereof or extracts therefrom.
(8) Whenever any Note, Receipt, Coupon or Talon for which a replacement
Note, Receipt, Coupon or Talon has been issued and in respect of
which the serial number is known is presented to the Agent or any of
the other Paying Agents for payment, the Agent or, as the case may
be, the relevant other Paying Agent shall immediately send notice
thereof to the relevant Issuer, the Guarantor and the other Paying
Agents.
(9) The Paying Agents shall issue further Coupon sheets against surrender
of Talons. A Talon so surrendered shall be cancelled by the relevant
Paying Agent who (except where the Paying Agent is the Agent) shall
inform the Agent of its serial number. Further Coupon sheets issued
on surrender of Talons shall carry the same serial number as the
surrendered Talon.
14. COPIES OF DOCUMENTS AVAILABLE FOR INSPECTION
(1) The executed Guarantee shall be deposited with the Agent and shall be
held in safe custody by it on behalf of the Noteholders, the
Receiptholders and the Couponholders at its specified office for the
time being.
21
(2) Each Paying Agent shall hold available for inspection at its
specified office during normal business hours copies of all documents
required to be so available by the Conditions of any Notes or the
rules of any relevant Stock Exchange (or any other relevant
authority). For these above purposes, each Issuer and the Guarantor
shall furnish the Paying Agents with sufficient copies of each of the
relevant documents.
15. MEETINGS OF NOTEHOLDERS
(1) The provisions of Schedule 4 hereto shall apply to meetings of the
Noteholders and shall have effect in the same manner as if set out in
this Agreement.
(2) Without prejudice to sub-clause (1), each of the Agent and the other
Paying Agents on the request of any Noteholder shall issue voting
certificates and block voting instructions in accordance with
Schedule 4 and shall forthwith give notice to the relevant Issuer and
the Guarantor in writing of any revocation or amendment of a block
voting instruction. Each of the Agent and the other Paying Agents
will keep a full and complete record of all voting certificates and
block voting instructions issued by it and will, not less than 24
hours before the time appointed for holding a meeting or adjourned
meeting, deposit at such place as the Agent shall designate or
approve, full particulars of all voting certificates and block voting
instructions issued by it in respect of such meeting or adjourned
meeting.
16. COMMISSIONS AND EXPENSES
(1) The Issuers and the Guarantor agree to pay to the Agent such
reasonable fees and commissions as the Issuers and the Guarantor and
the Agent shall separately agree in respect of the services of the
Agent and the Paying Agents hereunder and to reimburse any reasonable
out-of-pocket expenses (including reasonable legal, printing, postage
tax and cable) incurred by the Agent and the Paying Agents in
connection with their said services including the expense of making
such notifications and publications to Noteholders as are required by
the Terms and Conditions of any Notes or as may be required by any
Issuer.
(2) In addition, the Issuers and the Guarantor jointly and severally
agree with the Agent to reimburse its reasonable out-of-pocket
expenses (including legal fees) incurred by the Agent in connection
with the preparation, execution and delivery of this Agreement.
(3) The Agent will make payment of the fees and commissions due hereunder
to the Paying Agents and will reimburse their expenses promptly after
the receipt of the relevant moneys from an Issuer or the Guarantor,
as the case may be. None of the Issuers or the Guarantor shall be
responsible for any such payment or reimbursement by the Agent to the
Paying Agents.
17. INDEMNITY
(1) Each Issuer will, severally as to itself, and the Guarantor will,
jointly with the relevant Issuer and severally as to itself,
indemnify the Agent and each of the Paying Agents and each of their
directors, officers, employees and agents against any losses,
liabilities, claims, actions or demands and any reasonable
out-of-pocket costs and expenses (including, but not limited to, all
reasonable costs, charges and expenses paid or incurred in disputing
or defending any of
22
the foregoing) which it may incur or which may be made against the
Agent or any Paying Agent as a result of or in connection with its
appointment or the exercise of its powers and duties hereunder except
such as may result from its own default, negligence or bad faith or
that of its officers, directors, employees or agents or the breach by
it of the terms of this Agreement.
(2) Each of the Agent and the Paying Agents will severally indemnify each
of the Issuers and the Guarantor and each of their directors,
officers, employees and agents against any loss, liability, claim,
action or demand and any reasonable out-of-pocket costs and expenses
(including, but not limited to, all reasonable costs, legal fees,
charges and expenses paid or incurred in disputing or defending any
of the foregoing) which the relevant company may incur or which may
be made against the relevant company as a result of the breach by the
Agent or such Paying Agents of the terms of this Agreement or its
default, negligence or bad faith or that of its officers, directors,
employees or agents.
18. REPAYMENT BY THE AGENT
Upon any Issuer or the Guarantor, as the case may be, being
discharged from its obligation to make payments in respect of any
Notes pursuant to the relevant Conditions, and provided that there is
no outstanding, bona fide and proper claim in respect of any such
payments, the Agent shall forthwith on demand pay to the relevant
Issuer sums equivalent to any amounts paid to it by the relevant
Issuer or the Guarantor, as the case may be, for the purposes of such
payments.
19. CONDITIONS OF APPOINTMENT
(1) The Agent shall be entitled to deal with money paid to it by any
Issuer or the Guarantor for the purpose of this Agreement in the same
manner as other money paid to a banker by its customers except:
(a) that it shall not exercise any right of set-off, lien or
similar claim in respect thereof;
(b) as provided in sub-clause (2) below; and
(c) that it shall not be liable to account to any Issuer or the
Guarantor for any interest thereon.
(2) In acting hereunder and in connection with the Notes, the Agent and
the other Paying Agents shall act solely as agents of the Issuers and
the Guarantor and will not thereby assume any obligations towards or
relationship of agency or trust for or with any of the owners or
holders of the Notes, Receipts, Coupons or Talons.
(3) The Agent and the other Paying Agents hereby undertake to the Issuers
and the Guarantor to perform such obligations and duties, and shall
be obliged to perform such duties and only such duties, as are
herein, in the Conditions and in the Procedures Memorandum
specifically set forth, and no implied duties or obligations shall be
read into this Agreement or the Notes against the Agent and the other
Paying Agents, other than the duty to act honestly and in good faith
and to exercise the diligence of a reasonably prudent agent in
comparable circumstances.
23
(4) The Agent may consult with legal and other professional advisers and
the written opinion of such advisers shall be full and complete
protection in respect of any action taken, omitted or suffered
hereunder in good faith and in accordance with the opinion of such
advisers.
(5) Each of the Agent and the other Paying Agents shall be protected
and shall incur no liability for or in respect of any action taken,
omitted or suffered in reliance upon any instruction, request or
order from any Issuer or the Guarantor or any notice, resolution,
direction, consent, certificate, affidavit, statement, cable, telex
or other paper or document which it reasonably believes to be genuine
and to have been delivered, signed or sent by the proper party or
parties or upon written instructions from the Issuer or the
Guarantor.
(6) Any of the Agent and the other Paying Agents and their officers,
directors and employees may become the owner of, or acquire any
interest in, any Notes, Receipts, Coupons or Talons with the same
rights that it or he would have if the Agent or the relevant other
Paying Agent, as the case may be, concerned were not appointed
hereunder, and may engage or be interested in any financial or other
transaction with any Issuer or the Guarantor and may act on, or as
depositary, trustee or agent for, any committee or body of holders of
Notes or Coupons or in connection with any other obligations of any
Issuer or the Guarantor as freely as if the Agent or the relevant
other Paying Agent, as the case may be, were not appointed hereunder.
(7) Each Issuer and the Guarantor shall provide the Agent with a
certified copy of the list of persons authorised to execute documents
and take action on its behalf in connection with this Agreement and
shall notify the Agent immediately in writing if any of such persons
ceases to be so authorised or if any additional person becomes so
authorised together, in the case of an additional authorised person,
with evidence satisfactory to the Agent that such person has been so
authorised.
20. COMMUNICATION BETWEEN THE PARTIES
A copy of all communications relating to the subject matter of this
Agreement between any Issuer or the Guarantor and the Noteholders,
Receiptholders or Couponholders and any of the Paying Agents (other
than the Agent) shall be sent to the Agent by the other relevant
Paying Agent.
21. CHANGES IN AGENT AND OTHER PAYING AGENTS
(1) Each Issuer and the Guarantor agree that, for so long as any Note is
outstanding, or until moneys for the payment of all amounts in
respect of all outstanding Notes have been made available to the
Agent and have been returned to the relevant Issuer or the Guarantor,
as the case may be, as provided herein (whichever is the later):
(a) so long as any Notes are listed on any Stock Exchange or
admitted to listing by any other relevant authority, there
will at all times be a Paying Agent (which may be the Agent)
with a specified office in such place as may be required by
the rules and regulations of such Stock Exchange or other
relevant authority; and
(b) there will at all times be a Paying Agent (which may be the
Agent) with its specified office in a country outside the
tax jurisdiction of the Issuer; and
24
(c) there will at all times be an Agent; and
(d) if the conclusions of the ECOFIN Council meeting of
26th-27th November, 2000 are implemented, it will ensure
that it maintains a Paying Agent in an EU member state that
will not be obliged to withhold or deduct tax pursuant to
the relevant Directive.
In addition, each Issuer and the Guarantor shall forthwith appoint a
Paying Agent having a specified office in New York City in the
circumstances described in the final paragraph of Condition 5(b). Any
termination, appointment or change in the Agent or Paying Agent shall
only take effect (other than in the case of insolvency, when it shall
be of immediate effect) after not less than 30 nor more than 45 days'
prior notice thereof shall have been given to the Noteholders in
accordance with Condition 14.
(2) The Agent may (subject as provided in sub-clause (4) below) at any
time resign as Agent by giving at least 90 days' written notice to
the Issuers and the Guarantor of such intention on its part,
specifying the date on which its desired resignation shall become
effective.
(3) The Agent may (subject as provided in sub-clause (4) below) be
removed at any time by the Issuers and the Guarantor on at least 45
days' notice by the filing with it of an instrument in writing signed
on behalf of the Issuers and the Guarantor specifying such removal
and the date when it shall become effective.
(4) Any resignation under sub-clause (2) or removal under sub-clauses (3)
or (5) shall only take effect upon the appointment by the Issuers and
the Guarantor as hereinafter provided, of a successor Agent and
(other than in cases of insolvency of the Agent, when such
resignation or removal shall become effective immediately) on the
expiry of the notice to be given under clause 23. The Issuers and the
Guarantor agree with the Agent that if, by the day falling ten days
before the expiry of any notice under sub-clause (2), the Issuers and
the Guarantor have not appointed a successor Agent, then the Agent
shall be entitled, on behalf of the Issuers and the Guarantor, to
appoint as a successor Agent in its place a reputable financial
institution of good standing which the Issuer and the Guarantor shall
approve (such approval not to be unreasonably withheld or delayed).
(5) In case at any time the Agent resigns, or is removed, or becomes
incapable of acting or is adjudged bankrupt or insolvent, or files a
voluntary petition in bankruptcy or makes an assignment for the
benefit of its creditors or consents to the appointment of an
administrator, liquidator or administrative or other receiver of all
or a substantial part of its property, or admits in writing its
inability to pay or meet its debts as they mature or suspends payment
thereof, or if any order of any court is entered approving any
petition filed by or against it under the provisions of any
applicable bankruptcy or insolvency law or if a receiver of it or of
all or a substantial part of its property is appointed or if any
officer takes charge or control of it or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, a
successor Agent, which shall be a reputable financial institution of
good standing may be appointed by the Issuers and the Guarantor by an
instrument in writing filed with the successor Agent. Upon the
appointment as aforesaid of a successor Agent and acceptance by the
latter of such appointment and (other than in case of insolvency of
the Agent when it shall be of immediate effect) upon expiry of the
notice to be given under clause 23 the Agent so superseded shall
cease to be the Agent hereunder.
25
(6) Subject to sub-clause (1), the Issuers and the Guarantor may, after
prior consultation with the Agent, terminate the appointment of any
of the other Paying Agents at any time and/or appoint one or more
further other Paying Agents by giving to the Agent, and to the
relevant other Paying Agent at least 45 days' notice in writing to
that effect (other than in the case of insolvency of the other Paying
Agent).
(7) Subject to sub-clause (1), all or any of the Paying Agents may resign
their respective appointments hereunder at any time by giving the
Issuers, the Guarantor and the Agent at least 45 days' written notice
to that effect.
(8) Upon its resignation or removal becoming effective, the Agent or the
relevant Paying Agent:
(a) shall forthwith transfer all moneys held by it hereunder
and, if applicable, the records referred to in clauses 12(4)
and 13(7) to the successor Agent hereunder; and
(b) shall be entitled to the payment by the Issuers or the
Guarantor of its commissions, fees and expenses for the
services therefore rendered hereunder in accordance with the
terms of clause 16.
(9) Upon its appointment becoming effective, a successor Agent and any
new Paying Agent shall, without further act, deed or conveyance,
become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of its predecessor or, as the case
may be, a Paying Agent with like effect as if originally named as
Agent or (as the case may be) a Paying Agent hereunder.
22. MERGER AND CONSOLIDATION
Any corporation into which the Agent or any other Paying Agent may be
merged or converted, or any corporation with which the Agent or any
of the other Paying Agents may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Agent or any of the other Paying Agents shall be a party, or any
corporation to which the Agent or any of the other Paying Agents
shall sell or otherwise transfer all or substantially all the assets
of the Agent or any other Paying Agent shall, on the date when such
merger, conversion, consolidation or transfer becomes effective and
to the extent permitted by any applicable laws, become the successor
Agent or, as the case may be, other Paying Agent under this Agreement
without the execution or filing of any paper or any further act on
the part of the parties hereto, unless otherwise required by the
Issuers and the Guarantor, and after the said effective date all
references in this Agreement to the Agent or, as the case may be,
such other Paying Agent shall be deemed to be references to such
corporation. Written notice of any such merger, conversion,
consolidation or transfer shall forthwith be given to each Issuer and
the Guarantor by the relevant Agent or other Paying Agent.
23. NOTIFICATION OF CHANGES TO PAYING AGENTS
Following receipt of notice of resignation from the Agent or any
other Paying Agent and forthwith upon appointing a successor Agent
or, as the case may be, further or other Paying Agents or on giving
notice to terminate the appointment of any Agent or, as the case may
be,
26
other Paying Agent, the Agent (on behalf of and at the expense of the
Issuers and the Guarantor) shall give or cause to be given not more
than 45 days' nor less than 30 days' notice thereof to the
Noteholders in accordance with the Conditions.
24. CHANGE OF SPECIFIED OFFICE
If the Agent or any other Paying Agent determines to change its
specified office it shall give to the Issuers, the Guarantor and (if
applicable) the Agent written notice of such determination giving the
address of the new specified office which shall be in the same city
and stating the date on which such change is to take effect, which
shall not be less than 45 days thereafter. The Agent (on behalf and
at the expense of the Issuers and the Guarantor) shall within 15 days
of receipt of such notice (unless the appointment of the Agent or the
other relevant Paying Agent, as the case may be, is to terminate
pursuant to clause 21 on or prior to the date of such change) give or
cause to be given not more than 45 days' nor less than 30 days'
notice thereof to the Noteholders in accordance with the Conditions.
25. NOTICES
(1) Any notice or communication given hereunder shall be sufficiently
given or served:
(a) if delivered in person to the relevant address specified on
the signature pages hereof or such other address as may be
notified by the recipient in accordance with this clause
and, if so delivered, shall be deemed to have been delivered
at time of receipt; or
(b) if sent by facsimile to the relevant number specified on the
signature pages hereof or such other number as may be
notified by the recipient in accordance with this clause
and, if so sent, shall be deemed to have been delivered when
an acknowledgement of receipt is received.
Where a communication is received after 5 p.m. local time in the
place to which the communication is addressed it shall be deemed to
be received and become effective on the next business day.
(2) A copy of any notice served in accordance with subclause (1) above on
an Issuer shall be given to the Guarantor at:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telefax: 41 61 636 6828
Attention: Group Treasurer
26. TAXES AND STAMP DUTIES
The Issuers and the Guarantor jointly and severally agree to pay any
and all stamp and other documentary taxes or duties which may be
payable in Germany, the United States of
27
America, the United Kingdom, the Grand Duchy of Luxembourg, Belgium
or Switzerland in connection with the execution, delivery,
performance and enforcement of this Agreement, the Deed of Covenant
or the Deed of Guarantee.
27. CURRENCY INDEMNITY
If, under any applicable law and whether pursuant to a judgment being
made or registered against any Issuers and/or the Guarantor or in the
liquidation, insolvency or analogous process of any Issuer and/or the
Guarantor or for any other reason, any payment under or in connection
with this Agreement is made or falls to be satisfied in a currency
(the "other currency") other than that in which the relevant payment
is expressed to be due (the "required currency") under this
Agreement, then, to the extent that the payment (when converted into
the required currency at the rate of exchange on the date of payment
or, if it is not practicable for the Agent or the relevant other
Paying Agent to purchase the required currency with the other
currency on the date of payment, at the rate of exchange as soon
thereafter as it is practicable for it to do so or, in the case of a
liquidation, insolvency or analogous process at the rate of exchange
on the latest date permitted by applicable law for the determination
of liabilities in such liquidation, insolvency or analogous process)
actually received by the Agent or the relevant other Paying Agent
falls short of the amount due under the terms of this Agreement, the
relevant Issuer and the Guarantor each undertakes that it shall, as a
separate and independent obligation, indemnify and hold harmless the
Agent and each other Paying Agent against the amount of such
shortfall. For the purpose of this clause, "rate of exchange" means
the rate at which the Agent or the relevant other Paying Agent is
able on the relevant date to purchase the required currency with the
other currency and shall take into account any premium and other
costs of exchange. The parties hereto understand and agree that in
the event that the required currency is replaced by the Euro after
the date hereof, the Euro will not be considered an "other currency"
for the purposes of this clause 27.
28. AMENDMENTS
This Agreement may be amended in writing by agreement between the
Issuers, the Guarantor, the Agent and the other Paying Agents, but
without the consent of any Noteholder, Receiptholder or Couponholder,
(i) for the purpose of curing any ambiguity or of curing, correcting
or supplementing any defective provision contained herein or
complying with mandatory provisions of the law of the jurisdiction in
which the Issuer or Guarantor is incorporated or (ii) in any manner
which the parties may mutually deem necessary or desirable and which
shall not be materially prejudicial to the interests of the
Noteholders. The Issuers, the Guarantor and the Agent may also agree
any modification pursuant to Condition 15.
29. DESCRIPTIVE HEADINGS
The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
28
30. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Agreement, but this does not affect any right or remedy of a
third party which exists or is available apart from that Act.
31. GOVERNING LAW AND SUBMISSION TO JURISDICTION
(1) This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
(2) Each party hereto hereby irrevocably agrees, for the exclusive
benefit of the other parties hereto, that the courts of England are
to have jurisdiction to settle any disputes which may arise out of or
in connection with this Agreement and that accordingly any suit,
action or proceedings (together referred to as "Proceedings") arising
out of or in connection with this Agreement may be brought in such
courts. Each party hereto hereby irrevocably waives any objection
which it may have now or hereafter to the laying of the venue of any
such Proceedings in any such court and any claim that any such
Proceedings have been brought in an inconvenient forum and hereby
further irrevocably agrees that a judgment in any such Proceedings
brought in the English courts shall be conclusive and binding upon it
and may be enforced in the courts of any other jurisdiction (subject
to the laws of the jurisdiction in which enforcement is sought).
Nothing contained in this clause shall limit any right to take
Proceedings against any party hereto in any other court of competent
jurisdiction (outside the Contracting States as defined in section
1(3) of the Civil Jurisdiction and Judgments Act 1982), nor shall the
taking of Proceedings in one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction, whether concurrently
or not (subject to the laws of the relevant jurisdictions). Each of
CIBA US, CIBA Germany, CIBA Bermuda and the Guarantor each hereby
appoints CIBA UK as its agent for service of process, and undertakes
that, in the event of CIBA UK ceasing so to act or ceasing to be
registered in England, it will appoint another person, as the Agent
may approve, as its agent for service of process in England in
respect of any Proceedings. The Replacement Agent hereby appoints the
Agent as its agent for service of process, and undertakes that, in
the event of the Agent ceasing so to act or ceasing to be registered
in England, it will appoint another person, as the Guarantor may
approve, as its agent for service of process in England in respect of
any Proceedings. Nothing herein shall affect the right to serve
process in any other manner permitted by law.
32. COUNTERPARTS
This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together
constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
29
APPENDIX A
FORM OF CALCULATION AGENCY AGREEMENT
Dated [ ], 2[ ]
[CIBA SPECIALTY CHEMICALS PLC/
CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
as Issuer
- and -
CIBA SPECIALTY CHEMICALS HOLDING INC.
as Guarantor
U.S. $2,000,000,000
EURO MEDIUM TERM NOTE PROGRAM
-------------------------------------
CALCULATION AGENCY AGREEMENT
-------------------------------------
[▇▇▇▇▇ & ▇▇▇▇▇ LOGO]
London
30
CALCULATION AGENCY AGREEMENT
in respect of a
EURO MEDIUM TERM NOTE PROGRAM
THIS AGREEMENT is made on [ ], 2[ ] BETWEEN:
(1) [CIBA SPECIALTY CHEMICALS CORPORATION of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, United States/CIBA SPECIALTY
CHEMICALS PLC of ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ 2NX/CIBA
SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH of Chemiestrasse D-68623
Lampertheim, Germany/CIBA SPECIALTY CHEMICALS EUROFINANCE LTD. of
Cedar House, 41 Cedar Avenue, ▇▇▇▇▇▇▇▇ HM12, Bermuda] (the "Issuer");
(2) CIBA SPECIALTY CHEMICALS HOLDING INC. of ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the "Guarantor"); and
(3) [ ] of [ ] (the "Calculation Agent", which expression shall include
its successor or successors for the time being as calculation agent
hereunder).
WHEREAS:
(A) The Issuer, the Guarantor and certain other subsidiaries of the
Guarantor have entered into an amended and restated program agreement
with the Dealers named therein dated 27th March, 2002 under which the
Issuer and such other subsidiaries may issue Euro Medium Term Notes
("Notes").
(B) The Notes will be issued subject to and with the benefit of an
amended and restated agency agreement (the "Agency Agreement") dated
27th March, 2002 and entered into between the Issuer, the Guarantor,
such other subsidiaries, JPMorgan Chase Bank as Agent (the "Agent"
which expression shall include its successor or successors for the
time being under the Agency Agreement) and the other parties named
therein.
NOW IT IS HEREBY AGREED that:
1. APPOINTMENT OF THE CALCULATION AGENT
The Issuer and the Guarantor hereby appoint [ ] as Calculation Agent
in respect of each Series of Notes described in the Schedule hereto
(the "Relevant Notes") for the purposes set out in clause 2 below,
all upon the provisions hereinafter set out. The agreement of the
parties hereto that this Agreement is to apply to each Series of
Relevant Notes shall be evidenced by the manuscript annotation and
signature in counterpart of the Schedule hereto.
2. DUTIES OF CALCULATION AGENT
The Calculation Agent shall in relation to each Series of Relevant
Notes perform all the functions and duties imposed on the Calculation
Agent by the terms and conditions of the
31
Relevant Notes (the "Conditions") including endorsing the Schedule
hereto appropriately in relation to each Series of Relevant Notes.
3. EXPENSES
Save as provided in clause 4 below, the Calculation Agent shall bear
all expenses incurred by it in connection with its said services.
4. INDEMNITY
(1) The Issuer and the Guarantor shall jointly and severally indemnify
and keep indemnified the Calculation Agent, its directors, officers,
employees and agents against any losses, liabilities, claims, actions
or demands and any reasonable out-of-pocket costs and expenses which
it may incur or which may be made against it by third parties as a
result of or in connection with its appointment or the exercise of
its powers and duties under this Agreement except such as may result
from its own default, negligence or bad faith or that of its
officers, directors, employees or agents or the breach by it of the
terms of this Agreement. The Issuer and the Guarantor must be
notified immediately of such claims, actions or demands and be
invited and permitted to participate in the defence thereof.
(2) The Calculation Agent shall indemnify each of the Issuer and the
Guarantor and each of their officers, directors, employees and agents
against any losses, liabilities, claims, actions or demands and any
reasonable out-of-pocket costs and expenses which it may incur or
which may be made against it as a direct result of the breach by the
Calculation Agent of the terms of this Agreement or its default,
negligence or bad faith or that its agents, officers, directors or
employees. The Calculation Agent must be notified immediately of such
claims, actions or demands and be invited and permitted to
participate in the defence thereof.
5. CONDITIONS OF APPOINTMENT
(1) In acting hereunder and in connection with the Relevant Notes the
Calculation Agent shall act as agent of the Issuer and the Guarantor
and shall not thereby assume any obligations towards or relationship
of agency or trust for or with any of the owners or holders of the
Relevant Notes or the receipts or coupons (if any) appertaining
thereto (the "Receipts" and the "Coupons", respectively).
(2) In relation to each issue of Relevant Notes the Calculation Agent
shall be obliged to perform such duties and only such duties as are
herein and in the Conditions specifically set forth and no implied
duties or obligations shall be read into this Agreement or the
Conditions against the Calculation Agent, other than the duty to act
honestly and in good faith and to exercise the diligence of a
reasonably prudent agent in comparable circumstances.
(3) The Calculation Agent may consult with legal and other professional
advisers and the written opinion of such advisers shall be full and
complete protection in respect of any action taken, omitted or
suffered hereunder in good faith and in accordance with the opinion
of such advisers.
(4) The Calculation Agent shall be protected and shall incur no liability
for or in respect of any action taken, omitted or suffered in
reliance upon any instruction, request or order from the
32
Issuer or the Guarantor or any notice, resolution, direction,
consent, certificate, affidavit, statement, cable, telex or other
paper or document which it reasonably believes to be genuine and to
have been delivered, signed or sent by the proper party or parties or
upon written instructions from the Issuer or the Guarantor. (5) The
Calculation Agent and any of its officers, directors and employees
may become the owner of, or acquire any interest in, any Notes,
Receipts or Coupons (if any) with the same rights that it or he would
have if the Calculation Agent were not appointed hereunder, and may
engage or be interested in any financial or other transaction with
the Issuer or the Guarantor and may act on, or as depositary, trustee
or agent for, any committee or body of holders of Notes or Coupons
(if any) or in connection with any other obligations of the Issuer or
the Guarantor as freely as if the Calculation Agent were not
appointed hereunder.
6. TERMINATION OF APPOINTMENT
(1) The Issuer and the Guarantor may terminate the appointment of the
Calculation Agent at any time by giving to the Calculation Agent at
least 45 days' prior written notice to that effect, provided that, so
long as any of the Relevant Notes is outstanding:
(a) such notice shall not expire less than 45 days before any
date upon which any payment is due in respect of any
Relevant Notes; and
(b) notice shall be given in accordance with the Conditions to
the holders of the Relevant Notes at least 30 days prior to
any removal of the Calculation Agent.
(2) Notwithstanding the provisions of sub-clause (1) above, if at any time:
(a) the Calculation Agent becomes incapable of acting, or is
adjudged bankrupt or insolvent, or files a voluntary
petition in bankruptcy or makes an assignment for the
benefit of its creditors or consents to the appointment of
an administrator, liquidator or administrative or other
receiver of all or any substantial part of its property, or
it admits in writing its inability to pay or meet its debts
as they may mature or suspends payment thereof, or if any
order of any court is entered approving any petition filed
by or against it under the provisions of any applicable
bankruptcy or insolvency law or if a receiver of it or of
all or a substantial part of its property is appointed or if
any officer takes charge or control of the Calculation Agent
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation; or
(b) the Calculation Agent fails duly to perform any function or
duty imposed upon it by the Conditions and this Agreement,
the Issuer and the Guarantor may forthwith without notice terminate
the appointment of the Calculation Agent, in which event notice
thereof shall be given to the holders of the Relevant Notes in
accordance with the Conditions as soon as practicable thereafter.
(3) The termination of the appointment pursuant to sub-clause (1) or (2)
above of the Calculation Agent hereunder shall not entitle the
Calculation Agent to any amount by way of compensation but shall be
without prejudice to any amount then accrued due.
33
(4) The Calculation Agent may resign its appointment hereunder at any
time by giving to the Issuer and the Guarantor at least 90 days'
prior written notice to that effect. Following receipt of a notice of
resignation from the Calculation Agent, the Issuer or the Guarantor
shall promptly give notice thereof to the holders of the Relevant
Notes in accordance with the Conditions.
(5) Notwithstanding the provisions of sub-clauses (1), (2) and (4)
above, so long as any of the Relevant Notes is outstanding, the
termination of the appointment of the Calculation Agent (whether by
the Issuer, the Guarantor or by the resignation of the Calculation
Agent) shall not be effective unless upon the expiry of the relevant
notice a successor Calculation Agent has been appointed.
(6) Any successor Calculation Agent appointed hereunder shall execute and
deliver to its predecessor, the Issuer and the Guarantor an
instrument accepting such appointment hereunder, and thereupon such a
successor Calculation Agent, without further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like
effect as if originally named as the Calculation Agent hereunder.
(7) If the appointment of the Calculation Agent hereunder is terminated
(whether by the Issuer and the Guarantor or by the resignation of the
Calculation Agent), the Calculation Agent shall on the date on which
such termination takes effect deliver to the successor Calculation
Agent any records concerning the Relevant Notes maintained by it (and
copies of such documents and records as it is obliged by law or
regulation to retain but except such documents it is required by law
not to release), but shall have no other duties or responsibilities
hereunder.
(8) Any corporation into which the Calculation Agent may be merged or
converted, or any corporation with which the Calculation Agent may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Calculation Agent shall be a
party, or any corporation to which the Calculation Agent shall sell
or otherwise transfer all or substantially all of its assets shall,
on the date when such merger, consolidation or transfer becomes
effective and to the extent permitted by any applicable laws, become
the successor Calculation Agent under this Agreement without the
execution or filing of any paper or any further act on the part of
any of the parties hereto, unless otherwise required by the Issuer
and the Guarantor, and after the said effective date all references
in this Agreement to the Calculation Agent shall be deemed to be
references to such corporation. Written notice of any such merger,
conversion, consolidation or transfer shall forthwith be given to the
Issuer, the Guarantor and the Agent.
(9) Upon giving notice of the intended termination of the appointment of
the Calculation Agent, the Issuer and the Guarantor shall use all
reasonable endeavours to appoint a further financial institution of
good standing as successor Calculation Agent.
7. NOTICES
Any notice or communication given hereunder shall be sufficiently
given or served:
(a) if delivered in person to the relevant address specified on
the signature pages hereof or such other address as may be
notified by the recipient in accordance with this
34
clause and, if so delivered, shall be deemed to have been
delivered at time of receipt; or
(b) if sent by facsimile to the relevant number specified on the
signature pages hereof or such other number as may be
notified by the recipient in accordance with this clause
and, if so sent, shall be deemed to have been delivered when
an acknowledgement of receipt is received (in the case of
facsimile).
Where a communication is received after 5 p.m. local time in the
place to which the communication is addressed it shall be deemed to
be received and become effective on the next business day.
8. DESCRIPTIVE HEADINGS AND COUNTERPARTS
(1) The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
(2) This Agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same agreement
and any party may enter into this Agreement by executing a
counterpart.
9. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Agreement, but this does not affect any right or remedy of a
third party which exists or is available apart from that Act.
10. GOVERNING LAW AND SUBMISSION TO JURISDICTION
(1) This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
(2) Each party hereto hereby irrevocably agrees, for the exclusive
benefit of the other parties hereto, that the courts of England are
to have jurisdiction to settle any disputes which may arise out of or
in connection with this Agreement and that accordingly any suit,
action or proceedings (together referred to as "Proceedings") arising
out of or in connection with this Agreement may be brought in such
courts. Each party hereto hereby irrevocably waives any objection
which it may have now or hereafter to the laying of the venue of any
such Proceedings in any such court and any claim that any such
Proceedings have been brought in an inconvenient forum and hereby
further irrevocably agrees that a judgment in any such Proceedings
brought in the English courts shall be conclusive and binding upon it
and may be enforced in the courts of any other jurisdiction (subject
to the laws of the jurisdiction in which enforcement is sought).
Nothing contained in this clause shall limit any right to take
Proceedings against any party in any other court of competent
jurisdiction (outside the Contracting States, as defined in section
1(3) of the Civil Jurisdiction and Judgments Act 1982), nor shall the
taking of Proceedings in one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction, whether concurrently
or not (subject to the laws of the relevant jurisdictions). The
[Issuer and the] Guarantor [each] hereby appoints the [Issuer/CIBA
Specialty Chemicals PLC] as its agent for service of process, and
undertakes that, in the event of [the Issuer/CIBA Specialty Chemicals
PLC] ceasing so to act or ceasing
35
to be registered in England, it will appoint another person, as the
Calculation Agent may approve, as its agent for the service of
process in England in respect of any Proceedings. [The Calculation
Agent hereby appoints [ ] as its agent for service of process, and
undertakes that, in the event of [ ] ceasing so to act or ceasing to
be registered in England, it will appoint another person, as the
relevant Issuer or the Guarantor may approve, as its agent for
service of process in England in respect of any Proceedings]. Nothing
herein shall affect the right to serve process in any manner
permitted by law.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
36
SCHEDULE TO THE CALCULATION AGENCY AGREEMENT
Series number Issue Date Maturity Date Title and Nominal Annotation by
Amount Calculation
Agent/Issuer
37
Issuer
[CIBA SPECIALTY CHEMICALS CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: 001 914 785 2650
Attention: Treasurer]/
[CIBA SPECIALTY CHEMICALS PLC
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇
Telefax: 44 1 625 888 380
Attention: Treasurer]/
[CIBA SPEZIALITATENCHEMIE HOLDING ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telephone: ▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Telefax: 00 49 6206 152 816
Attention: Treasurer]
[CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
c/o Reid Management Limited
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
PO Box HM1179
▇▇▇▇▇▇▇▇ HMEX
Bermuda
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇]
By:
38
Guarantor
CIBA SPECIALTY CHEMICALS HOLDING INC.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telefax No: 00 41 61 636 6828
Attention: Group Treasurer
By: By:
Calculation Agent
[
]
Telephone: [ ]
Telefax No: [ ]
Attention: [ ]
39
SCHEDULE 1
TERMS AND CONDITIONS OF THE NOTES
[21 blank pages to follow]
61
AGENT
JPMORGAN CHASE BANK
TRINITY TOWER
9 ▇▇▇▇▇▇ ▇▇▇▇ STREET
LONDON E1W 1YT
PAYING AGENT
▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A.
▇ ▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
and/or such other or further Agent and other or further Paying Agents and/or
specified offices as may from time to time be duly appointed by the Issuer and
the Guarantor and notice of which has been given to the Noteholders.
62
SCHEDULE 2
FORMS OF GLOBAL AND DEFINITIVE NOTES, RECEIPTS,
COUPONS AND TALONS
PART I
FORM OF TEMPORARY GLOBAL NOTE
THIS GLOBAL NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO OR FOR THE
BENEFIT OF U.S. PERSONS OTHER THAN PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS
NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN
SECTION 6049(B)(4) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES AND THE
REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED
STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(B)(4)
OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).]1
[ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE
UNITED STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]2
[CIBA SPECIALTY CHEMICALS CORPORATION
(a company incorporated under the laws of the State of Delaware, U.S.A.)/
CIBA SPECIALTY CHEMICALS PLC
(a company incorporated with limited liability in England)/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
(a company incorporated with limited liability in Germany)/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
(a company incorporated with limited liability in Bermuda)]
unconditionally and irrevocably guaranteed by
------------------
1 This legend to appear on Notes issued by Ciba Specialty Chemicals
Corporation with a maturity of 183 days or less.
2 This legend to appear on all Notes with a maturity of more than 183
days.
63
CIBA SPECIALTY CHEMICALS HOLDING INC.
(a company incorporated with limited liability in Switzerland)
TEMPORARY GLOBAL NOTE
This Global Note is a Temporary Global Note in respect of a duly authorised
issue of Euro Medium Term Notes (the "Notes") of [Ciba Specialty Chemicals
Corporation/Ciba Specialty Chemicals PLC/Ciba Spezialitatenchemie Holding
Deutschland GmbH/Ciba Specialty Chemicals Eurofinance Ltd.] (the "Issuer")
described, and having the provisions specified, in the Pricing Supplement
attached hereto (the "Pricing Supplement"). Payments in respect of the Notes
have been unconditionally and irrevocably guaranteed by Ciba Specialty
Chemicals Holding Inc. (the "Guarantor"). References herein to the Conditions
shall be to the Terms and Conditions of the Notes as set out in Schedule 1 to
the Agency Agreement (as defined below) as modified and supplemented by the
information set out in the Pricing Supplement, but in the event of any
conflict between the provisions of that Schedule and the information set out
in the Pricing Supplement, the Pricing Supplement will prevail.
Words and expressions defined or set out in the Conditions and/or the Pricing
Supplement shall bear the same meaning when used herein.
This Global Note is issued subject to, and with the benefit of, the Conditions
and an amended and restated Agency Agreement (the "Agency Agreement", which
expression shall be construed as a reference to that agreement as the same may
be amended, supplemented or restated from time to time) dated 27th March, 2002
and made between, inter alia, the Issuer, the Guarantor, JPMorgan Chase Bank
(the "Agent") and the other agents named therein.
For value received the Issuer, subject to and in accordance with the
Conditions, promises to pay to the bearer hereof on each Instalment Date (if
the Notes are repayable in instalments) and on the Maturity Date and/or on
such earlier date(s) as all or any of the Notes represented by this Global
Note may become due and repayable in accordance with the Conditions, the
amount payable under the Conditions in respect of such Notes on each such date
and to pay interest (if any) on the nominal amount of the Notes from time to
time represented by this Global Note calculated and payable as provided in the
Conditions together with any other sums payable under the Conditions, upon
presentation and, at maturity, surrender of this Global Note at the office of
the Agent at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at the
specified office of any of the other paying agents located outside the United
States (except as provided in the Conditions) from time to time appointed by
the Issuer and the Guarantor in respect of the Notes, but in each case subject
to the requirements as to certification provided herein. On any redemption or
payment of an instalment or interest being made in respect of, or purchase and
cancellation of, any of the Notes represented by this Global Note details of
such redemption, payment or purchase and cancellation (as the case may be)
shall be entered by or on behalf of the Issuer in Schedule One hereto and the
relevant space in Schedule One hereto recording any such redemption, payment
or purchase and cancellation (as the case may be) shall be signed by or on
behalf of the Issuer.
Upon any such redemption, payment of an instalment or purchase and
cancellation, as aforesaid, the nominal amount of the Notes represented by
this Global Note shall be reduced by the nominal amount of such Notes so
redeemed or purchased and cancelled or the amount of such instalment. The
nominal amount of the Notes represented by this Global Note following any such
redemption, payment of an instalment or purchase and cancellation as aforesaid
or any exchange as referred to below shall
64
be the nominal amount most recently entered by or on behalf of the Issuer in
the relevant column in Part II, III or IV of Schedule One or Schedule Two
hereto.
Prior to the Exchange Date (as defined below), all payments (if any) on this
Global Note will only be made to the bearer hereof to the extent that there is
presented to the Agent by Clearstream, Luxembourg or Euroclear a certificate,
substantially in the form set out in Schedule Three hereto, to
the effect that it has received from or in respect of a person entitled to a
particular nominal amount of the Notes (as shown by its records) a certificate
in or substantially in the form of Certificate "A" as set out in Schedule
Three hereto. The bearer of this Global Note will not be entitled to receive
any payment of interest hereon due on or after the Exchange Date unless upon
due certification exchange of this Global Note is improperly withheld or
refused.
On or after the date (the "Exchange Date") which is 40 days after the later of
the Issue Date and completion of the distribution of the Tranche of Notes
represented by this Global Note or such later date specified in the Pricing
Supplement, this Global Note may be exchanged in whole or in part (free of
charge) for, as specified in the Pricing Supplement, either security printed
Definitive Notes and (if applicable) Coupons, Receipts and Talons in the form
set out in Parts III, IV, V and VI respectively of Schedule 2 to the Agency
Agreement (on the basis that all the appropriate details have been included on
the face of such Definitive Notes and (if applicable) Coupons, Receipts and
Talons and the Pricing Supplement (or the relevant provisions of the Pricing
Supplement) have been either endorsed on or attached to such Definitive Notes)
or a Permanent Global Note in or substantially in the form set out in Part II
of Schedule 2 to the Agency Agreement (together with the Pricing Supplement
attached thereto) upon notice being given by Euroclear and/or Clearstream,
Luxembourg acting on the instructions of any holder of an interest in this
Global Note and subject, in the case of Definitive Notes, to such notice
period as is specified in the Pricing Supplement.
If Definitive Notes and (if applicable) Coupons, Receipts and/or Talons have
already been issued in exchange for all the Notes represented for the time
being by the Permanent Global Note, then this Global Note may only thereafter
be exchanged for Definitive Notes and (if applicable) Coupons, Receipts and/or
Talons pursuant to the terms hereof.
Presentation of this Global Note for exchange shall be made by the bearer
hereof on any day (other than a Saturday or Sunday) on which banks are open
for business in London at the office of the Agent specified above. The Issuer
shall procure that the Definitive Notes or (as the case may be) the Permanent
Global Note shall be so issued and delivered in exchange for only that portion
of this Global Note in respect of which there shall have been presented to the
Agent by Euroclear or Clearstream, Luxembourg a certificate, substantially in
the form set out in Schedule Three hereto, to the effect that it has received
from or in respect of a person entitled to a beneficial interest in a
particular nominal amount of the Notes (as shown by its records) a certificate
from such person in or substantially in the form of Certificate "A" as set out
in Schedule Three hereto.
On an exchange of the whole of this Global Note, this Global Note shall be
surrendered to the Agent. On an exchange of part only of this Global Note,
details of such exchange shall be entered by or on behalf of the Issuer in
Schedule Two hereto and the relevant space in Schedule Two hereto recording
such exchange shall be signed by or on behalf of the Issuer, whereupon the
nominal amount of this Global Note and the Notes represented by this Global
Note shall be reduced by the nominal amount so exchanged. On any exchange of
this Global Note for a Permanent Global Note, details of such exchange shall
be entered by or on behalf of the Issuer in Schedule Two to the Permanent
Global
65
Note and the relevant space in Schedule Two thereto recording such
exchange shall be signed by or on behalf of the Issuer.
Until the exchange of the whole of this Global Note as aforesaid, the bearer
hereof shall in all respects (except as otherwise provided herein) be entitled
to the same benefits as if he were the bearer of Definitive Notes and the
relative Coupons, Receipts and/or Talons (if any) in the forms set out in
Parts III, Part IV, Part V and Part VI, respectively, of Schedule 2 to the
Agency Agreement.
In the event that this Global Note (or any part hereof) has become due and
repayable in accordance with the Conditions or that the Maturity Date has
occurred and, in either case, payment in full of the amount due has not been
made to the bearer in accordance with the foregoing then, unless within the
period of fifteen days commencing on the relevant due date payment in full of
the amount due in respect of this Global Note is received by the bearer in
accordance with the foregoing, this Global Note will become void at 8.00 p.m.
(London time) on such fifteenth day and the bearer will have no further rights
under this Global Note (but without prejudice to the rights which the bearer
or any other person may have under the amended and restated Deed of Covenant
executed, inter alia, by the Issuer on 27th March, 2002 in respect of the Euro
Medium Term Notes issued under the Program Agreement pursuant to which this
Global Note is issued).
No rights are conferred on any person under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Global Note, but this does not
affect any right or remedy of any person which exists or is available apart
from that Act.
This Global Note is governed by, and shall be construed in accordance with,
English law.
This Global Note shall not be valid unless authenticated by the Agent.
IN WITNESS whereof the Issuer has caused this Global Note to be duly executed
on its behalf.
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
By:
---------------------------------
Authorised Signatory
Authenticated without recourse,
warranty or liability by
JPMORGAN CHASE BANK
By:
--------------------------------
Authorised Signatory
66
Schedule One to the Temporary Global Note
PART I
INTEREST PAYMENTS
Date made Total amount of interest Amount of interest paid Confirmation of payment on
payable behalf of the Issuer
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
67
Date made Total amount of interest Amount of interest paid Confirmation of payment on
payable behalf of the Issuer
--------- ------------------------ ------------------------ -----------------------------
--------- ------------------------ ------------------------ -----------------------------
68
PART II
PAYMENT OF INSTALMENT AMOUNTS
Date made Total amount of Amount of Instalment Remaining nominal amount Confirmation of
Instalment Amounts Amounts paid of this Global Note payment on behalf of
payable following such payment* the Issuer
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule Two
in order to determine this amount.
69
PART III
REDEMPTIONS
Date made Total amount of Amount of principal paid Remaining nominal Confirmation of
principal payable amount of this Global redemption on behalf
Note following such of the Issuer
redemption*
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
--------- ------------------------ ------------------------ ----------------------------- ---------------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule Two
in order to determine this amount.
70
PART IV
PURCHASES AND CANCELLATIONS
Date made Part of nominal amount of Remaining nominal amount of Confirmation of purchase and
this Global Note purchased this Global Note following cancellation on behalf of the
and cancelled such purchase and cancellation* Issuer
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
---------- -------------------------- ------------------------------- -----------------------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule Two
in order to determine this amount.
71
Schedule Two to the Temporary Global Note
EXCHANGES
FOR DEFINITIVE NOTES OR PERMANENT GLOBAL NOTE
The following exchanges of a part of this Global Note for Definitive Notes or
a Permanent Global Note have been made:
Date made Nominal amount of this Remaining nominal amount of Notation made on behalf of
Global Note exchanged for this Global Note following the Issuer
Definitive Notes or a such exchange*
Permanent Global Note
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
---------- -------------------------- --------------------------- -----------------------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule Two
in order to determine this amount.
72
Schedule Three to the Temporary Global Note
FORM OF CERTIFICATE TO BE PRESENTED BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member
organisations appearing in our records as persons being entitled to a
beneficial interest in a portion of the principal amount set forth below (our
"Member Organisations") substantially to the effect set forth in the Agency
Agreement, as of the date hereof, [ ] principal amount of the above-captioned
Securities (i) is owned by persons that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States persons"), (ii) is owned by United
States persons that (a) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Sections
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution has agreed, on its
own behalf or through its agent, that we may advise the Issuer or the Issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institutions for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that United States or foreign financial institutions described
in clause (iii) above (whether or not also described in clause (i) or (ii))
have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction; and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended (the "Act") then
this is also to certify with respect to such principal amount of Securities
set forth above that, except as set forth below, we have received in writing,
by tested telex or by electronic transmission, from our Member Organisations
entitled to a portion of such principal amount, certifications with respect to
such portion, substantially to the effect that the Securities are beneficially
owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased the
Securities in transactions which did not require registration under the Act.
73
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global Security excepted in
such certifications and (ii) that as of the date hereof we have not received
any notification from any of our Member Organisations to the effect that the
statements made by such Member Organisations with respect to any portion of
the part submitted herewith for exchange (or, if relevant, exercise of any
rights or collection of any interest) are no longer true and cannot be relied
upon as the date hereof.
We understand that this certification is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be
relevant, we irrevocably authorise you to produce this certification to any
interested party in such proceedings.
Dated: [ ], 2[ ]*
Yours faithfully,
[Euroclear Bank S.A./N.V.
as operator of the Euroclear
System]
or
[Clearstream Banking, societe anonyme]
By:
------------------------------------------------------------------------
* To be dated no earlier than the Exchange Date
74
CERTIFICATE "A"
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that
(a) are foreign branches of United States financial institutions (as defined
in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) acquired
the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or
through its agent, that you may advise the Issuer or the Issuer's agent that
it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition
if the owner of the Securities is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)) this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended (the "Act") then
this is also to certify with respect to such principal amount of Securities
set forth above that, except as set forth below, the Securities are
beneficially owned by (a) a non-U.S. person(s) or (b) a U.S. person(s) who
purchased the Securities in transactions which did not require registration
under the Act. As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction; and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held
by you for our account in accordance with your documented procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
75
This certification excepts and does not relate to [ ] of such interest in the
above Securities in respect of which we are not able to certify and as to
which we understand exchange and delivery of definitive Securities (or, if
relevant, exercise of any right or collection of any interest) cannot be made
until we do so certify.
We understand that this certification is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be
relevant, we irrevocably authorise you to produce this certification to any
interested party in such proceedings.
Dated: [ ], [ ]*
Name of Person Making Certification
By:
----------------------------------------------------
* To be dated no earlier than the fifteenth day prior to the Exchange Date.
76
PART II
FORM OF PERMANENT GLOBAL NOTE
THE GLOBAL NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO OR FOR THE
BENEFIT OF U.S. PERSONS OTHER THAN PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS
NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN
SECTION 6049(B)(4) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES AND THE
REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED
STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(B)(4)
OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).]1
[ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE
UNITED STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]2
[CIBA SPECIALTY CHEMICALS CORPORATION.]
(a company incorporated under the laws of the State of Delaware, U.S.A.)/
CIBA SPECIALTY CHEMICALS PLC
(a company incorporated with limited liability in England)/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
(a company incorporated with limited liability in Germany)/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
(a company incorporated with limited liability in Bermuda)]
unconditionally and irrevocably guaranteed by
CIBA SPECIALTY CHEMICALS HOLDING INC.
(a company incorporated with limited liability in Switzerland)
------------------------
1 This legend to appear on Notes issued by Ciba Specialty Chemicals
Corporation with a maturity of 183 days or less.
2 This legend to appear on all Notes with a maturity of more than 183
days.
77
PERMANENT GLOBAL NOTE
This Global Note is a Permanent Global Note in respect of a duly authorised
issue of Euro Medium Term Notes (the "Notes") of [Ciba Specialty Chemicals
Corporation/Ciba Specialty Chemicals PLC/Ciba Spezialitatenchemie Holding
Deutschland GmbH/Ciba Specialty Chemicals Eurofinance Ltd.] (the "Issuer")
described, and having the provisions specified, in the Pricing Supplement or
Pricing Supplements attached hereto (together the "Pricing Supplement").
Payments in respect of the Notes have been unconditionally and irrevocably
guaranteed by Ciba Specialty Chemicals Holding Inc. (the "Guarantor").
References herein to the Conditions shall be to the Terms and Conditions of
the Notes as set out in Schedule 1 to the Agency Agreement (as defined below)
as modified and supplemented by the information set out in the Pricing
Supplement, but in the event of any conflict between the provisions of that
Schedule and the information set out in the Pricing Supplement, the Pricing
Supplement will prevail.
Words and expressions defined or set out in the Conditions and/or the Pricing
Supplement shall bear the same meaning when used herein.
This Global Note is issued subject to, and with the benefit of, the Conditions
and an amended and restated Agency Agreement (the "Agency Agreement", which
expression shall be construed as a reference to that agreement as the same may
be amended, supplemented or restated from time to time) dated 27th March, 2002
and made between, inter alia, the Issuer, the Guarantor, JPMorgan Chase Bank
(the "Agent") and the other agents named therein.
For value received the Issuer, subject to and in accordance with the
Conditions, promises to pay to the bearer hereof on each Instalment Date (if
the Notes are repayable in instalments) and on the Maturity Date and/or on
such earlier date(s) as all or any of the Notes represented by this Global
Note may become due and repayable in accordance with the Conditions, the
amount payable under the Conditions in respect of such Notes on each such date
and to pay interest (if any) on the nominal amount of the Notes from time to
time represented by this Global Note calculated and payable as provided in the
Conditions together with any other sums payable under the Conditions, upon
presentation and, at maturity, surrender of this Global Note at the office of
the Agent at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or at the
specified office of any of the other paying agents located outside the United
States (except as provided in the Conditions) from time to time appointed by
the Issuer and the Guarantor in respect of the Notes. On any redemption or
payment of an instalment or interest being made in respect of, or purchase and
cancellation of, any of the Notes represented by this Global Note details of
such redemption, payment or purchase and cancellation (as the case may be)
shall be entered by or on behalf of the Issuer in Schedule One hereto and the
relevant space in Schedule One hereto recording any such redemption, payment
or purchase and cancellation (as the case may be) shall be signed by or on
behalf of the Issuer.
Upon any such redemption, payment of an instalment or purchase and
cancellation as aforesaid, the nominal amount of the Notes represented by this
Global Note shall be reduced by the nominal amount of such Notes so redeemed
or purchased and cancelled or the amount of such instalment. The nominal
amount of the Notes represented by this Global Note following any such
redemption, payment of an instalment or purchase and cancellation as
aforesaid, or any exchange as referred to below shall be the nominal amount
most recently entered by or on behalf of the Issuer in the relevant column in
Part II, III or IV of Schedule One or Schedule Two hereto.
78
On any exchange of the Temporary Global Note issued in respect of the Notes
for this Global Note or any part hereof, details of such exchange shall be
entered by or on behalf of the Issuer in Schedule Two hereto and the relevant
space in Schedule Two hereto recording such exchange shall be signed by or on
behalf of the Issuer, whereupon the nominal amount of the Notes represented by
this Global Note shall be increased by the nominal amount of the Temporary
Global Note so exchanged.
This Global Note may be exchanged in whole but not in part (free of charge),
for Definitive Notes and (if applicable) Coupons, Receipts and/or Talons in
the form set out in Part III, Part IV, Part V and
Part VI respectively, of Schedule 2 to the Agency Agreement (on the basis that
all the appropriate details have been included on the face of such Definitive
Notes and (if applicable) Coupons, Receipts and Talons and the Pricing
Supplement (or the relevant provisions of the Pricing Supplement) have been
endorsed on or attached to such Definitive Notes) either, as specified in the
applicable Pricing Supplement:
(i) upon not less than 60 days' written notice being given to the Agent
by Euroclear and/or Clearstream, Luxembourg acting on the
instructions of any holder of an interest in this Global Note; or
(ii) only upon the occurrence of any Exchange Event.
An "Exchange Event" means:
(1) an Event of Default has occurred and is continuing;
(2) the Issuer has been notified that either Euroclear or
Clearstream, Luxembourg has been closed for business for a
continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) or has announced an
intention permanently to cease business or has in fact done
so and no alternative clearing system is available; or
(3) the Issuer has or will become obliged to pay additional
amounts as provided for or referred to in Condition 7 which
would not be required were the Notes represented by this
Global Note in definitive form.
If this Global Note is only exchangeable following the occurrence of an
Exchange Event:
(i) the Issuer will promptly give notice to Noteholders in accordance
with Condition 14 upon the occurrence of an Exchange Event; and
(ii) in the event of the occurrence of any Exchange Event, Euroclear
and/or Clearstream, Luxembourg acting on the instructions of any
holder of an interest in this Global Note may give notice to the
Agent requesting exchange and in the event of the occurrence of an
Exchange Event as described in (3) above, the Issuer may also give
notice to the Agent requesting exchange. Any such exchange shall
occur no later than 15 days after the date of receipt of the relevant
notice by the Agent.
The first notice requesting exchange in accordance with the above provisions
shall give rise to the issue of Definitive Notes for the total amount of Notes
represented by this Global Note.
79
Any such exchange as aforesaid will be made upon presentation of this Global
Note at the office of the Agent specified above by the bearer hereof on any
day (other than a Saturday or Sunday) on which banks are open for business in
London. The aggregate nominal amount of Definitive Notes issued upon an
exchange of this Global Note will be equal to the aggregate nominal amount of
this Global Note.
On an exchange of this Global Note, this Global Note shall be surrendered to
the Agent.
Until the exchange of this Global Note as aforesaid, the bearer hereof shall
in all respects (except as otherwise provided herein) be entitled to the same
benefits as if he were the bearer of Definitive Notes and the relative
Coupons, Receipts and/or Talons (if any) in the forms set out in Part III,
Part IV, Part V and Part VI, respectively, of Schedule 2 to the Agency
Agreement.
In the event that this Global Note (or any part hereof) has become due and
repayable in accordance with the Conditions or that the Maturity Date has
occurred and, in either case, payment in full of the amount due has not been
made to the bearer in accordance with the foregoing then, unless within the
period of fifteen days commencing on the relevant due date payment in full of
the amount due in respect of this Global Note is received by the bearer in
accordance with the foregoing, this Global Note will become void at 8.00 p.m.
(London time) on such fifteenth day and the bearer will have no further rights
under this Global Note (but without prejudice to the rights which the bearer
or any other person may have under the amended and restated Deed of Covenant
executed by the Issuer on 27th March, 2002 in respect of the Euro Medium Term
Notes issued under the Program Agreement pursuant to which this Global Note is
issued).
No rights are conferred on any person under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Global Note, but this does not
affect any right or remedy of any person which exists or is available apart
from that Act.
This Global Note is governed by, and shall be construed in accordance with,
English law.
This Global Note shall not be valid unless authenticated by the Agent.
80
IN WITNESS whereof the Issuer has caused this Global Note to be duly executed
on its behalf.
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
By:
-----------------------------
Authorised Signatory
Authenticated without recourse,
warranty or liability by
JPMORGAN CHASE BANK
By:
------------------------------
Authorised Signatory
81
Schedule One to the Permanent Global Note
PART I
INTEREST PAYMENTS
Date made Total amount of interest Amount of interest paid Confirmation of payment on behalf
payable of the Issuer
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
--------- ------------------------ ----------------------- ---------------------------------
82
PART II
PAYMENT OF INSTALMENT AMOUNTS
Date made Total amount of Amount of Instalment Remaining nominal Confirmation of
Instalment Amounts Amounts paid amount of this Global payment on behalf
payable Note following such of the Issuer
payment*
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
--------- ------------------ ------------------- --------------------- -------------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule Two
in order to determine this amount.
83
PART III
REDEMPTIONS
Date made Total amount of Amount of principal Remaining nominal Confirmation of
principal payable paid amount of this redemption on behalf
Global Note of the Issuer
following such
redemption*
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------- ----------------- -------------------- ----------------- ----------------------
--------------------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule
Two in order to determine this amount.
84
PART IV
PURCHASES AND CANCELLATIONS
Date made Part of nominal amount of Remaining nominal amount of Confirmation of purchase and
this Global Note purchased this Global Note following cancellation on behalf of
and cancelled such purchase and the Issuer
cancellation*
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
--------- -------------------------- ---------------------------- -----------------------------
-------------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule Two in order to determine this amount.
85
Schedule Two to the Permanent Global Note
SCHEDULE OF EXCHANGES
The following exchanges affecting the nominal amount of this Global Note have been made:
Date made Nominal amount of Temporary Nominal amount of this Global Notation made on
Global Note exchanged for this Note following exchange* behalf of the Issuer
Global Note
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
---------- ------------------------------ ----------------------------- ----------------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule Two
in order to determine this amount.
86
PART III
FORM OF DEFINITIVE NOTE
[Face of Note]
-----------------------------------------------------------------------
00 000000 [ISIN] 00 000000
-----------------------------------------------------------------------
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO OR FOR THE BENEFIT
OF U.S. PERSONS OTHER THAN PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. TERMS
USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN REGULATION S UNDER THE
SECURITIES ACT.
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS
NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN
SECTION 6049(B)(4) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES AND THE
REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED
STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(B)(4)
OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).]1
[ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE
UNITED STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]2
[CIBA SPECIALTY CHEMICALS CORPORATION]
(a company incorporated under the laws of the State of
Delaware, U.S.A.)/
CIBA SPECIALTY CHEMICALS PLC
(a company incorporated with limited liability in England)/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
(a company incorporated with limited liability in Germany)/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
(a company incorporated with limited liability in Bermuda)]
1 This legend to appear on Notes issued by Ciba Specialty Chemicals
Corporation with a maturity of 183 days or less.
2 This legend to appear on all Notes with a maturity AG more than 183 days
87
unconditionally and irrevocably guaranteed by
CIBA SPECIALTY CHEMICALS HOLDING INC.
(a company incorporated with limited liability in Switzerland)
[Specified Currency and Nominal Amount of Tranche]
EURO MEDIUM TERM NOTES DUE [Year of Maturity]
This Note is one of a duly authorised issue of Euro Medium Term Notes
denominated in the Specified Currency maturing on the Maturity Date (the
"Notes") of [Ciba Specialty Chemicals Corporation/Ciba Specialty Chemicals
PLC/Ciba Spezialitatenchemie Holding Deutschland GmbH/Ciba Specialty Chemicals
Eurofinance Ltd.] (the "Issuer"). Payments in respect of the Notes have been
unconditionally and irrevocably guaranteed by Ciba Specialty Chemicals Holding
Inc. (the "Guarantor"). References herein to the Conditions shall be to the
Terms and Conditions [endorsed hereon/attached hereto/set out in Schedule 1 to
the Agency Agreement (as defined below) which shall be incorporated by
reference herein and have effect as if set out herein] as modified and
supplemented by the Pricing Supplement (the "Pricing Supplement") (or the
relevant provisions of the Pricing Supplement) endorsed hereon, but in the
event of any conflict between the provisions of the Conditions and the
information in the Pricing Supplement, the Pricing Supplement will prevail.
This Note is issued subject to, and with the benefit of, the Conditions and an
amended and restated Agency Agreement (the "Agency Agreement", which
expression shall be construed as a reference to that agreement as the same may
be amended, supplemented or restated from time to time) dated 27th March, 2002
and made between, inter alia, the Issuer, the Guarantor, JPMorgan Chase Bank
(the "Agent") and the other agents named therein.
For value received, the Issuer, subject to and in accordance with the
Conditions, promises to pay to the bearer hereof [on each Instalment Date and]
on the Maturity Date and/or on such earlier date(s) as this Note may become
due and repayable in accordance with the Conditions, the amount payable under
the Conditions in respect of this Note on each such date and to pay interest
(if any) on this Note calculated and payable as provided in the Conditions
together with any other sums payable under the Conditions.
These Notes shall be governed by, and construed in accordance with, English
law.
This Note shall not be validly issued unless authenticated by the Agent.
88
IN WITNESS whereof the Issuer has caused this Note to be duly executed on its
behalf.
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
By:
-----------------------------
Authorised Signatory
Authenticated without recourse,
warranty or liability by
JPMORGAN CHASE BANK
By:
----------------------------
Authorised Signatory
89
TERMS AND CONDITIONS
[Terms and Conditions to be as set out in
Schedule 1 to the Agency Agreement]
PRICING SUPPLEMENT
[Here to be set out text of Pricing Supplement
relating to the Notes]
90
PART IV
FORM OF COUPON
(Face of Coupon)
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[Specified Currency and Nominal Amount Tranche]
NOTES DUE [Year of Maturity]
Series No. [ ]
PART A
[FOR FIXED RATE NOTES:-
This Coupon is payable to bearer, separately Coupon for
negotiable and subject to the Terms and [ ]
Conditions of the said Notes. due on
[ ]
PART B
[FOR FLOATING RATE NOTES OR INDEXED INTEREST NOTES:-
Coupon for the amount due in accordance with Coupon due
the Terms and Conditions on the said Notes on in [ ]
the Interest Payment Date falling in
[ ]].
This Coupon is payable to bearer, separately
negotiable and subject to such Terms and
Conditions, under which it may become void
before its due date.]
THE NOTE PERTAINING HERETO HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO OR FOR
THE BENEFIT OF U.S. PERSONS OTHER THAN PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED
91
HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS
NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN
SECTION 6049(B)(4) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES AND THE
REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED
STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(B)(4)
OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).]1
[ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE
UNITED STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS
165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]2
________________________________________________________________________
00 000000 [ISIN] 00 000000
________________________________________________________________________
_________________________
1 This legend to appear on Coupons attaching to Notes issued by Ciba
Specialty Chemicals Corporation with a maturity of 183 days or less.
2 This legend to appear on Coupons attaching to Notes issued by Ciba
Specialty Chemicals Corporation with a maturity of 183 days or more
and all other Coupons.
92
(Reverse of Coupon)
AGENT
JPMorgan Chase Bank
Trinity Tower
9 ▇▇▇▇▇▇ ▇▇▇▇ Street
London E1W 1YT
PAYING AGENT
▇.▇. ▇▇▇▇▇▇ Bank Luxembourg S.A.
▇ ▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
and/or such other or further Agent and other or further Paying Agents and/or
specified offices as may from time to time be duly appointed by the Issuer and
the Guarantor and notice of which has been given to the Noteholders.
93
(On the front)
PART V
FORM OF RECEIPT
THE NOTE PERTAINING HERETO HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO OR FOR
THE BENEFIT OF U.S. PERSONS OTHER THAN PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS
NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN
SECTION 6049(B)(4) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES AND THE
REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED
STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(B)(4)
OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).]1
[ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE
UNITED STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]2
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[Specified Currency and Nominal Amount of Tranche]
EURO MEDIUM TERM NOTES DUE [Year of Maturity]
Series No. [ ]
Receipt for the sum of [ ] being the instalment of principal payable in
accordance with the Terms and Conditions endorsed on the Note to which this
Receipt appertains (the "Conditions") on [ ].
___________________________
1 This legend to appear on Receipts pertaining to Notes issued by Ciba
Specialty Chemicals Corporation with a maturity of 183 days or less.
2 This legend to appear on Receipts pertaining to Notes issued by Ciba
Specialty Chemicals Corporation with a maturity of 183 days or more
and on all other Receipts.
94
This Receipt is issued subject to and in accordance with the Conditions which
shall be binding upon the holder of this Receipt (whether or not it is for the
time being attached to such Note) and is payable at the specified office of
the Agent or any of the Paying Agents set out on the reverse of the Note to
which this Receipt appertains (and/or any other or further Paying Agents
and/or specified offices as may from time to time be duly appointed and
notified to the Noteholders).
This Receipt must be presented for payment together with the Note to which it
appertains. The Issuer shall have no obligation in respect of any Receipt
presented without the Note to which it appertains or any unmatured Receipts.
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
By:
------------------------
Authorised Signatory
95
PART VI
FORM OF TALON
THE NOTE PERTAINING HERETO HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO OR FOR
THE BENEFIT OF U.S. PERSONS OTHER THAN PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.
[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS
NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN
SECTION 6049(B)(4) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES AND THE
REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED
STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(B)(4)
OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).]1
[ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE
UNITED STATES) WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER
THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]2
(On the front)
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[Specified Currency and Nominal Amount of Tranche]
EURO MEDIUM TERM NOTES DUE [Year of Maturity]
Series No. [ ]
On and after [ ] further Coupons [and a further Talon] appertaining to the
Note to which this Talon appertains will be issued at the specified office of
the Agent or any of the Paying Agents set out on the reverse hereof (and/or
any other or further Paying Agents and/or specified offices as may from
_______________________________
1 This legend to appear on Talons pertaining to Notes issued by Ciba
Specialty Chemicals Corporation with a maturity of 183 days or less.
2 This legend to appear on Talons pertaining to Notes issued by Ciba
Specialty Chemicals Corporation with a maturity of 183 days and on
all other Talons.
96
time to time be duly appointed and notified to the Noteholders) upon
production and surrender of this Talon.
This Talon may, in certain circumstances, become void under the Terms and
Conditions endorsed on the Notes to which this Talon appertains.
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
By:
------------------------------
Authorised Signatory
97
(Reverse of Receipt and Talon)
AGENT
JPMorgan Chase Bank
Trinity Tower
9 ▇▇▇▇▇▇ ▇▇▇▇ Street
London E1W 1YT
PAYING AGENT
▇.▇. ▇▇▇▇▇▇ Bank Luxembourg S.A.
▇ ▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
and/or such other or further Agent and other or further Paying Agents and/or
specified offices as may from time to time be duly appointed by the Issuer and
the Guarantor and notice of which has been given to the Noteholders.
98
SCHEDULE 3
FORM OF DEED OF GUARANTEE
THIS DEED OF GUARANTEE is made on 27th March, 2002 by CIBA SPECIALTY CHEMICALS
HOLDING INC., (the "Guarantor") in favour of the Relevant Account Holders (as
defined in the Deed of Covenant referred to below) and the holders for the
time being of the Notes (as defined below) and the interest coupons (if any)
appertaining to the Notes ("Coupons"), the Coupons being attached on issue to
Definitive Note(s) (as defined below). Each Relevant Account Holder, each
holder of a Note and each holder of a Coupon is a "Holder".
WHEREAS:
(A) CIBA SPECIALTY CHEMICALS CORPORATION, CIBA SPECIALTY CHEMICALS PLC,
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH, CIBA SPECIALTY
CHEMICALS EUROFINANCE LTD. (the "Issuers" and each an "Issuer") and
the Guarantor have entered into an amended and restated Program
Agreement (the "Program Agreement", which expression includes the
same as it may be amended or supplemented from time to time) dated
27th March, 2002 with the Dealers named therein, which amends and
restates the amended and restated program agreement entered into by,
inter alia, Ciba Specialty Chemicals Corporation, Ciba Specialty
Chemicals PLC and Ciba Spezialitatenchemie Holding Deutschland GmbH
dated 30th March, 2001 (the "Principal Program Agreement"), under
which each Issuer proposes from time to time to issue Euro Medium
Term Notes (the "Notes", such expression to include each Definitive
Note issued by an Issuer and each Global Note issued by an Issuer
(where "Definitive Note" and "Global Note" have the meanings ascribed
thereto in the Agency Agreement defined below) and to include any
receipts issued in respect of Notes repayable in instalments);
(B) each Issuer has executed a Deed of Covenant of even date (the "Deed
of Covenant") relating to Global Notes issued by that Issuer pursuant
to the Program Agreement;
(C) the Issuers and the Guarantor have entered into an amended and
restated agency agreement (the "Agency Agreement", which expression
includes the same as it may be amended or supplemented from time to
time) dated 27th March, 2002 with the Paying Agents named therein;
and
(D) this Deed of Guarantee amends and restates the amended and restated
Deed of Guarantee made by the Guarantor dated 30th March, 2001, and
does not affect any Notes issued pursuant to the Principal Program
Agreement prior to the date hereof.
NOW THIS DEED WITNESSES as follows:
1. Guarantee: The Guarantor irrevocably and unconditionally undertakes
to secure by way of deed poll to each Holder the due and punctual
payment as stipulated in an Issuer's Note or Coupon or under its Deed
of Covenant, as the case may be. The Guarantor therefore undertakes
to pay on first demand of such a Holder, irrespective of the validity
and the legal effects of the above mentioned relationship in respect
of a Note or Coupon or Deed of Covenant and waiving all rights of
objection and defence arising therefrom any amount not
99
paid by the relevant Issuer (including any premium or any other
amounts of whatever nature or additional amounts) upon receipt of the
written request for payment by such Holder and the confirmation in
writing by the Agent that the relevant Issuer has not made such
payments on the dates specified and in the amount called under the
Guarantee. The Guarantor hereby expressly undertakes and secures that
payments under this Guarantee will not be less than as stipulated in
an Issuer's Note or Coupon. In implementation of this undertaking and
in case Swiss withholding taxes are imposed in respect of payments
made under this Guarantee, the Guarantor undertakes, as a separate
and independent obligation, to pay an increased amount on the
relevant Note or Coupon so that the payment received by the
Noteholder or Couponholder shall equal the amount actually stipulated
in such Note or Coupon (assuming no such withholding applies).
2. Guarantor's Obligations Continuing: The Guarantor's obligations under
this Guarantee are and will remain in full force and effect by way of
continuing security until no sum remains payable under any Note, any
Coupon or the Deed of Covenant. Furthermore, these obligations of the
Guarantor are additional to, and not instead of, any security or
other guarantee or indemnity at any time existing in favour of a
Holder, whether from the Guarantor or otherwise. The Guarantor
irrevocably waives all notices and demands whatsoever, except as
provided herein.
3. Repayment to the Issuer: If any payment received by a Holder is, on
the subsequent liquidation or insolvency of the relevant Issuer,
avoided under any laws relating to liquidation or insolvency, such
payment will not be considered as having discharged or diminished the
liability of the Guarantor and this Guarantee will continue to apply
as if such payment had at all times remained owing by the relevant
Issuer.
4. Status of Guarantee: The payment obligations of the Guarantor under
this Guarantee constitute direct, unconditional and (subject to
clause 5 below) unsecured obligations of the Guarantor and (subject
as aforesaid) rank and will rank pari passu with all other
outstanding unsecured and unsubordinated indebtedness and monetary
obligations of the Guarantor, present or future, including those in
respect of deposits (other than obligations preferred by law).
5. Negative Pledge of the Guarantor: So long as any of the Notes remains
outstanding, but not later than the time when payment for the full
amount of principal and interest in respect of all outstanding Notes
has been duly provided for, the Guarantor will procure that no
Indebtedness of the Guarantor which is represented by bonds, notes or
other securities which in any such case are listed or capable of
being listed on any recognised Stock Exchange will be secured upon
any of the present or future assets or revenues of the Guarantor
unless all amounts payable under this Guarantee are secured equally
and rateably with such other security or such other security or
guarantee is granted to the Notes and Coupons as shall have been
approved by an Extraordinary Resolution of the Noteholders. Any
reference to an obligation being guaranteed shall include a reference
to an indemnity being given in respect of payment thereof.
As used herein "Indebtedness" means all indebtedness for money
borrowed that is created, assumed, incurred or guaranteed in any
manner by the Guarantor or for which the Guarantor is otherwise
responsible or liable.
100
6. Tax Gross-up: All payments in respect of the Notes by the
Guarantor shall be made without withholding or deduction for, or on
account of, any present or future taxes, duties, assessments or
governmental charges of whatever nature ("Taxes") imposed or levied
by or on behalf of Switzerland, or any political sub-division of, or
any authority in, or of, Switzerland having power to tax, unless the
withholding or deduction of the Taxes is required by law. In that
event, the Guarantor will pay such additional amounts as may be
necessary in order that the net amounts received by the Noteholders
and Couponholders after the withholding or deduction shall equal the
respective amounts which would have been receivable in respect of the
Notes or, as the case may be, Coupons in the absence of the
withholding or deduction; except that no additional amount shall be
payable in relation to any payment in respect of any Note or Coupon:
(i) by or on behalf of a person liable to such tax, duty or
charge in respect of such Note, Receipt or Coupon by reason
of his having some connection with Switzerland other than
the mere holding or ownership of such Note, Receipt or
Coupon; and/or
(ii) presented for payment to the relevant Issuer more than 30
days after the Relevant Date (as defined in Condition 7(f)
of the Terms and Conditions of the relevant Notes) except to
the extent that a holder would have been entitled to
additional amounts on presenting the same for payment on the
last day of the period of 30 days; and/or
(iii) to, or to a third party on behalf of, a holder who would be
able to avoid such withholding or deduction by making a
declaration of non-residence or similar claim for exemption
but fails to do so; and/or
(iv) where such withholding or deduction is imposed on a payment
to an individual and is required to be made pursuant to any
European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting
of 26th-27th November, 2000, or any law implementing or
complying with, or introduced in order to conform to, such
Directive; and/or
(v) presented for payment by or on behalf of a holder who would
have been able to avoid such withholding or deduction by
presenting the relevant Note or Coupon to another Paying
Agent in a Member State of the EU.
7. Power to execute: The Guarantor hereby warrants, represents and
covenants with each Holder that it has all corporate power, and has
taken all necessary corporate or other steps, to enable it to
execute, deliver and perform this Guarantee, and that this Guarantee
constitutes a legal, valid and binding obligation of the Guarantor,
enforceable in accordance with its terms subject to applicable
bankruptcy, reorganisation, insolvency, fraudulent transfer,
moratorium and other similar laws affecting creditor's rights
generally from time to time in effect, and to general principles of
equity, regardless of whether considered in a proceeding in law or at
equity.
8. Deposit of Guarantee: This Guarantee shall take effect as a Deed Poll
for the benefit of the Holders from time to time and for the time
being. This Guarantee shall be deposited with and held by The Chase
Manhattan Bank for the benefit of the Holders until all the
obligations of the Guarantor hereunder have been discharged in full.
101
9. Production of Guarantee: The Guarantor hereby acknowledges the right
of every Holder to the production of, and the right of every Holder
to obtain (upon payment of a reasonable charge) a copy of, this
Guarantee, and further acknowledges and covenants that the
obligations binding upon it contained herein are owed to, and shall
be for the account of, each and every Holder, and that each Holder
shall be entitled severally to enforce the said obligations against
the Guarantor.
10. Subrogation: Until all amounts which may be payable under the Notes,
the Coupons and/or the Deed of Covenant have been irrevocably paid in
full, the Guarantor shall not exercise any rights of subrogation in
respect of any rights of any Holder or claim in competition with the
Holders against the relevant Issuer.
11. Governing Law and Jurisdiction: This Guarantee is governed by and
shall be construed in accordance with English law. The Guarantor
irrevocably agrees for the benefit of each Holder that the courts of
England are to have jurisdiction to settle any disputes which may
arise out of or in connection with this Guarantee and that
accordingly any suit, action or proceedings arising out of or in
connection with this Guarantee (together referred to as
"Proceedings") may be brought in the courts of England.
The Guarantor irrevocably waives any objection which it may have now
or hereafter to the laying of the venue of the Proceedings in the
courts of England and irrevocably agrees that a final judgment in any
Proceedings brought in the courts of England shall be conclusive and
binding upon the Guarantor and may be enforced in the courts of any
other jurisdiction. Nothing contained in this clause shall limit any
right to take Proceedings against the Guarantor in any other court of
competent jurisdiction, nor shall the taking of Proceedings in none
or more jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
No rights are conferred on any person under the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Global Note, but
this does not affect any right or remedy of any person which exists
or is available apart from that Act.
The Guarantor hereby appoints Ciba Specialty Chemicals PLC as its
agent for service of process in England in respect of any Proceedings
and undertakes that in the event of it ceasing so to act it will
appoint another person as its agent for that purpose.
IN WITNESS whereof this Guarantee has been manually executed as a deed poll on
behalf of the Guarantor.
Executed as a deed )
by CIBA SPECIALTY CHEMICALS )
HOLDING INC. )
acting by )
and )
)
acting under the authority of )
that Company in the presence of: )
102
Witness's
Signature: ...................
Name: ...................
Address: ...................
...................
Dated 27th March, 2002
103
SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
(i) "voting certificate" shall mean an English language
certificate issued by a Paying Agent and dated in which it
is stated:
(a) that on the date thereof Notes (not being Notes in
respect of which a block voting instruction has
been issued and is outstanding in respect of the
meeting specified in such voting certificate and
any adjourned such meeting) bearing specified
serial numbers were deposited with such Paying
Agent or (to the satisfaction of such Paying Agent)
were held to its order or under its control and
that no such Notes will cease to be so deposited or
held until the first to occur of:
(1) the conclusion of the meeting specified in
such certificate or, if applicable, any
adjourned such meeting; and
(2) the surrender of the certificate to the
Paying Agent who issued the same; and
(b) that the bearer thereof is entitled to attend and
vote at such meeting and any adjourned such meeting
in respect of the Notes represented by such
certificate;
(ii) "block voting instruction" shall mean an English language
document issued by a Paying Agent and dated in which:
(a) it is certified that Notes (not being Notes in
respect of which a voting certificate has been
issued and is outstanding in respect of the meeting
specified in such block voting instruction and any
adjourned such meeting) have been deposited with
such Paying Agent or (to the satisfaction of such
Paying Agent) were held to its order or under its
control and that no such Notes will cease to be so
deposited or held until the first to occur of:
(1) the conclusion of the meeting specified in
such document or, if applicable, any
adjourned such meeting; and
(2) the surrender to the Paying Agent not less
than 48 hours before the time for which
such meeting or any adjourned such meeting
is convened of the receipt issued by such
Paying Agent in respect of each such
deposited Note which is to be released or
(as the case may require) the Note or
Notes ceasing with the agreement of the
Paying Agent to be held to its order or
under its control and the giving of notice
by the Paying Agent to the Issuer in
accordance with
104
paragraph 17 hereof of the
necessary amendment to the block voting
instruction;
(b) it is certified that each holder of such Notes has
instructed such Paying Agent that the vote(s)
attributable to the Note or Notes so deposited or
held should be cast in a particular way in relation
to the resolution or resolutions to be put to such
meeting or any adjourned such meeting and that all
such instructions are during the period commencing
48 hours prior to the time for which such meeting
or any adjourned such meeting is convened and
ending at the conclusion or adjournment thereof
neither revocable nor capable of amendment;
(c) the total number and the serial numbers of the
Notes so deposited or held are listed
distinguishing with regard to each such resolution
between those in respect of which instructions have
been given as aforesaid that the votes attributable
thereto should be cast in favour of the resolution
and those in respect of which instructions have
been so given that the votes attributable thereto
should be cast against the resolution; and
(d) one or more persons named in such document (each
hereinafter called a "proxy") is or are authorised
and instructed by such Paying Agent to cast the
votes attributable to the Notes so listed in
accordance with the instructions referred to in
paragraph (c) above as set out in such document.
The holder of any voting certificate or the proxies named in
any block voting instruction shall for all purposes in
connection with the relevant meeting or adjourned meeting of
Noteholders be deemed to be the holder of the Notes to which
such voting certificate or block voting instruction relates
and the Paying Agent with which such Notes have been
deposited or the person holding the same to the order or
under the control of such Paying Agent shall be deemed for
such purposes not to be the holder of those Notes.
(iii) References herein to the "Notes" are to the Notes in respect
of which the relevant meeting is convened.
2. The relevant Issuer or the Guarantor may at any time and, upon a
requisition in writing of Noteholders holding not less than five per
cent. in nominal amount of the Notes for the time being outstanding,
shall convene a meeting of the Noteholders and if the relevant Issuer
makes default for a period of seven days in convening such a meeting
the same may be convened by the requisitionists. Whenever the
relevant Issuer or the Guarantor is about to convene any such meeting
it shall forthwith give notice in writing to the Agent and the
Dealers of the day, time and place thereof and of the nature of the
business to be transacted thereat. Every such meeting shall be held
at such time and place as the Agent may approve.
3. At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) specifying the place,
day and hour of meeting shall be given to the Noteholders prior to
any meeting of the Noteholders in the manner provided by Condition
14. Such notice shall state generally the nature of the business to
be transacted at the meeting thereby convened but (except for an
Extraordinary Resolution) it shall not be necessary to
105
specify in such notice the terms of any resolution to be proposed.
Such notice shall include a statement to the effect that Notes may be
deposited with Paying Agents for the purpose of obtaining voting
certificates or appointing proxies not less than 24 hours before the
time fixed for the meeting or that, in the case of corporations, they
may appoint representatives by resolution of their directors or other
governing body. A copy of the notice shall be sent by post to the
Issuer (unless the meeting is convened by the relevant Issuer) and to
the Guarantor (unless the meeting is convened by the Guarantor).
4. Some person (who may but need not be a Noteholder) nominated in
writing by the relevant Issuer shall be entitled to take the chair at
every such meeting but if no such nomination is made or if at any
meeting the person nominated shall not be present within fifteen
minutes after the time appointed for holding the meeting the
Noteholders present shall choose one of their number to be Chairman.
5. At any such meeting one or more persons present holding Notes or
voting certificates or being proxies and holding or representing in
the aggregate not less than twenty per cent. in nominal amount of the
Notes for the time being outstanding shall (except for the purpose of
passing an Extraordinary Resolution (as defined in paragraph 20
below)) form a quorum for the transaction of business and no business
(other than the choosing of a Chairman) shall be transacted at any
meeting unless the requisite quorum be present at the commencement of
business. The quorum at any such meeting for passing an Extraordinary
Resolution shall (subject as provided below) be one or more persons
present holding Notes or voting certificates or being proxies and
holding or representing in the aggregate not less than 50 per cent.
in nominal amount of the Notes for the time being outstanding
PROVIDED THAT at any meeting the business of which includes any of
the following matters (each of which shall only be capable of being
effected after having been approved by Extraordinary Resolution)
namely:
(i) modification of the Maturity Date of the Notes or reduction
or cancellation of the nominal amount payable upon maturity;
or
(ii) reduction or cancellation of the amount payable or
modification of the payment date in respect of any interest
in respect of the Notes or variation of the method of
calculating the rate of interest in respect of the Notes; or
(iii) reduction of any Minimum Interest Rate and/or Maximum
Interest Rate specified in the applicable Pricing Supplement
of any Note; or
(iv) modification of the currency in which payments under the
Notes and/or the Receipts and/or Coupons appertaining
thereto are to be made; or
(v) modification of the majority required to pass an
Extraordinary Resolution; or
(vi) the sanctioning of any such scheme or proposal as is
described in paragraph 18(F) below; or
(vii) alteration of this proviso or the proviso to paragraph 6
below;
106
the quorum shall be one or more persons present holding Notes or
voting certificates or being proxies and holding or representing in
the aggregate not less than 75 per cent. in nominal amount of the
Notes for the time being outstanding. An Extraordinary Resolution
passed at any meeting of the holders of Notes will be binding on all
holders of Notes, whether or not they are present at the meeting, and
on all holders of Coupons appertaining to such Notes.
6. If within fifteen minutes after the time appointed for any such
meeting a quorum is not present the meeting shall if convened upon
the requisition of Noteholders be dissolved. In any other case it
shall stand adjourned to the same day in the next week (or if such
day is a public holiday the next succeeding business day) at the same
time and place (except in the case of a meeting at which an
Extraordinary Resolution is to be proposed in which case it shall
stand adjourned for such period being not less than 14 days nor more
than 42 days, and at such place as may be appointed by the Chairman
and approved by the Agent) and at such adjourned meeting one or more
persons present holding Notes or voting certificates or being proxies
(whatever the nominal amount of the Notes so held or represented by
them) shall (subject as provided below) form a quorum and shall
(subject as provided below) have power to pass any Extraordinary
Resolution or other resolution and to decide upon all matters which
could properly have been dealt with at the meeting from which the
adjournment took place had the requisite quorum been present PROVIDED
THAT at any adjourned meeting the business of which includes any of
the matters specified in the proviso to paragraph 5 above the quorum
shall be one or more persons present holding Notes or voting
certificates or being proxies and holding or representing in the
aggregate not less than a clear majority in nominal amount of the
Notes for the time being outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution
is to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall (except in cases where the proviso to
paragraph 6 above shall apply when it shall state the relevant
quorum) state that one or more persons present holding Notes or
voting certificates or being proxies at the adjourned meeting
whatever the nominal amount of the Notes held or represented by them
will form a quorum. Subject as aforesaid it shall not be necessary to
give any notice of an adjourned meeting.
8. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the
Chairman shall both on a show of hands and on a poll have a casting
vote in addition to the vote or votes (if any) to which he may be
entitled as a Noteholder or as a holder of a voting certificate or as
a proxy.
9. At any meeting, unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman or the relevant
Issuer or by one or more persons present holding Notes or voting
certificates or being proxies (whatever the nominal amount of the
Notes so held by them), a declaration by the Chairman that a
resolution has been carried or carried by a particular majority or
lost or not carried by a particular majority shall be conclusive
evidence of the fact without proof of the number or proportion of the
votes recorded in favour of or against such resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so
demanded it shall be taken in such manner and subject as hereinafter
provided either at once or after an adjournment as the Chairman
directs and the result of such poll shall be deemed to be the
resolution of the meeting at which the poll was demanded as at the
date of the taking of the poll. The demand
107
for a poll shall not prevent the continuance of the meeting for the
transaction of any business other than the motion on which the poll
has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any
such meeting adjourn the same from time to time and from place to
place but no business shall be transacted at any adjourned meeting
except business which might lawfully (but for lack of required
quorum) have been transacted at the meeting from which the
adjournment took place.
12. Any poll demanded at any such meeting on the election of a Chairman
or on any question of adjournment shall be taken at the meeting
without adjournment.
13. Any director or officer of the Issuer or the Guarantor and their
respective lawyers may attend and speak at any meeting. Save as
aforesaid, but without prejudice to the proviso to the definition of
"outstanding" in clause 1(2) of this Agreement, no person shall be
entitled to attend and speak nor shall any person be entitled to vote
at any meeting of the Noteholders or join with others in
requisitioning the convening of such a meeting unless he either
produces the Note or Notes of which he is the holder or a voting
certificate or is a proxy. None of the Issuers, the Guarantor nor any
of their respective subsidiaries shall be entitled to vote at any
meeting in respect of Notes held by it for the benefit of any such
company and no other person shall be entitled to vote at any meeting
in respect of Notes held by it for the benefit of any such company.
Nothing herein contained shall prevent any of the proxies named in
any block voting instruction from being a director, officer or
representative of or otherwise connected with the Issuer or the
Guarantor.
14. Subject as provided in paragraph 13 hereof at any meeting:
(A) on a show of hands every person who is present in person and
produces a Note or voting certificate or is a proxy shall
have one vote; and
(B) on a poll every person who is so present shall have one vote
in respect of:
(i) in the case of a meeting of the holders of Notes
all of which are denominated in a single currency,
each minimum integral amount of such currency; and
(ii) in the case of a meeting of the holders of Notes
denominated in more than one currency, each
U.S.$1.00 or, in the case of a Note denominated in
a currency other than U.S. dollars, the equivalent
of U.S.$1.00 in such currency at the Agent's spot
buying rate for the relevant currency against U.S.
dollars at or about 11.00 a.m. (London time) on the
date of publication of the notice of the relevant
meeting (or of the original meeting of which such
meeting is an adjournment),
or such other amount as the Agent shall in its absolute
discretion stipulate in nominal amount of Notes so produced
or represented by the voting certificate so produced or in
respect of which he is a proxy.
Without prejudice to the obligations of the proxies named in any
block voting instruction any person entitled to more than one vote
need not use all his votes or cast all the votes to which he is
entitled in the same way.
108
15. The proxies named in any block voting instruction need not be
Noteholders.
16. Each block voting instruction together (if so requested by the
relevant Issuer) with proof satisfactory to the relevant Issuer of
its due execution on behalf of the relevant Paying Agent shall be
deposited at such place as the Agent shall approve not less than 24
hours before the time appointed for holding the meeting or adjourned
meeting at which the proxies named in the block voting instruction
propose to vote and in default the block voting instruction shall not
be treated as valid unless the Chairman of the meeting decides
otherwise before such meeting or adjourned meeting proceeds to
business. A certified copy of each block voting instruction shall be
deposited with the Agent before the commencement of the meeting or
adjourned meeting but the Agent shall not thereby be obliged to
investigate or be concerned with the validity of or the authority of
the proxies named in any such block voting instruction.
17. Any vote given in accordance with the terms of a block voting
instruction shall be valid notwithstanding the previous revocation or
amendment of the block voting instruction or of any of the
Noteholders' instructions pursuant to which it was executed PROVIDED
THAT no intimation in writing of such revocation or amendment shall
have been received from the relevant Paying Agent by the relevant
Issuer at its registered office (or such other place as may have been
approved by the Agent for the purpose) by the time being 24 hours
before the time appointed for holding the meeting or adjourned
meeting at which the block voting instruction is to be used.
18. A meeting of the Noteholders shall in addition to the powers
hereinbefore given have the following powers exercisable by
Extraordinary Resolution (subject to the provisions relating to
quorum contained in paragraphs 5 and 6 above) only, namely:
(A) power to sanction any compromise or arrangement proposed to
be made between the Issuer and the Guarantor and the
Noteholders and Couponholders or any of them;
(B) power to sanction any abrogation, modification, compromise
or arrangement in respect of the rights of the Noteholders
and Couponholders against the relevant Issuer and the
Guarantor or against any of its property whether such rights
shall arise under this Agreement, the Notes or the Coupons
or otherwise;
(C) power to assent to any modification of the provisions
contained in this Agreement or the Conditions, the Notes,
the Coupons, the Guarantee or the Deed of Covenant which
shall be proposed by the Issuer or the Guarantor;
(D) power to give any authority or sanction which under the
provisions of this Agreement or the Notes is required to be
given by Extraordinary Resolution;
(E) power to appoint any persons (whether Noteholders or not) as
a committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees
any powers or discretions which the Noteholders could
themselves exercise by Extraordinary Resolution;
(F) power to sanction any scheme or proposal for the exchange or
sale of the Notes for, or the conversion of the Notes into
or the cancellation of the Notes in consideration
109
of, shares, stock, notes, bonds, debentures, debenture stock
and/or other obligations and/or securities of the Issuer or
any other company formed or to be formed, or for or into or
in consideration of cash, or partly for or into or in
consideration of such shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or
securities as aforesaid and partly for or into or in
consideration of cash; and
(G) power to approve the substitution of any entity in place of
(i) the Issuer (or any previous substitute) as the principal
debtor in respect of the Notes and the Coupons or (ii) the
Guarantor (or any previous substitute) as guarantor under
the Guarantee.
19. Any resolution passed at a meeting of the Noteholders duly convened
and held in accordance with the provision hereof shall be binding
upon all the Noteholders whether present or not present at such
meeting and whether or not voting and upon all Couponholders and
Receiptholders and each of them shall be bound to give effect thereto
accordingly and the passing of any such resolution shall be
conclusive evidence that the circumstances justify the passing
thereof. Notice of the result of the voting on any resolution duly
considered by the Noteholders shall be published in accordance with
Condition 14 by the relevant Issuer within 14 days of such result
being known PROVIDED THAT the non-publication of such notice shall
not invalidate such resolution.
20. The expression "Extraordinary Resolution" when used in this Agreement
or the Conditions means a resolution passed at a meeting of the
Noteholders duly convened and held in accordance with the provisions
herein contained by a majority consisting of not less than 75 per
cent. of the persons voting thereat upon a show of hands or if a poll
be duly demanded then by a majority consisting of not less than 75
per cent. of the votes given on such poll.
21. Minutes of all resolutions and proceedings at every such meeting as
aforesaid shall be made and duly entered in books to be from time to
time provided for that purpose by the relevant Issuer and any such
Minutes as aforesaid if purporting to be signed by the Chairman of
the meeting at which such resolutions were passed or proceedings had
shall be conclusive evidence of the matters therein contained and
until the contrary is proved every such meeting in respect of the
proceedings of which Minutes have been made shall be deemed to have
been duly held and convened and all resolutions passed or proceedings
had thereat to have been duly passed or had.
22. Subject to all other provisions contained herein the Agent may
without the consent of the relevant Issuer, the Guarantor, the
Noteholders or the Couponholders prescribe such further regulations
regarding the requisitioning and/or the holding of meetings of
Noteholders and attendance and voting thereat as the Agent may in its
sole discretion think fit.
110
SCHEDULE 5
FORM OF PUT NOTICE
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[title of relevant Series of Notes]
By depositing this duly completed Notice with any Paying Agent for the above
Series of Notes (the "Notes") the undersigned holder of such Notes surrendered
with this Notice and referred to below irrevocably exercises its option to
have such Notes redeemed in accordance with Condition 6(e) on [redemption
date].
This Notice relates to Notes in the aggregate nominal amount of _______
bearing the following serial numbers:
______________________________________________
______________________________________________
______________________________________________
If the Notes referred to above are to be returned (1) to the undersigned under
clause 10(4) of the Agency Agreement, they should be returned by post to the
following address outside the United States:
______________________________
______________________________
______________________________
PAYMENT INSTRUCTIONS
Please make payment in respect of the above-mentioned Notes by [cheque posted
to the above address/transfer to the following bank account] (2):
Bank: _________________________________
Branch Address outside
the United States: _________________________________
Branch Code: _________________________________
Account Number: _________________________________
Signature of holder: _________________________________
111
Duly authorised on behalf of
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[To be completed by recipient Paying Agent]
Details of missing unmatured Coupons ______________________________(3)
Received by: ______________________________
[Signature and stamp of Paying Agent]
At its office at: _______________________________
On: _______________________________
NOTES
(1) The Agency Agreement provides that Notes so returned will be sent by
post, uninsured and at the risk of the Noteholder, unless the
Noteholder otherwise requests and pays the costs of such insurance to
the relevant Paying Agent at the time of depositing the Note referred
to above.
(2) Delete as applicable.
(3) Only relevant for Fixed Rate Notes (which are not also Indexed
Redemption Amount Notes) in definitive form.
N.B. The Paying Agent with whom the above-mentioned Notes are deposited
will not in any circumstances be liable to the depositing Noteholder
or any other person for any loss or damage arising from any act,
default or omission of such Paying Agent in relation to the said
Notes or any of them unless such loss or damage was caused by the
fraud or gross negligence of such Paying Agent or its directors,
officers or employees.
This Put Notice is not valid unless all of the paragraphs requiring
completion are duly completed. Once validly given this Put Notice is
irrevocable except in the circumstances set out in clause 10(4) of
the Agency Agreement.
112
SCHEDULE 6
Dated 27th March, 2002
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
as Issuers
- and -
CIBA SPECIALTY CHEMICALS HOLDING INC.
as Guarantor
----------------------------------
OPERATING & ADMINISTRATIVE
PROCEDURES MEMORANDUM
in respect of a
U.S.$2,000,000,000
EURO MEDIUM TERM NOTE PROGRAM
(Amended and Restated)
-----------------------------------
[▇▇▇▇▇ & ▇▇▇▇▇ LOGO]
London
113
The aggregate nominal amount of all Notes outstanding at any time will not,
subject as provided below, exceed U.S.$2,000,000,000 or its equivalent in
other currencies at the time of agreement to issue, subject to increase as
provided in the Program Agreement. The Program Agreement provides for the
increase in the nominal amount of Notes that may be issued under the Program.
In that event, this Procedures Memorandum shall apply to the Program as
increased.
The documentation of the Program provides for the issue of Notes denominated
in any currency or currencies as may be agreed between the relevant Issuer,
the Guarantor and the relevant Dealer (subject to certain restrictions as to
minimum and/or maximum maturities as set out in the Offering Circular
describing the Program) and being any of:
o Fixed Rate Notes
o Floating Rate Notes
o Zero Coupon Notes
o Dual Currency Notes
o Indexed Interest Notes
o Indexed Redemption Amount Notes
o Instalment Notes
o Partly Paid Notes
o other forms of Notes agreed between the relevant Dealer or
Lead Manager, the relevant Issuer and the Guarantor
All terms with initial capitals used herein without definition shall have the
meanings given to them in the Offering Circular dated 27th March, 2002 (the
"Offering Circular" as supplemented), or, as the case may be, the amended and
restated Program Agreement dated 27th March, 2002 (the "Program Agreement" as
amended, supplemented or restated) between the Issuers, the Guarantor and the
Dealers named therein pursuant to which the Issuer may issue Euro Medium Term
Notes.
OPERATING PROCEDURES
Dealers must confirm all trades directly with the Issuer, the Guarantor and
the Agent.
A. RESPONSIBILITIES OF THE AGENT
The Agent will, in addition to the responsibilities in relation to
settlement described in Annexe A, be responsible for the following:
(i) in the case of Notes which are to be listed on a Stock
Exchange, distributing, or procuring the distribution, to
the Stock Exchange and any other relevant authority such
number of copies of the Pricing Supplement required by the
Stock Exchange and such other relevant authority;
(ii) in the case of Notes which are to be listed on a Stock
Exchange, immediately notifying the relevant Issuer and the
relevant Dealer if at any time the Agent is notified by the
Listing Agent or the Stock Exchange that the listing of a
Tranche of Notes has been refused or otherwise will not take
place; and
(iii) determining the end of the Distribution Compliance Period in
respect of a Tranche in accordance with clause 4 of the
Agency Agreement. The Agent shall upon
114
determining the end of the Distribution Compliance Period in
respect of any Tranche notify the relevant Issuer, the
Guarantor, Euroclear, Clearstream, Luxembourg and the
relevant Dealer or Lead Manager, as the case may be.
B. RESPONSIBILITIES OF DEALER/LEAD MANAGER
(i) Each Dealer/Lead Manager will be responsible for preparing
and agreeing with the relevant Issuer and the Guarantor a
Pricing Supplement (substantially in the form of Annexe C
hereto) giving details of each Tranche of Notes to be
issued.
(ii) In the case of an issue not to be subscribed pursuant to a
Subscription Agreement, each Dealer which agrees to purchase
Notes from the relevant Issuer will be responsible for
notifying the Agent upon completion of the distribution of
the Notes of each Tranche purchased by that Dealer. In the
case of an issue of Notes to be subscribed pursuant to a
Subscription Agreement, the Lead Manager will be responsible
for notifying the Agent upon completion of the distribution
of the Notes of such issue.
C. SETTLEMENT
The settlement procedures set out in Annexe A shall apply to each
issue of Notes (Part 1 in the case of issues not to be subscribed
pursuant to a Subscription Agreement, Part 2 in the case of issues to
be subscribed pursuant to a Subscription Agreement), unless otherwise
agreed between the relevant Issuer, the Guarantor, the Agent and the
relevant Dealer or the Lead Manager, as the case may be. With issues
of Notes to be listed on a Stock Exchange other than the Luxembourg
Stock Exchange more time may be required to comply with the relevant
Stock Exchange's listing requirements and with issues of Dual
Currency or Indexed Notes more time may be required to settle
documentation.
A Trading Desk and Administrative Contact List is set out in Annexe D.
N.B.: ALL COMMUNICATIONS WITH ANY ISSUER MUST BE COPIED TO THE
GUARANTOR.
115
ANNEXE A
PART 1
SETTLEMENT PROCEDURES FOR ISSUES NOT TO BE SUBSCRIBED PURSUANT TO A
SUBSCRIPTION AGREEMENT
References below to the "Issuer" is to the "relevant Issuer".
Day Latest Action
London time
No later 2.00 p.m. The Issuer and the Guarantor may agree terms with
than Issue one or more of the Dealers for the issue and
Date minus 5 purchase of Notes (whether pursuant to an
unsolicited bid from a Dealer or pursuant to an
enquiry by the Issuer). The Dealer instructs the
Agent to obtain a common code and ISIN from
Euroclear or Clearstream, Luxembourg. In the case
of the first Tranche of Notes of a Series, the
Agent telephones Euroclear or Clearstream,
Luxembourg with a request for a common code and
ISIN for such Series and in the case of a
subsequent Tranche of Notes of that Series the
Agent telephones Euroclear or Clearstream,
Luxembourg with a request for a temporary common
code and ISIN for such Tranche. Each common code
and ISIN is notified by the Agent to the Issuer and
each Dealer which has reached agreement with the
Issuer.
3.00 p.m. If a Dealer has reached agreement with the Issuer and
the Guarantor by telephone, such Dealer confirms the
terms of the agreement to the Issuer and the
Guarantor by fax (substantially in the form set out
in Annexe B) attaching a copy of the Pricing Supplement
(substantially in the form set out in Annexe C). The
Dealer sends a copy of that fax to the Agent for
information.
5.00 p.m. The Issuer and the Guarantor confirm their agreement
to the terms on which the issue of Notes is to be made
(including the form of the Pricing Supplement) by each
signing and returning a copy of the Pricing Supplement
to the relevant Dealer. The Issuer also confirms its
instructions to the Agent (including, in the case of
Floating Rate Notes, for the purposes of rate fixing)
to carry out the duties to be carried out by the Agent
under these Settlement Procedures and the Agency
Agreement including preparing, authenticating and
116
issuing a Temporary Global Note for the Tranche of Notes
which is to be purchased and in the case of the first
Tranche of a Series, where the Pricing Supplement for such
Tranche does not specify that such Temporary Global Note is
to be exchangeable only for Notes in definitive form, a
Permanent Global Note for such Series, giving details of such
Notes. The Issuer confirms such instructions by sending a copy
by fax of the signed Pricing Supplement to the Agent. The
details set out in the signed Pricing Supplement shall
be conclusive evidence of the agreement (save in the
case of manifest error) and shall be binding on the
parties accordingly.
No later than In the case of Notes which are to be listed on a
Issue Date Stock Exchange, the Agent also notifies, or the
minus 3 notification to, the relevant Stock Exchange and
any other relevant authority by fax or by hand of
the details of the Notes to be issued by sending the
Pricing Supplement to the relevant Stock Exchange
and any other relevant authority.
Issue Date 3.00 p.m. The relevant Dealer instructs Euroclear and/or
minus ▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ to debit its account and
Clearstream, pay the purchase price, against
delivery of the Notes, to the Agent's account with
Euroclear and/or Clearstream, Luxembourg on the Issue
Date and the Agent receives details of such
instructions through the records of Euroclear
and/or Clearstream, Luxembourg.
In the case of Floating Rate Notes, the Agent
notifies Euroclear, Clearstream, Luxembourg,
the Issuer, the Guarantor (if applicable) the
relevant Stock Exchange and the relevant Dealer by
telex or fax of the Rate of Interest for the first
Interest Period (if already determined). Where
the Rate of Interest has not yet been determined,
this will be notified in accordance with this
paragraph as soon as it has been determined.
Issue Date minus 1 3.00 p.m. The Agent prepares and authenticates a Temporary Global
Note for each Tranche of Notes which is to be purchased
and, where required as specified above, a Permanent Global
Note in respect of the relevant Series. The conditions
precedent in the Program agreement are satisfied and/or
waived. The Temporary Global Note and any such Permanent
Global Note are then delivered by the Agent
117
to a common depositary for Euroclear and Clearstream, Luxembourg
and instructions are given by the Agent to Euroclear or, as
the case may be, Clearstream, Luxembourg to credit the
Notes represented by such Temporary Global Note to the
Agent's distribution account. The Agent further instructs
Euroclear or, as the case may be, Clearstream,
Luxembourg to debit from the distribution account the
nominal amount of the relevant Tranche of Notes and to
credit such nominal amount to the account of such Dealer
with Euroclear or Clearstream, Luxembourg against payment
to the account of the Agent of the purchase price for the
relevant Tranche of Notes for value on the Issue Date.
The relevant Dealer gives corresponding instructions to
Euroclear or Clearstream, Luxembourg. The parties (which
for this purpose shall include the Agent) may agree to
arrange for "free delivery" to be made through the
relevant clearing system if specified in the applicable
Pricing Supplement, in which case these Settlement
Procedures will be amended accordingly.
Issue Date Euroclear and Clearstream, Luxembourg debit and credit
accounts in accordance with instructions received by
them.
The Agent pays to the Issuer for value on the Issue Date
the aggregate purchase moneys received by it to such
account of the Issuer as shall have been notified to the
Agent for the purpose.
On or subsequent The Agent notifies the Issuer and Guarantor forthwith in
to the Issue Date the event that a Dealer does not pay the purchase price due
from it in respect of a Note.
The Agent notifies the Issuer of the issue of Notes giving
details of the Global Note(s) and the nominal amount
represented thereby.
The Agent confirms the issue of Notes to the relevant Stock
Exchange and any other relevant authority.
The relevant Dealer promptly notifies the Agent that the
distribution of the Notes purchased by it has been
completed. The Agent promptly notifies the Issuer, the
Guarantor, the relevant Dealers, Euroclear and
Clearstream, Luxembourg of the date of the end of the
Distribution Compliance Period with respect to the
relevant Tranche of Notes.
118
ANNEXE A
PART 2
SETTLEMENT PROCEDURES FOR ISSUES SUBSCRIBED PURSUANT TO A SUBSCRIPTION AGREEMENT
References below to the "Issuer" is to the "relevant Issuer".
Day Latest time Action
No later than The Issuer and the Guarantor may, subject to
Issue Date the execution of the Subscription Agreement
minus 10 (or referred to below, agree terms with a Dealer
such other number (which expression in this Part 2 includes any
of days agreed entity to be appointed as a dealer under the
between the Subscription Agreement referred to below) (the
Issuer, the Guarantor, the "Lead Manager") for the issue and purchase of
Lead Manager and the Agent) Notes to be subscribed pursuant to a Subscription
Agreement (whether pursuant to an unsolicited bid by
such Lead Manager or pursuant to an enquiry by the
Issuer). The Lead Manager may invite other Dealers
(new or additional) approved by the Issuer
and the Guarantor to join an underwriting syndicate
either on the basis of an invitation telex agreed
between the Issuer, the Guarantor and the Lead
Manager or on the terms of the Pricing Supplement
referred to below and the Subscription Agreement.
The Lead Manager and any such Dealers are together
referred to as the "Managers".
The Lead Manager instructs the Agent to obtain a
common code and ISIN from Euroclear or Clearstream,
Luxembourg. In the case of the first Tranche of Notes
of a Series, the Agent telephones Euroclear or
Clearstream, Luxembourg with a request for a
common code and ISIN for such Series and in the
case of a subsequent Tranche of Notes of that
Series the Agent telephones Euroclear or
Clearstream, Luxembourg with a request for a
temporary common code and ISIN for such Tranche.
Each Common Code and ISIN is notified by the Agent
to the Issuer and the Lead Manager.
119
Day Latest time Action
The Issuer, the Guarantor and the Lead Manager
agree a form of Pricing Supplement prepared by or
on behalf of the Lead Manager (in substantially
the form of Annexe C) which is submitted to the
lawyers rendering a legal opinion in connection with
the relevant issue for approval. A draft
Subscription Agreement (in substantially the form of
Appendix E to the Program Agreement or such other
form as may be agreed between the Issuer, the
Guarantor and the Lead Manager) is also prepared.
The Subscription Agreement may, if so agreed, be
called by another name. The Lead Manager sends a
copy of the draft Subscription Agreement to
any other Manager at least two full days (as defined
in the Explanatory Notes to this Annexe A) before
the Subscription Agreement is intended to be signed.
At the same time the Lead Manager sends a copy of
the Offering Circular and Program Agreement
(together with such other items from the Initial
Documentation List as the Lead Manager deems
appropriate) to any other Manager which has not
previously received such documents. The
Subscription Agreement and Pricing Supplement are
agreed and executed and a copy of the Pricing
Supplement is sent by fax to the Agent which shall
act as the Agent's authorisation (including,
in the case of Floating Rate Notes, for the
purposes of rate fixing) to carry out the duties to
be carried out by it under these Settlement
Procedures and the Agency Agreement including
preparing, authenticating and issuing a Temporary
Global Note for the Tranche of Notes which is
to be purchased and in the case of the first Tranche
of a Series, where the Pricing Supplement does
not specify that such Temporary Global Note is
to be exchangeable only for Notes in definitive
form, a Permanent Global Note for such Series,
giving details of such Notes.
No later than In the case of Notes to be listed on a Stock Exchange,
Issue Date the Agent notifies or procure the notification to, the
minus 3 relevant Stock Exchange by fax or by hand of the details
of the Notes to be issued by sending the Pricing
Supplement to the relevant Stock Exchange and any
other relevant authority.
120
Day Latest time Action
No later than The Lead Manager instructs Euroclear and/or Clearstream,
Issue Date Luxembourg to debit its account and pay the purchase price,
minus 2 against delivery of the Notes as instructed by the
Lead Manager to the account specified by the Issuer.
Day Latest time Action
Issue Date 3.00 p.m. In the case of Floating Rate Notes, the Agent
minus 2 notifies Euroclear, Clearstream, Luxembourg, the
Issuer, the Guarantor, the relevant Stock Exchange
(if applicable) and the Lead Manager by telex
or fax of the Rate of Interest for the first
Interest Period (if already determined).
Where the Rate of Interest has not yet been
determined, this will be notified in accordance
with this paragraph as soon as it has been
determined.
Issue Date agreed time The Agent prepares and authenticates a Temporary
minus 1 (in the Global Note for each Tranche of Notes which is
case of pre-closed to be purchased, and where required as specified
issues) or Issue above, a Permanent Global Note in respect of the
Date (in any other relevant Series. The conditions precedent in the
case) (the "Payment Subscription Agreement and the Program Agreement are
Instruction Date") satisfied and/or waived. The Temporary Global Note
and any such Permanent Global Note are then
delivered by the Agent to a common depositary for
Euroclear and Clearstream, Luxembourg and
instructions are given by the Agent (on behalf of
the Issuer) to the common depositary to hold the
Notes represented by such Temporary Global Note to
the Issuer's order.
The Lead Manager instructs the common depositary to
request Euroclear and/or Clearstream, Luxembourg to
credit such nominal amount of the relevant Tranche of
Notes to the accounts of the persons entitled
thereto with Euroclear or Clearstream, Luxembourg
against payment to the specified account of the
Issuer of the purchase price for the relevant
Tranche of Notes for value on the Issue Date. The
common depositary issues a payment confirmation in
respect of this payment.
Issue Date Payment is effected and Euroclear and/or Clearstream,
Luxembourg debit and credit accounts in accordance with
instructions received by them.
The Agent notifies the Issuer of the issue of
Notes giving details of the Global Note(s) and the
nominal amount represented thereby.
121
Day Latest time Action
The Agent confirms the issue of Notes to the
relevant Stock Exchange and any other relevant
authority.
On or subsequent to the Each other Manager (if any) promptly notifies the Lead
Issue Date Manager when the distribution of the Notes purchased
by it has been completed. The Lead Manager promptly
notifies the Agent upon completion of the
distribution of the Notes of the relevant
Tranche. The Agent promptly notifies the Issuer,
the Guarantor, the Lead Manager, Euroclear and
Clearstream, Luxembourg of the date of the end
of the Distribution Compliance Period with respect
to the relevant Tranche of Notes.
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Explanatory Notes to Annexe A
(a) Each "day" is a day on which banks and foreign exchange markets are
open for business in London, counted in reverse order from the
proposed Issue Date.
(b) The Issue Date must be a Business Day. For the purposes of this
Memorandum, "Business Day" means a day which is both:
(i) a day on which commercial banks and foreign exchange markets
settle payments in London and any other place as is specified
in the applicable Pricing Supplement (each an "Additional
Business Centre"); and
(ii) either (1) in relation to Notes denominated or payable in a
Specified Currency other than euro, a day on which commercial
banks and foreign exchange markets settle payments in the
principal financial centre of the country of the relevant
Specified Currency (if other than London or any Additional
Business Centre) and which, if the Specified Currency is New
Zealand Dollars, shall be Auckland) or (2) in relation to Notes
denominated or payable in euro, a day on which the TARGET
System is open. "TARGET System" means the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET)
System. Unless otherwise provided in the applicable Pricing
Supplement, the principal financial centre for any currency
shall be as provided in the 2000 ISDA Definitions, each as
amended and updated as at the Issue Date of the first Tranche
of Notes of the relevant Series and published by the
International Swaps and Derivatives Association, Inc.
(c) Times given are the approximate times for the taking of the action
in question and are references to London time.
123
ANNEXE B
FORM OF DEALER'S CONFIRMATION
FOR ISSUES WITH NO SUBSCRIPTION AGREEMENT
[Date]
To: [CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
and: CIBA SPECIALTY CHEMICALS HOLDING INC.
c.c. JPMorgan Chase Bank
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH/
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[Title of relevant Tranche of Notes (specifying type of Notes)]
issued pursuant to the U.S.$2,000,000,000 Euro Medium Term Note Program
-----------------------------------------------------------------------
We hereby confirm the agreement for the issue to us of [describe issue] Notes
due [ ] (the "Notes") under the above Program pursuant to the terms of issue
set out in the Pricing Supplement which we are faxing herewith.
[The selling commission in respect of the Notes will be [ ] per cent. of the
nominal amount of the Notes and will be deductible from the net proceeds of
the issue.]
The Notes are to be credited to [Euroclear/Clearstream, Luxembourg] account
number [ ] in the name of [Name of Dealer].
Please confirm your agreement to the terms of issue by signing and faxing to
us a copy of the following Pricing Supplement. Please also fax a copy of the
Pricing Supplement to the Agent.
For and on behalf of [Name of Dealer]
By:
________________________
Authorised signatory
124
ANNEXE C
FORM OF PRICING SUPPLEMENT
[Date]
[Ciba Specialty Chemicals Corporation/
Ciba Specialty Chemicals PLC/
Ciba Spezialitatenchemie Holding Deutschland GmbH/
Ciba Specialty Chemicals Eurofinance Ltd.]
Issue of [Aggregate Nominal Amount of Tranche] [Title
of Notes] Guaranteed by Ciba Specialty Chemicals
Holding Inc.
under the USD 2,000,000,000
Euro Medium Term Note Program
This document constitutes the Pricing Supplement relating to the issue of
Notes described herein. Terms used herein shall be deemed to be defined as
such for the purposes of the Conditions set forth in the Offering Circular
dated [ ]. This Pricing Supplement must be read in conjunction with such
Offering Circular.
[Include whichever of the following apply or specify as "Not Applicable"
(N/A). Note that the numbering should remain as set out below, even if "Not
Applicable" is indicated for individual paragraphs or sub-paragraphs. Italics
denote directions for completing the Pricing Supplement.]
[If Notes issued by Ciba Specialty Chemicals PLC must be redeemed before the
first anniversary of their date of issue, the minimum redemption amount must
be (pound)100,000 or its equivalent in any other currency.
If Notes issued by any other Issuer (including Notes denominated in sterling),
in respect of which the issue proceeds are to be accepted in the United
Kingdom or whose issue otherwise constitutes a contravention of section 19 of
the Financial Services and Markets ▇▇▇ ▇▇▇▇, must be redeemed before the first
anniversary of their date of issue, the minimum redemption amount must be
(pound)100,000 or its equivalent in any other currency.]
1. (i) Issuer: [ ]
(ii) Guarantor: Ciba Specialty Chemicals Holding Inc.
2. (i)] Series Number: [ ]
[(ii) Tranche Number: [ ]
(If fungible with an
existing Series, details
of that Series,
including the date on
which the Notes become
fungible)]
3. Specified Currency or Currencies: [ ]
125
4. Aggregate Nominal Amount:
- Tranche: [ ]
- Series: [ ]
5. Issue Price of Tranche: [ ] percent
[Net proceeds] (required only for listed issues)
6. Specified Denominations: [In the case of Notes with a maturity of 183 days or
less issued by (i) Ciba Specialty Chemicals
Corporation and (ii) where proceeds of the issuance
are on-lent to a U.S. entity, the minimum
denomination for such Notes shall be USD 500 000 (or
the equivalent thereof at exchange rates applicable
on the relevant date of calculation)]
7. [(i)] Issue Date: [ ]
(ii) Interest Commencement Date
(if different from the Issue Date): [ ]]
8. Maturity Date: [Fixed rate - specify date/
Floating rate - Interest Payment Date falling in
[specify month and year]]
9. Interest Basis: [[ ] percent Fixed Rate]
[[LIBOR/EURIBOR] +/- [ ] percent Floating
Rate]
[Zero Coupon]
[Indexed Interest]
[specify other]
(further particulars specified below)
10. Redemption/Payment Basis: [Redemption at par]
[Indexed Redemption]
[Dual Currency]
[Partly Paid]
[Installment]
[specify other]
11. Change of Interest Basis or [Specify details of any provision for change of Notes
Redemption/Payment Basis: into another Interest Basis or Redemption/Payment Basis]
12. Put/Call Options: [Investor Put]
[Issuer Call]
[(further particulars specified below)]
126
13. Listing: [Luxembourg/specify other/None]
14. Method of distribution: [Syndicated/Non-syndicated]
PROVISIONS RELATING TO INTEREST (IF ANY) PAYABLE
15. FIXED RATE NOTE PROVISIONS [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Rate[(s)] of Interest: [ ] percent per annum [payable
[annually/semi-annually/quarterly/monthly] in arrears]
(ii) Interest Payment Date(s): [ ] in each year
(iii) Fixed Coupon Amount(s): [ ] per [ ] in nominal amount
(iv) Broken Amount(s): [Insert particulars of any initial or final broken
interest amounts which do not correspond with the
Fixed Coupon Amounts]
(v) Fixed Day Count Fraction: [30/360 or Actual/Actual (ISMA) or specify other]
(Note that if interest is not payable on a regular
basis (for example, if there are Broken Amounts
specified) Actual/Actual (ISMA) will not be a
suitable Fixed Day Count Fraction)
(vi) Interest Determination [ ] in each year
Date(s): [Insert interest payment dates except where there
are long or short periods. In these cases,
insert regular interest payment dates]
(NB: Only relevant where Day Count Fraction is
Actual/Actual (ISMA))
(vii) Other terms relating to
the method of calculating
interest for Fixed
Rate Notes: [None/Give details]
16. FLOATING RATE NOTE PROVISIONS [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Specified Period(s)/
Specified Interest Payment
Dates: [ ]
127
(ii) Business Day Convention: [Floating Rate Convention/Following Business Day
Convention/Modified Following Business Day
Convention/Preceding Business Day Convention/[specify
other]]
(iii) Additional Business
Center(s): [ ]
(iv) Manner in which the Rate
of Interest and Interest
Amount is to be determined: [Screen Rate Determination/ISDA Determination/
specify other]
(v) Party responsible for
calculating the Rate of
Interest and Interest
Amount (if not the
Principal Paying Agent): [ ]
(vi) Screen Rate Determination:
- Reference Rate: [ ]
(Either LIBOR, EURIBOR
or other, although
additional information
is required if other -
including fallback
provisions in the Agency
Agreement)
- Interest Determination [ ]
Date(s): (Second London business
day prior to the start
of each Interest Period
if LIBOR and second
TARGET day prior to the
start of each Interest
Period if EURIBOR)
- Relevant Screen Page: [ ]
(in the case of EURIBOR, if not Telerate
248 ensure it is a page which shows
a composite rate)
(vii) ISDA Determination:
- Floating Rate Option: [ ]
- Designated Maturity: [ ]
- Reset Date(s): [ ]
(viii) Margin(s): [+/-] [ ] percent per annum
(ix) Minimum Rate of Interest: [ ] percent per annum
128
(x) Maximum Rate of Interest: [ ] percent per annum
(xi) Floating Day Count Fraction:[ ]
(xii) Fall back provisions,
rounding provisions and any
other terms relating to the
method of calculating
interest on Floating Rate
Notes, if different from
those set out in the
Conditions: [ ]
17. ZERO COUPON NOTE PROVISIONS [Applicable/Not Applicable]
(If not applicable, delete the
remaining sub-paragraphs of this
paragraph)
(i) Accrual Yield: [ ] percent per annum
(ii) Reference Price: [ ]
(iii) Any other formula/basis of
determining amount payable: [ ]
(Consider applicable day count fraction if euro
denominated)
18. Indexed Interest Note Provisions [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Index/Formula: [give or annex details]
(ii) Calculation Agent responsible for
calculating the principal and/or
interest due: [ ]
(iii) Provisions for determining coupon
where calculation by reference to
Index and/or Formula is [ ]
impossible or impracticable:
(iv) Specified Period(s)/Specified [ ]
Interest Payment Dates:
(v) Business Day Convention: [Floating Rate Convention/Following Business Day
Convention/Modified Following Business Day
Convention/Preceding Business Day Convention/specify
other]
129
(vi) Additional Business Center(s): [ ]
(vii) Minimum Rate of Interest: [ ] percent per annum
(viii) Maximum Rate of Interest: [ ] percent per annum
(ix) Floating Day Count Fraction: [ ]
19. Dual Currency Note Provisions [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Rate of Exchange/method of
calculating Rate of Exchange: [give details]
(ii) Calculation Agent, if any,
responsible for calculating the
principal and/or interest due: [ ]
(iii) Provisions applicable where
calculation by reference to Rate
of Exchange is impossible or [ ]
impracticable:
(iv) Person at whose option Specified
Currency(ies) is/are payable: [ ]
PROVISIONS RELATING TO REDEMPTION
20. Issuer Call: [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Optional Redemption Date(s): [ ]
(ii) Optional Redemption Amount(s)
and method, if any, of
calculation of such amount(s): [ ]
(iii) If redeemable in part:
(a) Minimum Redemption Amount [ ]
130
(b) Higher Redemption Amount [ ]
(iv) Notice period (if other than as
set out in the Conditions): [ ]
21. Investor Put: [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Optional Redemption Date(s): [ ]
(ii) Optional Redemption Amount(s) and
method, if any, of calculation of
such amount(s): [ ]
(iii) Notice period (if other than as
set out in the Conditions): [ ]
22. Final Redemption Amount [Par/specify other/see Appendix]
23. Early Redemption Amount(s) payable on
redemption for taxation reasons or on
event of default and/or the method of
calculating the same (if required or if
different from that set out in Condition
6(f)): [ ]
GENERAL PROVISIONS APPLICABLE TO THE NOTES
24. Form of Notes: Temporary Global Note exchangeable for a
Permanent Global Note which is exchangeable for
Definitive Notes [on 60 days notice given at any
time/only upon an Exchange Event] [n.b. the
latter option is not available to Ciba Specialty
Chemicals Corporation or where proceeds are to be
on-lent to a United States entity].
[Temporary Global Note exchangeable for
Definitive Notes on and after the Exchange Date.]
25. Additional Financial Center(s) or other
special provisions relating to Payment
Dates: [Not Applicable/give details] (Note that this item
relates to the place of payment and not
Interest Period end dates to which item 16(iii) relates)
131
26. Talons for future Coupons or Receipts to
be attached to Definitive Notes (and dates
on which such Talons mature): [Yes/No. If yes, give details]
27. Details relating to Partly Paid Notes:
amount of each payment comprising the
Issue Price and date on which each
payment is to be made and, if different
from those specified in the Temporary
Global Note, consequences of failure to
pay, including any right of the Issuer [Not Applicable/give details]
to forfeit the Notes and interest due on
late payment:
28. Details relating to Installment Notes:
amount of each installment, date on which
each payment is to be made: [Not Applicable/give details]
29. Redenomination applicable: Redenomination [not] applicable
(If Redenomination is
applicable, specify
either the applicable
Fixed Day Count Fraction
or any provisions
necessary to deal with
floating rate interest
calculation (including
alternative
reference rates))
30. Details relating to Installment Notes:
Specify Installment Amounts and
Installment Dates: [Not Applicable/give details]
31. Other terms or special conditions: [Not Applicable/give details]
DISTRIBUTION
32. (i) If syndicated, names of Managers: [Not Applicable/give names]
(ii) Stabilizing Manager (if any): [Not Applicable/give name]
33. If non-syndicated, name of relevant Dealer: [Not Applicable/give name]
34. Whether TEFRA D rules applicable or TEFRA [TEFRA D/TEFRA not applicable]
rules not applicable:
132
35. Additional selling restrictions: [Not Applicable/give details]
OPERATIONAL INFORMATION
36. Any clearing system(s) other than
Euroclear and Clearstream, Luxembourg and [Not Applicable/give
the relevant identification number(s): name(s) and number(s)]
37. Delivery: Delivery [against/free of] payment
38. Additional Paying Agent(s) (if any): [ ]
SPECIFIC PROVISIONS FOR ISSUES OF NOTES BY CIBA SPECIALTY CHEMICALS
EUROFINANCE LTD. ONLY(1)
39. The following additional disclosure is
required by Bermuda Law: SPECIFY, IF APPLICABLE:
[The minimum subscription amount
which must be raised from the issue of Notes
by Ciba Specialty Chemicals Eurofinance
Ltd. under this offer required for (a) the
payment of expenses of the Issuer (b) working
capital purposes for the Issuer and (c) the other
matters referred to in Section 28 of the
Bermuda Companies Act 1981 is US$[ ]/There is
no minimum subscription amount which must be
raised from the issue of Notes by Ciba Specialty
Chemicals Eurofinance Ltd [has not] borrowed
any money in respect of the foregoing matters.
Ciba Specialty Chemicals Eurofinance Ltd. [is/is
not] responsible for its own expenses in
connection with the offer.
_______________________________________________________________________________
ISIN: [ ]
Common Code: [ ]
_______________________________________________________________________________
[LISTING APPLICATION
This Pricing Supplement comprises the details required to list the issue of
Notes described herein pursuant to the listing of the USD 2,000,000,000 Euro
Medium Term Note Program of Ciba Specialty Chemicals Corporation/Ciba
Specialty Chemicals PLC/Ciba Spezialitatenchemie Holding Deutschland GmbH/Ciba
Speciality Chemicals Eurofinance Ltd.]
_________________________
(1) Offers of Notes issued by Ciba Specialty Chemicals Eurofinance Ltd. may
be subject to additional disclosure requirements to satisfy Bermudian
prospectus requirements.
133
RESPONSIBILITY
The Issuer and the Guarantor accept responsibility for the information
contained in this Pricing Supplement.
Signed on behalf of the Issuer: Signed on behalf of the Guarantor:
By:_______________________________ By:________________________________
Duly authorized Duly authorized
By:________________________________
Duly authorized
134
ANNEXE D
TRADING DESK AND ADMINISTRATIVE INFORMATION
The Issuers
CIBA SPECIALTY CHEMICALS CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Treasurer
CIBA SPECIALTY CHEMICALS PLC
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Telefax: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Treasurer
CIBA SPEZIALITATENCHEMIE HOLDING ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Telefax: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Attention: Treasurer
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
c/o Reid Management Limited
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
PO Box HM1179
▇▇▇▇▇▇▇▇ HMEX
Bermuda
Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
135
By:
The Guarantor
CIBA SPECIALTY CHEMICALS HOLDING INC.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: Group Treasurer
The Dealers
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Telefax ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: MTN Trading
DEUTSCHE BANK AG LONDON
Winchester House
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Telex: 94 01 5555 DBLN G
Telefax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: MTN Desk
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Telex: 94012165 GSHH G
Telefax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Euro Medium Term Note Desk
136
▇.▇. ▇▇▇▇▇▇ SECURITIES LTD.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Telex: 8954804 MGLTD G
Telefax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Euro Medium Term Note Desk
UBS AG, ACTING THROUGH ITS BUSINESS GROUP UBS WARBURG
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Telex: ▇▇▇▇▇▇ ▇▇▇▇ ▇
Telefax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: MTNs and Private Placements
THE AGENT
JPMorgan Chase Bank
Trinity Tower
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Telex: 8954681 CMB G
Telefax: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Attention: Manager, Institutional Trust Services
137
SIGNATORIES
THE ISSUERS
CIBA SPECIALTY CHEMICALS CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Treasurer
By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
CIBA SPECIALTY CHEMICALS PLC
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Telefax: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Treasurer
By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
CIBA SPEZIALITATENCHEMIE HOLDING ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Telefax: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Treasurer
By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
138
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
c/o Reid Management Limited
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
PO Box HM1179
▇▇▇▇▇▇▇▇ HMEX
Bermuda
Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
By: ▇▇▇▇▇▇ ▇▇▇▇▇
The Guarantor
CIBA SPECIALTY CHEMICALS HOLDING INC.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telefax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: Group Treasurer
By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
The Agent
JPMORGAN CHASE BANK, LONDON BRANCH
Trinity Tower
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Telex No: 8954681 CMB G
Telefax No: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Attention: Manager, Institutional Trust Services
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
139
THE LUXEMBOURG PAYING AGENT
▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A.
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▇-▇▇▇▇
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All communications should be sent care of the Agent
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
CONFORMED COPY
Dated 27th March, 2002
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
as Issuers
- and -
CIBA SPECIALTY CHEMICALS HOLDING INC.
as Guarantor
- and -
JPMORGAN CHASE BANK
as Agent
- and -
▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A.
as Paying Agent
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AGENCY AGREEMENT
in respect of a
U.S.$2,000,000,000
EURO MEDIUM TERM NOTE PROGRAM
(Amended and Restated)
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[▇▇▇▇▇ & OVERY LOGO]
London
CONTENTS
Clause Page
1. Definitions and interpretation..........................................2
2. Appointment of Agent and Paying Agents..................................7
3. Issue of Temporary Global Notes.........................................8
4. Determination of Exchange Date, issue of Permanent Global Notes and
Definitive Notes and determination of end of Distribution
Compliance Period.....................................................9
5. Issue of Definitive Notes..............................................11
6. Terms of Issue.........................................................11
7. Payments...............................................................12
8. Determinations and notifications in respect of Notes and Interest
Determination........................................................14
9. Notice of any withholding or deduction.................................16
10. Duties of the Agent in connection with early redemption................16
11. Receipt and Publication of Notices.....................................17
12. Cancellation of Notes, Receipts, Coupons and Talons....................17
13. Issue of replacement Notes, Receipts, Coupons and Talons...............18
14. Copies of documents available for inspection...........................20
15. Meetings of Noteholders................................................20
16. Commissions and expenses...............................................20
17. Indemnity..............................................................21
18. Repayment by the Agent.................................................21
19. Conditions of appointment..............................................21
20. Communication between the parties......................................22
21. Changes in Agent and other Paying Agents...............................23
22. Merger and consolidation...............................................24
23. Notification of changes to Paying Agents...............................25
24. Change of specified office.............................................25
25. Notices................................................................25
26. Taxes and stamp duties.................................................26
27. Currency indemnity.....................................................26
28. Amendments.............................................................26
29. Descriptive headings...................................................27
30. Contracts (Rights of Third Parties) Act 1999...........................27
31. Governing law and submission to jurisdiction...........................27
32. Counterparts...........................................................27
Schedules
Appendix A..................................................................28
Form of Calculation Agency Agreement........................................28
1. Terms and Conditions of the Notes..................................38
2. Forms of Global and Definitive Notes, Receipts, Coupons and Talons.61
3. Form of Deed of Guarantee..........................................96
4. Provisions for Meetings of Noteholders............................101
5. Form of Put Notice................................................108
6. Operating & Administrative Procedures Memorandum..................110
Signatories................................................................134